Workers describe the effect of the workers' compensation process on their health: A Québec study
Introduction
This article reports on a study designed to examine the workers' experience of the workers' compensation process and to look at the effects of the process on the physical and mental health of claimants. It has been close to two decades since David Wexler and Bruce Winick brought to the fore the Therapeutic Jurisprudence analytical framework that underlines the importance of examining the effect of legal systems and practice on the health of those who appear before the courts (Wexler, 1990, Wexler and Winick, 1996). Many studies have relied on teachings of Therapeutic Jurisprudence to look at the impact of law and legal practice on juvenile offenders (Weisz, Lott, & Thai, 2002), psychiatric patients (Roe & Ronen, 2003), claimants in tort law (Pryor, 2006, Shuman, 1994–1995, Shuman, 2000), the doctor–patient relationship (Hall, 2002–2003), the insurer–patient relationship (Cerminara, 2005) and victims of crime (Desrosiers & Langevin, 1998); however, few have taken an approach based on social psychology (Carson, 2003). As Carson points out, “Analyses or explanations in terms of the distribution of power or other resources, or in terms of ideologies and the control of meanings, are unlikely to feature in TJ papers” (Carson, 2003, p. 126). Fewer still have examined administrative law, including social legislation through a Therapeutic Jurisprudence lens.
Even before the term Therapeutic Jurisprudence was coined, Terence Ison (1986) addressed the issue of workers' compensation structures and their impact on the health of claimants. At that time, as they are today, medical evaluation practices were a key component to the adjudication of compensation claims, and Ison eloquently demonstrated ways in which the medico-legal process could give rise to anti-therapeutic consequences.
A review of occupational health literature shows that research from the health sciences hypothesizes that anti-therapeutic consequences are attributable to the involvement of a patient with a member of the legal profession (Braun, Doehr, Mosqueda, & Garcia, 1999) or access to compensation (Cassidy et al., 2000), while legal researchers have described the anti-therapeutic effects of the intervention of health professionals in the compensation process (Ison, 1986). Literature on vocational rehabilitation and return to work has identified pending litigation as a factor that hinders the rehabilitation process (Baril, Clarke, Friesen, Stock, & Cole, 2003). In the field of injury compensation, controversy still surrounds the concept of secondary gain, both in the legal and the medical literature (Shuman, 2000, pp. 887–888).
Until recently, few studies have examined from the point of view of the injured workers the workers' compensation process (Beardwood et al., 2005, Kirsh and McKee, 2003, Roberts-Yates, 2003, Strunin and Boden, 2004) or the return to work process (Roberts-Yates, 2003, Sager and James, 2005, Tarasuk and Eakin, 1995), although some studies have included both workers and employers when studying the return to work process (Baril et al., 2003, Eakin et al., 2003). In a seminal article on approaches to the study of the social consequences of occupational injury and disease, Dembe proposes a model that takes into consideration a broad variety of systemic factors that need to be studied if we are to understand the process by which work injury, its treatment and the compensation process contribute to ill health (Dembe, 2001). The present study looks specifically at the compensation process in order to identify aspects that positively or negatively affect the workers' experience and potentially their health.
In order to understand the results of this study it is necessary to understand the basic premises and structures of the Québec workers' compensation system, a system that closely resembles those of other Canadian provinces1 and shares many similarities with those of Australia and the United States. The Québec workers' compensation system is a “no-fault” system in the sense that access to compensation is available regardless of proof of fault and regardless of legal liability of the employer. Workers who are covered by the system, over 90% of employees in Québec, have no choice but to claim under the workers' compensation system in the event of occupational injury or illness and all forms of civil liability of the worker's employer is precluded. Protection from law suit extends to all employers whose workers have coverage under the system, although in Québec lawsuits remain possible against employers other than the worker's own employer, in exceptional circumstances, as in cases of criminal negligence2 while other provinces preclude all law suits against any insured employer including doctors who are protected from malpractice suits.3 The “no-fault” nature of the scheme does not imply that no fault was committed by the employer, only that the existence of such a fault is irrelevant in the adjudication process, so that at no time in the course of the compensation process will the employer be blamed for causing the injury or illness, regardless of the circumstances, and this is essentially true with regard to the worker's behaviour, although an injury that is not serious and that is attributable exclusively to the worker's gross negligence is excluded from coverage.4
The claim is administered by the Commission de la santé et de la sécurité du travail or CSST, a public administrator-insurer financed exclusively by employer premiums. No private insurers are involved in workers' compensation in any Canadian province. All decisions of the CSST adjudicators are subject to internal review, without a hearing, and to an external appeal board, which holds a public hearing, the Commission des lésions professionnelles (CLP). Both the worker and the employer have the right to appeal any CSST decision. Unlike the situation in most North American jurisdictions, the CSST is bound by the opinion of the treating physician with regard to decisions on most medical issues, including diagnosis, treatment, date of stabilization of the injury, functional limitations and degree of permanent impairment5 as well as on early return to work issues.6 If either the employer or the CSST disagrees with the opinion of the treating physician, it may be set aside through a complex procedure that includes obtaining a second medical opinion, submitting that written opinion to the treating physician and then, if this does not bring about a change of opinion on the part of the treating physician, both medical opinions are sent to a third medical evaluator from the Bureau d'évaluation médicale. Many medical opinions may be questioned in the same file, so that it is not uncommon for workers to be submitted to a large number (in some cases dozens) of medical evaluations that are not in any way part of the therapeutic process. Decisions regarding these medical opinions can then be appealed to the CLP. Judicial review is considered by law to be an extraordinary measure and is rare.
In recent years the system has become increasingly adversarial. In 2004–2005 there were 27,141 appeals filed with the CLP (CLP, 2005), a huge number when compared to the appeals filed in the equivalent tribunal of Ontario, the Workers' Safety and Insurance Appeal Tribunal, which received 3922 appeals in 2003 and 3781 appeals in 2004 (WSIAT, 2005, p. 35). Even compared to its own record, appeals are up by close to 30% in Québec since 1999 (CLP, 2000). The CSST received 152,799 claims in 2004, (CSST, 2005). Although appellants are unlikely to be the same individuals as claimants in a given year, and even taking into consideration the fact that many different decisions may be contested in a given file, the number of appeals still seems extraordinary, particularly in the context of a no-fault system designed to avoid controversy and to preserve harmony between the worker and the employer (Lippel, 1986).
Although experience rating is used in both provinces as a cost incentive to encourage employers to act more responsibly, the way the system works in Québec seems to encourage a great deal of litigation, as every dollar spent on a worker, be it for benefits, health care, rehabilitation or permanent disability, will have a direct effect on the assessment rates of the medium and large employers. Since 1998, even the small employers are encouraged to share their risks by joining a mutual administrator (mutuelle de prévention), and now small businesses who are members of a mutuelle are pressured to contest claims as the assessments of the mutuelles, as well as those of the larger firms, vary according to the compensation experience in previous years, which provides a clear incentive to employers to contest claims in order to keep costs down. Although few studies have examined mechanisms by which experience rating actually affects prevention behaviour (Tompa, Trevithick, & McLeod, 2007), there is some evidence that only the very large firms invest in health and safety professionals, while the others will invest in claims management specialists (Thomason & Pozzebon, 2002).
Unlike the situation in the United States, where claims behaviour is driven by accessibility of health care, even though that health care may sometimes be inadequate (Dembe, 1999), all Canadian residents have access to public health insurance, and workers whose claims are denied will nevertheless access free health care, although availability of specialists and some services varies geographically, and long waiting lists may exist for non-emergency care.
Section snippets
Methods
In a previous study (Lippel, 1999b) we relied on classical legal research methods, including analysis of comparative legal literature and case law regarding disability engendered by the workers' compensation system, to provide an overview of the therapeutic and anti-therapeutic consequences of the compensation system. The article concluded that victims of work accidents were being blamed in a broad range of situations in what was ostensibly a no-fault system.
This study relied on participatory
How the system affects workers' health
Workers spontaneously identified numerous examples of negative health effects, although there were also illustrations of positive health effects associated with the workers' compensation claim. Most comments addressed mental health issues, although in a few cases physical health outcomes were affected by the process.
Physical health outcomes
Physical health was positively affected by more expeditious access to health care, the CSST exerting influence on waiting lists and access to specialists:
“The date I was given for
Discussion
Many aspects of our findings were very similar to those of researchers in other jurisdictions. In a study of injured workers in South Australia, Roberts-Yates (2003, p. 904) noted that “A considerable percentage of the interviewees concluded that being on WorkCover is in fact the greatest disability of all and a major source of stress. Many respondents were troubled by the reinforcement of stereotypes with workers portrayed as abusing the system.” This was a key finding of our study, and a key
Conclusion
This study was designed to shed light on the experiences of injured workers who seek compensation, but results do not reflect the situation of a representative sample of all injured workers and cannot be generalized to the injured worker population of Québec. Limitations of the study include possible bias in the recruitment process, given that participants self-selected to tell their stories, and lack of objective measures of health outcomes attributed to the process by the workers.
Acknowledgements
The author wishes to acknowledge the financial support of the Social Sciences and Humanities Research Council of Canada and the research assistance support of Joseph Caron, Marie-Claire Lefebvre, Chantal Schmidt and Leandro Steinmander who all contributed to the successful completion of the study. The Union des travailleuses et travailleurs accidentés de Montréal and the Assemblée des travailleuses et travailleurs accidentés du Québec, community organisations representing the interests of
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