Workers' compensation
|
|
Workers' compensation programs and laws exist to protect employees who are injured while on the job. These laws are usually a feature of highly developed industrial societies. Workers' compensation laws are often only implemented after long and hard fought struggles by labour unions. There are often benefits available to dependents of workers killed on the job.
Workers' compensation laws were first enacted in Europe and Oceania, with the United States following shortly thereafter. Workers' compensation programs were a key component of the labour structure of the former Soviet Union and soviet-style societies.
| Contents |
Compensation prior to statutory law
Prior to statutory law, employees who were injured on the job were only able to pursue their employer through civil or torts law. In some countries like the United Kingdom this was difficult due to the legal view of employment as a master-servant relationship. Proof of employer malice or negligence was usually required, a difficult thing for an employee to prove. While employer liability was unlimited, courts usually awarded in favour of the employer, and did not take into account the full losses experienced by workers: medical costs, lost wages, and damages for loss of future earning capacity.
Statutory compensation law
Statutory compensation law provided a number of advantages to both employees and employers. Employees have been guaranteed fixed and dependable payments to compensate for injuries. Employers have been guarenteed fixed and dependable liabilities, which may be insured against. However, the specific form of the statutory compensation scheme may provide detriments. Statutory schemes often award a set amount based on the level of injury: so much for a toe, so much for an arm to the shoulder, so much for total spinal injury. These payments are based on the ability of the worker to find employment in a partial capacity: a worker who has lost an arm can still find work as a proportion of a fully-able person. This does not account for the difficulty in finding work suiting disablity. When employers are required to put injured staff on "light-duties" the employer may simply state that no light duty work exists, and sack the worker as unable to fulfill specified duties. When new forms of workplace injury are discovered, for instance: stress repetitive strain injury silicosis; the law often lags behind actual injury and offers no suitable compensation, forcing the employer and employee back to the courts. Finally, caps on the value of disabilities may not reflect the total cost of providing for a disabled worker. The government may legislate the value of total spinal incapacity at far below the amount required to keep a worker in reasonable living for the remainder of their life.
Statutory compensation in Australia
As Australia experienced a relatively influential labour movement in the late 19th and early 20th century, statutory compensation was implemented very early in Australia. Current systems of compensation include Workcover in New South Wales.
Statutory compensation in the United States
Workers' compensation laws were enacted to mitigate litigation expenses for both sides and to eliminate the need for injured workers to prove their injuries were the employer's "fault." The first US law was passed in Maryland in 1902. In the next twenty years, many states followed. This system was formerly known as workman's compensation.
In the United States most employees who are injured on the job have an absolute right to medical care for that injury, and in many cases monetary payments to compensate for resulting temporary or permanent disabilities.
Most employers are required to carry workers' compensation insurance, and in most states there are heavy financial penalties for an employer's not having insurance. In many states there are public uninsured employer funds to pay benefits to workers employed by companies who illegally fail to purchase insurance. Insurance policies are available to employers through commercial insurance companies: if the employer is deemed an excessive risk to insure at market rates, it can obtain coverage through an assigned-risk program.
It is illegal in some states (although not in others) for an employer to fire an employee for reporting a workplace injury or for filing a workers' compensation claim; it is illegal in most states to not hire someone for having filed a workers' compensation claim in the past. However, employers can consult commercial databases of claims data and it would seem nearly impossible to prove that an employer discriminated against a job applicant because of his or her workers' compensation claims history. To ameliorate against discrimination of this type, some states have created a "subsequent injury trust fund" which will reimburse insurers for benefits paid to workers who suffer aggravation or recurrence of a compensable injury.
It is also illegal to falsely claim workers' compensation benefits. Some employers hire private investigators to surreptitiously videotape claimants; some of these sub rosa videos have shown employees, who claimed to be disabled, engaging in sports or other strenuous physical activity. TV shows have recently been made using these videos.
Some employers vigorously contest employee claims for workers' compensation payments; in any contested case, or in any case involving serious injury, an attorney with specific experience in handling workers' compensation claims on behalf of injured workers should be consulted. Many if not most state laws provide that a claimant's attorney fees are limited to a certain percentage of an award, and may be paid only from a successful recovery or award.
Alternate forms of statutory compensation in the United States
Employees of common carriers by railroad have a statutory remedy under the federal Employers' Liability Act, 45 U.S.C. sec. 51, which provides that a carrier "shall be liable" to an employee who is injured by the negligence of the employer. To enforce his compensation rights, the employee may file suit in United States district court or in a state court. The FELA remedy is based on tort principles of ordinary negligence and differs significantly from most state workers' compensation benefit schedules.
Seamen employed on United States vessels who are injured by the negligence of the vessel's owner or operator can sue their employers under the Jones Act, 46 U.S.C.App. 688. The Jones Act remedy is essentially identical to that provided by FELA.
Opposition to statutory compensation in the United States
Opponents argue that workers' compensation laws may hurt the U.S. workers they were designed to help. Large employers may have an incentive to move segments of their business -- and their jobs -- to areas where workers' compensation benefits (and other employee protections) are less generous or are harder to obtain. This is because the United States lacks a unified and national set of employee entitlements covering minimum wage, wage and hour, or collective bargaining rights in addition to compensation. Labour unions describe this system as a race to the bottom, as state legislatures cut employee entitlements to attract capital.
United States employers can also move some operations to foreign countries where employee entitlements are much lower than in the U.S., and where there may be no workers' compensation or other legal remedies at all for workers who are injured or who are exposed to hazardous substances while on the job. Such countries may also have few or no legal protections available for employees in areas such as job discrimination, social security, or the right to organize or to join a union.
Some small business owners complain that the cost of workers’ compensation, which they pay in the form of insurance premiums, places a heavy burden on them.
Economists who favor the distributism system of economics cite workers compensation as an example of how far the modern capitalist economic system approaches what they call the "servile state" or "slavery worker" system. They say that in past times when ownership of the means of production were more widely distributed, it would not be natural to hold an employer responsible for a workers injury, since the worker was freely choosing to work for that employer. Distributists assert that in modern times, with the vast majority of people dispossessed of the means of production, requiring employers to have workers compensation shows how much workers really are dependent on being employed and are essentially forced to work for someone else to survive. Some distributists who feel that capitalism is heading unstoppably in the direction of a slavery system, feel that this will come about by workers exchanging their personal freedoms for economic benefits like workers' compensation.
See also
External links
- Workers' Compensation (http://ww3.definitions-legal.com:8567/personal-injuries/workers-compensation.htm) -- Information
- Workers' Compensation Lawyers (http://ww3.definitions-legal.com:8567/personal-injuries-3.htm)
- All 50 States' and D.C.'s Home Page and Workers' Compensation Agencies (http://www.comp.state.nc.us/ncic/pages/all50.htm)
- Workers' Compensation Claims from a law firm's perspective (http://www.ashcraftandgerel.com/workcomp.html)de:Unfallversicherung