Seminar Presentation 6-4

6-4 (Presentation within Topical Seminar 6):
Blaming workers in a no-fault system: a source of perceived injustice?

Presented by: Katherine Lippel

Seminar Details

Part of Topical Seminar 6: Justice in the Compensation System
Tuesday September 30

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Authors

Lippel K1

  1. University of Ottawa, Faculty of Law, Civil Law Section, Canada Research Chair in Occupational Health and Safety Law

Abstract

Background

Qualitative studies (Lippel, 1999, 2007; MacEachen et al, 2010) have explored the experiences of injured workers in order to better understand compensation systems’ health effects, and have shown that factors associated with the adversarial process, including stigma and power imbalance are sources of workers’ perceptions of negative health effects. Others have found an association between compensation and disability duration, but rarely examine the nature of the process or experiences of workers (Grant & Studdert, 2009). Studies that explored the measure of “compensation stress” found it to be associated with recovery, suggesting that its reduction could reduce disability (Grant et al 2014). While quantitative studies can document workers’ exposure to stress, understanding the mechanisms of the system that can trigger perceptions of injustice requires a detailed understanding of the system itself.

Methods

Methods: Using a therapeutic jurisprudence framework this study applies classic legal analysis of workers’ compensation appeal tribunal decisions from Québec (1998-2013) to examine, from the standpoint of workers (Eakin, 2010), the application of legal rules that can contribute to a worker’s perception of injustice. Legally relevant administrative appeal tribunal decisions on compensation claims for musculoskeletal disorders were chosen from the data bank of the Commission des lésions professionnelles.

Results

Results: An overview of the case law on all issues relating to a claim illustrates pitfalls confronting workers who apply for compensation. These include rules governing time limits for a claim, evidence required to prove diagnosis, work exposures, disability and work-relatedness. Practices illustrated by the case law show that while health care practitioners may try to encourage workers to stay at work, and to sustainably return to work after injury, workers may be at risk of losing access to compensation when disabled because they have sought to stay at work for as long as possible or return to work despite previously documented “functional limitations”.

Conclusions

Conclusions: While Québec’s workers’ compensation system is, in many respects, one of the most generous in Canada (Lippel, 2012), this analysis shows that adversarial practices generated by experience rating mechanisms designed to promote greater employer involvement in the management of workers’ compensation claims expose workers to contradictory messages and stigma. A holistic view of the application of rules intrinsic to a workers’ compensation system can provide useful information for policy makers to enable them to reduce situations of injustice/perceived injustice.