Therapeutic and Anti-Therapeutic Consequences of Workers' Compensation

Therapeutic and Anti-Therapeutic Aspects of Tort

Research on the therapeutic and anti-therapeutic consequences of the tort process is primarily an American development,¹⁰ yet the reality of tort litigation in the United States is somewhat different from the Canadian situation. Civil litigation in the United States is highly publicized

Therapeutic and Anti-Therapeutic Aspects of “No-Fault”

It is important to contextualize the literature on “no-fault” compensation and therapeutic jurisprudence, as the reality of such systems in Canada and Québec is very different from the American situation. “No-fault” systems in the United States are essentially restricted to workers' compensation cases, while several Canadian provinces have fully replaced tort-based compensation by “no-fault” compensation for automobile accident victims.²²

Blaming the Victim in a “No-Fault” Compensation Process

A historical examination of the emergence of no-fault systems in the field of workers' compensation shows that they were initially developed, at least in part, to discard anti-therapeutic aspects of the tort system. When Bismarck first introduced the concept of collective responsibility for workplace injury, it was clear that the pursuit of social harmony was a primary goal. Legislation was said to be urgently needed to prevent further unionization of workers, workers who were drawn to unions,

Malingering, Hysteria, or System-Generated Disability?

A common criticism of workers' compensation is that it leads to compensation neurosis, malingering, or secondary gain syndrome, yet few studies have shown a difference in healing rates that may be attributed to the compensation process.³⁹ Even in those studies that have shown a relationship between access to compensation and date of return to work, Ison points out that there are often explanations for a

Work Accident or Occupational Disease?

In Québec, a work accident is defined as a sudden and unforeseen event that arises out of or in the course of employment. For years it has been clear that the concept covers intentional assault by others, even though the statute has no specific provision to that effect. Employers do not question that a violent assault could constitute an “accident, but they often question whether the assault arose out of or in the course of employment. Two cases of violent assault illustrate how arguments based

Is the Worker Really Disabled?

Both employer representatives and compensation board personnel have the legal right to question the worker's allegation of disability. This line of enquiry is legitimate, yet often, both in the United States and in Canada, it is in this context that the most detrimental behavior of employers and insurers arises. Inquiries regarding this issue take many forms. It is not uncommon to come upon a file where the worker has been forced to submit to 20 or more medical exams, sometimes by doctors of

Did the Injury Cause Disability?

This question raises two issues: (a) Is the disability of a compensable nature? and (b) Is the disability caused by the workplace accident or occupational disease? The following example, drawn from a worker's experience in British Columbia, illustrates the first issue.

A woman taxi driver received multiple stab wounds in the abdomen that left her permanently scarred and sterile. Although her claim was accepted by the Board, compensation for sterility was initially denied as there was no evidence

Benefit Structures: Periodic Payments, Lump Sum, or Income Replacement?

In North America, almost all workers' compensation systems provide for periodic payments rather than the lump sum usually provided by civil courts. The way in which payments are made influences the impact on the health of the beneficiary. Ison⁷⁵ emphasizes that the periodic payment allows for more rapid provision of income to the injured worker. It allows for more flexibility, permitting payment for the duration of the actual disability rather than providing a hypothetical

Welfarization of Workers' Compensation

Over the years, many workers' compensation systems have lost their roots. Whereas, at the turn of the century, it was clear that these programs were set up in replacement of the tort system, which had failed to adequately compensate injured workers,⁸²

Perverse Effects of Experience Rating

Many of the issues identified thus far as contributing anti-therapeutic byproducts of the “no-fault” compensation process can clearly be linked to the reintroduction of the adversarial process in the context of workers' compensation. In Québec, as in other jurisdictions,⁸⁹

Recourse for Injury Caused by the Compensation Process

Even though non-tort compensation systems were initially designed to reduce or eliminate litigious behavior on the part of both claimants and defendants, they have failed to do so effectively in many cases, and the claimants often pay with their health because of flaws in the process. The following conclusion, by an American author, is also applicable in a Canadian context:

… administrative flaws in the delivery of benefits including delays and frequent contests about the compensability of

Conclusion

Non-tort systems of compensation have the potential of providing faster, less traumatizing access to compensation for disability. It is important to reflect seriously on the design of the system, so as to avoid the pitfalls that the adversarial tort system has created for victims of injury. Removing the fault from a fault-based system does not eliminate the blaming process. At times a “no-fault” system can be even more anti-therapeutic than the tort system, as it may reintroduce victim-blaming