Wednesday, 23 February 2011 20:56

Workers' Compensation: Trends and Perspectives

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Workers’ compensation systems (WCSs) were created to provide payment for medical care and rehabilitation services for workers sustaining work-related injuries and impairments. They also provide income maintenance for the injured workers and their dependants during the period of disability. They were patterned after the systems maintained by guilds and provident associations in which members made contributions to funds which then were disbursed to members unable to work because they had been injured on the job. Once their usually slender savings were exhausted, the only alternative for workers who were not members of such systems was to rely on charity or to bring suit against the employer, alleging that the injury resulted from the latter’s wilful action or negligence. Such lawsuits were rarely successful for a variety of reasons, including:

  • the employee’s inability to command the requisite legal talent and his or her lack of resources compared to those of the employer
  • the difficulty of overcoming the employer’s defence that the accident causing the injury was either an “act of God” or the result of the worker’s own ineptitude or negligence, rather than that of the employer
  • the inability of the worker to wait out the often long time period required to adjudicate civil actions.

 

WCSs are “no-fault” systems requiring only that the worker file the claim as required and provide information demonstrating that the injury/disability was “work related” as defined in the legislation or regulations creating the WCSs in the particular jurisdiction. The requisite financial support is promptly available, supplied by funds accumulated by a government agency. These funds come from taxes on employers, from mandatory insurance mechanisms sustained by premiums paid by the employers, or from varying combinations of the two. The organization and operation of WCSs are described in detail in the previous chapter by Ison.

Despite gaps and deficiencies that have been addressed by legislative amendments and regulatory revisions over the past century, WCSs have worked fairly well as a social system providing for the needs of workers injured in the course of their employment. Their initial focus was on accidents (i.e., unexpected occurrences in the workplace or on the job), which are more easily identified than occupational diseases. The immediacy of the association between the occurrence and the injury makes the relationship to the workplace more or less simple to establish within the framework of the relevant laws and regulations. As a result, safety organizations have tried to develop, with more or less success, an epidemiology of accidents defining the kind of individuals, jobs and workplace circumstances associated with particular types of injuries. This led to the development of a sizeable safety industry devoted to studying various types of work-related injuries and identifying approaches to their prevention. Employers were constrained to adopt these preventive measures in the hope of escaping the burden of the costs of preventable accidents. These costs have been expressed in terms of workplace disruptions, temporary or permanent loss of productive workers, and escalating workers’ compensation taxes and/or insurance premiums paid by employers. An added inducement has been the passage in many countries of occupational safety and health legislation that enforces the requirement that employers adopt the appropriate accident prevention measures through the use of worksite inspections and various forms of penalties for lapses in compliance.

This arrangement has not worked very well, however, in the area of occupational disease. There, the relationship between the workplace hazard and a worker’s illness is often much more subtle and more complicated, reflecting the frequently long latency period between exposure and the initial signs and symptoms, and the confounding effects of influences such as the worker’s lifestyle and behaviour (e.g., cigarette smoking) and the coincidental development of non-work-related diseases. (The latter may, however, be influenced, aggravated or even precipitated by workplace exposures that under certain circumstances may bring them under the jurisdiction of a WCS.)

This article will focus initially on the validity of two related hypotheses:

  1. WCSs are able to develop preventive programmes based on adequate workplace risk assessments formulated through analysis of data derived from compensated cases of injuries and diseases; and
  2. WCSs are able to provide potent financial incentives (e.g., premium rating or bonus malus) to persuade employers to mount effective preventive programmes (Burger 1989).

 

In short, the nature and extent of risk on the job or in the workplace may be derived by analysis of workers’ compensation data using such variables as the presence of potentially noxious agents (chemical, physical, biological and so on), the characteristics of the workers involved, the circumstances at the time of the exposure (e.g., its nature, amount and duration), the pathophysiological effects on the worker, the extent and reversibility of the resulting disease or impairment, and the distribution of such cases among jobs, workplaces and industries. Identification and rating of the potential risks would lead to the development of programmes to eliminate or control them. Implementation of these programmes would lead to a reduction of work-related injuries and diseases, which would not only be beneficial to the workers, but would also reduce the direct and indirect financial burdens that otherwise would have to be borne by the employer.

We intend to show that the connections between compensated cases, risk evaluations, effective prevention efforts and lowering of employers’ financial burdens are not as simple as is usually believed. In addition, we will discuss a number of proposals offered by occupational physicians, lawyers and ergonomists to improve our knowledge of risks, enhance safety in the workplace and introduce more justice into WCSs.

Results of Studies

Value of the compensation insurers’ database

According to Léger and Macun (1990), the value of an accident database depends on the extent to which it allows safety performance to be measured, the causes of accidents to be identified, and the exposure to risk of subgroups within the working population to be determined. Accurate and effective accident statistics have great value for the design of effective accident prevention programmes by employers, labour organizations and government inspectors.

What data are compiled?

Statistics are limited to the accidents and illnesses defined by compensation laws and regulations and, therefore, recognized by WCSs. There is much variation among the cases so recognized within any given country or jurisdiction, between different countries and jurisdictions, and over time.

For example, in France the statistics compiled by the Institut national de recherche et de sécurité (INRS) are based on a list of occupational diseases coupled with a list of sectors at risk. In Switzerland, occupational diseases are categorized by the LAA (law on accident insurance) according to their association with conditions prevailing at the worksite. There, two categories are defined: in the first, a list of noxious agents accompanied by a list of diseases is provided; in the second, a list of diseases based on having demonstrated a strong possibility of causality between exposure and illness is provided.

Definitions of occupational accidents also vary. In Switzerland, for example, commuting accidents are not considered occupational, while all events occurring at the worksite, whether or not they are related to the work activity (e.g., burns resulting from cooking lunch), are encompassed by the definition of “occupational accidents”.

Accordingly, the number of cases recognized and tabulated in a particular jurisdiction is determined by the relevant legal definitions of accidents and diseases covered by the WCS. This may be illustrated by the Swiss statistics on occupational hearing loss, which was recognized as an occupational disease during the 1955-60 period. As soon as it was recognized, there was a marked increase in the number of reported cases, which produced a comparable increase in the total number of cases of occupational disease attributable to physical agents. Then, over the following years, the numbers of these cases tended to decrease. This did not mean that occupational hearing loss was any less of a problem. Since hearing loss develops slowly over time, once the initial backlog of cases hitherto not officially recognized had been recorded, the number of new cases tabulated each year reflected the constant association between noise exposure and the risk of hearing loss. Currently, we are witnessing another marked increase in the number of reported cases caused by physical agents, reflecting the recent official recognition of musculoskeletal disorders, commonly called “ergonomic disorders”, which include tenosynovitis, epicondylitis, rotator cuff problems, carpal tunnel syndrome and others.

Reporting of Cases

It is evident in all countries that many cases of accidents or diseases considered to be work-related are not reported, either deliberately or by omission. Reporting is generally the employer’s responsibility. However, as some authors have shown, it may be to the employers’ advantage not to report, thereby not only avoiding the administrative bother, but also preserving the reputation of the enterprise as a good place to work and preventing the accumulation of claims that might result in an increase in their workers’ compensation insurance premiums or taxes. This is particularly true for cases that do not involve any lost work time as well as those that are treated by an employee health service at the worksite (Brody, Letourneau and Poirier 1990).

It is the physician’s responsibility to recognize and report cases of occupational injury and disease and to notify the patient of his or her rights to compensation. However, some cases are not reported because they are treated by general practitioners who do not recognize the work-related nature of a health problem. (A knowledge of occupational and legal aspects of health care should be an integral element of medical education. International organizations such as the ILO should encourage the inclusion of such subjects in undergraduate as well as postgraduate training for all health professionals.) Even when they do make the connection, some physicians are reluctant to accept the burden of the necessary paperwork and the risk of being required to testify in administrative procedures or hearings if the worker’s claim for compensation is contested. In some jurisdictions, the fact that statutory or scheduled fees for treating workers’ compensation cases may be lower than the physician’s customary charges may be another disincentive to proper reporting.

The reporting of cases also depends on how much workers know about their rights and the WCS under which they are covered. Walters and Haines (1988), for example, surveyed a sample of 311 unionized and non-unionized workers in a highly industrialized area of Ontario, Canada, to assess their use and knowledge of the “internal responsibility system”. This was created by local legislation to encourage employees and employers to resolve health and safety problems at the plant level. While 85% felt that their working conditions might harm their health, only one-fifth reported time lost from their jobs due to a work-related health problem. Thus, despite beliefs about the damaging effects of their work on their health, only relatively few used the rights and resources provided in the legislation. Their descriptions of their refusals to work and their worries about the health effects of their work contained very few references to the “internal responsibility system” provided by the legislation. In fact, the main contact they reported was with their supervisor rather than the designated health and safety representatives.

Awareness of the legislation was greater among unionized workers, the researchers found, and was more often associated with taking actions relating to occupational health and safety (Walters and Haines 1988).

On the other hand, some workers make claims for compensation even if the injury or disease is not related to their work, or continue to claim benefits even when they are capable of returning to work. Some studies have shown that liberal compensation coverage may even be an incentive for filing claims. According to Walsh and Dumitru (1988), in fact, “improved benefits may result in additional claim filing and injuries”. These authors, using the example of back injuries (which constitute 25% of workers’ compensation claims in the United States) note that “workers are more demanding of time off for injury when compensation is comparable to earned wages”, adding that “the system of disability compensation in the United States does increase the frequency of certain types of disability claims and contributes to delayed recovery from LBP” and that “compensation factors may delay recovery, prolong symptoms, and reinforce sick role behaviour”.

Similar observations were made by Judd and Burrows (1986), based on a study of a representative sample of Australian workers in which, in the course of one year, 59% “have been away from work for more than two months, and 38% for longer than six months.” It is suggested that “the medical and legal services may result in this high rate of prolonged invalidism” and that “recovery appears to be against the victim’s best interest, at least for the settlement of compensation”.

Admissibility of Cases

As noted above, national statistics reflect changes in the admissibility of types of cases. Examples include adding a new disease to the list of compensable diseases, as in the case of hearing loss in Switzerland; extending coverage to new types of workers, as in the changes in wage scale limits in South Africa; and extending coverage to new types of businesses.

Unlike accidents, occupational diseases are not readily compensated. A study of a large sample of workers who had lost at least one month off the job was conducted in francophone Switzerland. It confirmed that accidents were largely accepted as work-related and compensated promptly, but only a small percentage of illnesses were accepted (Rey and Bousquet 1995). The end result in cases of illness is that it is the patients’ health insurance rather than the WCS that pays the medical charges. This does not increase the cost to the employers (Rey and Bousquet 1995; Burger 1989). (It should be noted that where, as in the United States, the employer also bears the cost of general health insurance, the cost may be even greater since the fees allowed by WCSs are often lower than those charged by private health-care providers.)

Yassi (1983) wrote a report on a lecture given by Prof. Weiler, in Toronto. Some of Weiler’s remarks, quoted by Yassi, are worth mentioning here:

the Workmen’s Compensation Act worked fairly well in compensating for disability due to accidents—the same cannot be said for occupational diseases—Whereas, even in the most difficult cases of injury due to accident, the cheque was in the mail within a month or so, the average time for adjudicating cancer claims is about seven months (idem for respiratory disease claims). Only a small percentage of claims for injuries is rejected (around 2 per cent); in contrast the rejection rate for claims for serious diseases is well over 50 per cent.

Particularly striking is the under-reporting of occupational cancer cases: “Less than 15 per cent of the estimated number of occupational cancers are reported to the Board.”

The necessity of demonstrating a causal relationship between a disease and the job (e.g., a recognized toxic agent, or a disease on the accepted list) is a major obstacle for workers trying to receive compensation. Currently in most industrialized countries, the WCSs compensate less than 10% of all occupational disease cases, and most of these are relatively minor illnesses such as dermatitis. And in most of the 10% that are ultimately compensated, the basic question of compensability first had to be litigated (Burger 1989).

Part of the problem is that the legislation in the particular jurisdiction creates what have been called “artificial barriers” to compensation for occupational diseases. These include, for example, a requirement that to be compensable a disease must be peculiar to the workplace and not “an ordinary disease of life”, that it be listed on a specific schedule of diseases, that it not be an infectious disease, or that disease claims must be filed within a restrictive period starting with the time of exposure rather than the time the presence of the disease is recognized (Burger 1989).

Another deterrent has been the growing awareness that many occupational diseases are multifactorial in origin. This sometimes makes it difficult to pinpoint an occupational exposure as the cause of the disease or, conversely, allows those who would deny the worker’s claim to hold that non-occupational factors were responsible. The difficulty of proving an exclusive workplace cause-and-effect relationship has placed an often overwhelming burden of proof on the disabled worker (Burger 1989).

Mallino (1989), discussing scientific aspects of artificial barriers toward compensation, states that

Most of these artificial barriers have little or no relation to modern medical science which has concluded that most occupational diseases are multicausal in nature and have relatively long latency periods from the time of initial exposure to the actual manifestation of disease.

In most cases of traumatic injury or death, the cause and effect relation is clear: a worker loses a hand in a stamping machine, falls from a scaffold, or is killed in a grain elevator explosion.

For many of these diseases, such as work-related cancers, it is often difficult, if not impossible, to determine a specific cause and then link it specifically to a particular workplace exposure or set of exposures.

Moreover, risk-facing equality does not exist, and it is highly problematical to assess the degree and nature of occupational hazard solely on the basis of compensated cases. Past compensation experience in individual sectors of employment usually forms the basis on which insurers rate the risks associated with employment and calculate the premiums to be assessed on the employers. This provides little incentive for preventive programmes, even though industries such as mining or forestry are known to be dangerous.

More fruitful, however, is the notion discussed by Morabia (1984) of “homogeneous groups”. Grouping similar workers across sectors demonstrates quite clearly that risk is more related to skill level than to the type of industry, as such.

Inequalities among Workers Facing Job Hazards

Risk inequality is measured by several variables:

Effect of skill level

Differences in risk exposure between skilled and unskilled workers are independent of the company’s type of production and are not limited just to the type of workplace and exposure to toxic agents (Rey and Bousquet 1995). In Canada, for example, Laflamme and Arsenault (1984) found that the frequency of accidents among different categories of production workers is not randomly distributed. Less skilled, manual labourers—a minority of the workforce—suffered the highest proportion of accidents.

Moreover, injuries were not distributed by chance either; in unskilled piece-paid workers, the frequency of lumbar injuries is higher than in other groups, as well as other locations. Unskilled workers, in the type of work organization described by Laflamme and Arsenault (1984), concentrated risk factors. Differences in risk exposure with other groups of workers were exacerbated by what appeared to be an implicit “political” attitude in which preventive measures were more likely to be focused on the skilled workers, an organizational arrangement that was inherently discriminatory to the detriment of the unskilled workers, among whom the risks were concentrated.

Effect of work experience

The most vulnerable workers are those with the least experience on the job, be they newly hired or subject to frequent job changes. For example, data from INRS and CNAM (Conservatoire national des arts et métiers) in France show that temporary workers have 2.5 times the accident rate of permanent employees. This difference is attributed to their lack of basic training, less experience in the particular job, and inadequate preparation for it. In fact, the researchers note, the temporary workers represent predominantly a population of young, inexperienced workers who are exposed to high risks in workplaces without effective preventive programmes.

Moreover, accidents happen most frequently during the first month of employment (François and Liévin 1993). The US Navy found that the highest incidence of injury among shore-based personnel occurred during the first few weeks on the job. Approximately 35% of all hospitalizations occurred during the first month of a new job assignment; this frequency then decreased sharply and continued to decline as time on the assignment increased. A similar tendency was displayed by personnel on sea duty, but the rates were lower, presumably reflecting more time in the navy (Helmkamp and Bone 1987). The authors compared their data to that of a 1979 report from the US Bureau of Labor Statistics of the National Safety Council and found similar results. Moreover, they noted that the above-mentioned phenomenon varies only slightly with increasing age. While young workers are at highest risk for accidents for reasons noted above, the “new-to-the-job” factor remains important at all ages.

Effects of type of wage scheme

The way workers are paid may influence the frequency of accidents. In his critical review of publications on incentive wages, Berthelette (1982) notes that the piece-work method of pay is associated with a higher risk of accidents. In part, this can be explained by the incentive to “cut corners” and ignore job risks, by overwork, and the accumulation of fatigue. This negative effect of the piece-work incentive was also recognized by Laflamme and Arsenault (1984) in the furniture industry, as well as by Stonecipher and Hyner (1993) in other industrial activities.

The “healthy worker effect” (HWE)

There is ample evidence of the beneficial health effects of work and the negative health impact of unemployment. The HWE, however, does not connote that work is good for health. Rather it signifies that the working population is healthier than the population as a whole. This reflects the difficulty of those who are chronically ill, severely disabled or too old in obtaining and holding jobs, and the fact that those who are least able to cope with job risks are soon forced to abandon their jobs, leaving a workforce of the healthiest and most fit workers.

The HWE is defined by epidemiologists as a submortality (or, also, as a submorbidity) of workers compared to the mortality or morbidity of the whole population. For epidemiologists who use firms as a field for studying a disease, such an effect needs to be minimized. In his article on HWE, Choi (1992) considers not only the reasons, but also the methods, for decreeing this selection bias.

From the point of view of ergonomists, non-occupational factors, such as lower financial resources and family problems, may also enter into the picture, in addition to occupational factors such as lack of professional incentives and fear of not measuring up to one’s job requirements. If a worker voluntarily leaves a job very quickly—a few days or weeks after starting—the possibility that age has rendered the worker less capable of facing the demands of the job must be considered.

For example, the diminishing incidence of low-back pain (LBP) with age does not imply that older workers are necessarily more resistant to back pain. Instead, it suggests that those with a predisposition to backache (e.g., those with anatomical defects, poor musculature and/or poor physical condition) have discovered that bad backs are not compatible with heavy lifting and have migrated to other types of work (Abenhaim and Suissa 1987).

In the study by Abenhaim and Suissa, data were obtained from the Workmen’s Compensation Board of Quebec from a sampling of 2,532 workers who had lost at least one day of work due to back pain. The 74% of compensated workers who were absent from work less than one month accounted for 11.1% of lost workdays, while the 7.4% of workers who were absent more than six months accounted for 68.2% of the lost workdays. The latter group of workers (0.1% of the workforce) were responsible for 73.2% of the medical costs and 76% of compensation and indemnity payments (a total amount of 125 million dollars (1981). Each of these cost approximately 45,000 Canadian dollars. The high incidence rate found in men (85% of the cases) could be explained by the presence of a larger population of men in those tasks with a greater probability of back injury. Other explanations are less likely, such as a higher vulnerability of men or a greater proportion of men filing compensation claims. Abenhaim and Suissa state:

The increase-decrease pattern of back pain with age is most probably due to the healthy worker effect; workers would be more likely found in back-threatening tasks before age 45 years and would quit these jobs after they become older... The results of the study are at variance with the belief in industrialized countries that the major portion of this type of medical expense is due to ‘uncontrolled’ multiple periods of absence from work due to back pain with ‘no objective signs.’ The more socially significant cases are among those with long duration of absence and heavy medical assistance. Prevention and occupational health and safety policies should bear this finding in mind.

In brief, numerous factors not taken into account in tabulating the statistics of occupational injuries and diseases can modify the fundamental underpinnings of the data and completely transform the conclusions reached by workers’ compensation officials and others. This has particular relevance for those using these data as the basis for designing programmes to control particular hazards and ranking the urgency of their implementation.

Life and work events; stress

Stress is a major factor in the causation of work-related injuries and diseases. Stress in the workplace, whether arising out of the job or brought to the workplace from life at home and/or in the community, can affect behaviour, judgement, physical capabilities and coordination, leading to accidents and injuries, and there is growing evidence that it may affect the immune system, increasing the susceptibility to disease. In addition, stress has a significant influence on the response to rehabilitation therapy as well as on the extent and duration of any residual disability.

In attempting to account for the increased rate of accidents during the weeks immediately following a transfer from shore duty to sea and vice versa, Helmkamp and Bone (1987) suggested that the stress created by the transition and the changes in patterns of living may have been a contributing factor. Similarly, Von Allmen and Ramaciotti (1993) noted the influence of both job-related and off-the-job psychosocial factors in the development of chronic back problems.

In a 27-month prospective study among air traffic controllers, levels of social stress were dramatically related to the occurrence of accidents. The 25% of the study group of 100 workers who reported high levels of stress developed a total morbidity rate 69% greater than that of the workers reporting low stress levels, and an 80% greater chance of incurring an injury (Niemcryk et al. 1987).

It is not surprising, therefore, that at least in the United States there has been a proliferation of workers’ compensation claims attributing disability to alleged occupation stress. Even though such claims are still not allowed in many jurisdictions, their rate of increase has probably been exceeded only by the surge of recent claims for repetitive injuries such as carpal tunnel syndrome, and other ergonomic disorders.

Claims based on alleged stress offer another illustration of the “artificial barriers” to compensation noted above. For example, some of the jurisdictions in the United States (mainly the individual states) do not accept any claims based on stress: some will accept them only if the stressor is a sudden, discrete or frightening or shocking event, and some require the stress to be “unusual” (i.e., in excess of the stress of everyday life or employment). Some jurisdictions allow stress claims to be adjudicated on their merits, while there remain some where neither statutes or case-law have yet established sufficient consistency to constitute a guideline. Accordingly, it appears, the worker’s chance of success with a claim based on stress is as much a factor of where the claim is filed and adjudicated as the merits of the claim (Warshaw 1988).

Perception of risk

Before employers decide to improve working conditions, and before workers choose to work more safely, they must be convinced that there is a risk to be guarded against. This must be personally perceived; “textbook knowledge” is not very persuasive. For example, non-unionized workers are less likely to complain about potential work hazards because they tend to be less well informed about them (Walters and Haines 1988).

Risk-taking, the willingness of individuals to accept danger in the workplace, depends to a large extent on the culture of the organization. One can find a blasé attitude with risk-taking encouraged (Dejours 1993), or a more prudent approach (Helmkamp and Bone 1987).

Where there is a low accident rate and workers have never witnessed a serious accident, and especially where there is no union to sensitize workers to latent hazards, there may in effect be a denial of risk. On the other hand, where workers are aware of risks of serious injuries or even fatalities, they may demand supplemental hazard pay (Cousineau, Lacroix and Girard 1989). Deliberate risk-taking may, therefore, be stimulated by the desire or need for the extra pay.

Attitudes toward risk-taking on the job generally reflect the workers’ attitudes toward prevention in their personal lives. Stonecipher and Hyner (1993) noted that salaried employees had significantly higher levels of participation in health screening programmes and pursuing a healthy lifestyle compared to wage (paid on an hourly basis) workers, who tended to be less well educated and lower paid. Thus, low-skilled, low-wage workers who, as noted above, are prone to higher rates of accidents and injuries are also more likely to indulge in excessive use of tobacco and alcohol, have poor dietary habits and be less likely to take advantage of preventive health services. As a result, they appear to be in double jeopardy.

Organizational culture and risk levels in the enterprise

Characteristics of the organizational culture in the enterprise may influence the perception of risks in the workplace and, therefore, actions to control them. These include:

Size of the enterprise

Risks of occupational injuries and diseases are inversely related to the size of the enterprise. In Switzerland, for example, the smallest enterprises outside of the high-tech industries (up to ten employees) account for a very high percentage of the cases of occupational diseases recognized by the CNA (Caisse nationale suisse d’assurance en cas d’accidents—Swiss national accident insurer). In contrast to the larger enterprises, these small shops have less of a chance of recruiting the best trained, the most experienced and, from the standpoint of their health, the hardiest workers. Their owners and managers are less likely to be knowledgeable about workplace hazards and to have the time and financial resources to address them. They are inspected much more rarely and have greater difficulty than their larger counterparts in obtaining access to the technical assistance and specialist services they may need (Gressot and Rey 1982).

Rejection of responsibility

In Switzerland the employer is responsible for the safety of the worker and the worker is required to abide by the safety systems established at work. Unfortunately, the law and reality are not the same. A study of Swiss workplaces with 100 or more employees disclosed a tendency for each of the involved parties to deny responsibility for the accident and blame the other. Thus, employers pointed to the employee’s alcoholism or disregard of safety rules as the culprit, while the employees blamed workplace deficiencies and ineffective management. In addition, the industries rated most dangerous by the insurance companies tend to understate the risks (Rey et al. 1984).

Prevention of compensation cases reduces employers’ costs

In theory, the WCS is designed to reward employers who successfully mount effective prevention programmes and lower the frequency and severity of injuries and illnesses by reducing the workers’ compensation taxes or premiums levied on them. But this hypothesis is often not validated in practice. The costs of the prevention programmes may exceed the premium reduction, particularly when the premiums are based on a percentage of total payroll during a period when there have been significant wage increases. Further, the reduction may be meaningful only in very large organizations where premiums rates may be based on the experience of the individual company, in contrast to smaller organizations who pay “manual” rates that reflect the experience of a group of companies in a particular industry or geographic area. In the latter case, a single company’s improvement may be more than offset by the unfavourable experience of other companies in the group.

There is also the reality that although the number and severity of accidents and injuries may be reduced, the premiums are driven up by the escalating costs of medical care and by more generous payments for disability, particularly in the industrialized countries.

Theoretically—and this often happens—the costs of the prevention programme are more than recouped by continuation of the premium “rebates” as the improved compensation experience persists, and by avoidance of the indirect costs of work-related injuries and illnesses. The latter may be expressed in terms of workplace disruptions, absenteeism and lost production; these may be greater than the costs of workers’ compensation.

Attitudes of employers and managers

Most employers are genuinely concerned about the health and welfare of their employees and, in many larger organizations, this concern is often explicitly stated in formal policy statements. Too many managers, however, are much more concerned about their own status with respect to pay increases or bonuses and advancement within the organization. Competition among segments of the organization for awards and other recognition for holding down the number of injuries and illness often leads to concealment of accidents and denial of workers’ claims for compensation.

An important factor is that while preventive programmes require an upfront expenditure of money and other resources, notably staff time and effort and consultants’ fees, their payoff is often delayed or masked by unrelated rare events. This becomes a significant barrier when the enterprise is financially stretched and forced to restrain expenditures or even reduce them. The delayed payoff may also be critical for plant managers and other executives whose performance is judged by the “bottom line” at the end of the fiscal year or other accounting period. Such an executive may readily be tempted to defer investing in a safety programme until he or she has been promoted to a higher position in the organization, leaving this problem for a successor.

Labour-management collaboration

Labour-management collaboration is critical to the success of programmes to prevent work-related injuries and illnesses. Ideally, a joint labour-management committee will be created to identify problems, design programmes to address them and monitor their implementation.

Too often, however, such collaboration is prohibited or at least made difficult when relations between the employer and the union become inordinately adversarial. For example, employers sometimes resist union “intrusions” into workplace operations and activities and resent the union’s militancy in sensitizing their members to potential workplace hazards and encouraging them to pursue workers’ compensation claims on what the employer may regard as insufficient or inappropriate grounds. Unions, on the other hand, often feel compelled to be aggressive in advancing the interests of their members against what they regard as the lack of interest of the employers.

Suggested Reforms

Reform of the WCSs is not a simple matter. It necessarily involves a number of parties (e.g., workers and their representatives, owners of enterprises and employers, government agencies, compensation insurance carriers, legislators) each of whom has vested interests to protect. However, the high stakes involved—the health, well-being and productivity of workers and their dependants—make WCS reform a matter of more than a little urgency. Included among some of the reforms that have been suggested are the following:

Making statistics and their analysis reliable and compatible

There is currently an effort underway to make statistics internationally comparable. A single formula for European countries is one laudable example. There are directives that correspond to current practices, looking at the frequency or severity of cases by industrial sector, by physical or chemical agent, or by the conditions surrounding the accident.

The formula is not a radical departure from current practices such as those of the Swiss CNA, and thus one can hardly expect that the biases discussed above will be avoided. In Switzerland, however, the authorities have reacted favourably to the new requirements for the involvement of safety and health specialists at the enterprise level, particularly to the idea that information on risk should not rest solely on insurance company statistics, but rather should also have access to precise epidemiological studies.

It appears that in Europe, the member countries of the community have decided to adhere to the principle of a uniform formula for data collection. In the United States, however, a recent study showed that the creation of a data bank on insured cases does not have the same chance of success, according to Johnson and Schmieden (1992), despite the size of the insured pool and the expenses incurred by the insurance companies.

In the United States, workers’ compensation is big business, with almost 91.3 million workers covered in 1988, and nearly $34 billion paid out in benefits to workers at a cost to employers of over $43 billion for that year. Currently, workers’ compensation costs are increasing more rapidly than other health-care costs, a fact that seems to have escaped the notice of many employers who have been focusing on the escalation of employee health insurance costs, which many assume is partially or totally responsible. A unified database seems much less likely to be developed in the United States, in contrast to the European countries. Nevertheless, it has been suggested that, as a starting point, making the currently available workers’ compensation data more accessible to those who should be interested in it by having health science resource centres and libraries collect and disseminate it would be useful (Johnson and Schmieden 1992). Their survey on 340 relevant libraries in the United States and in Canada indicates that only about half of them do provide information services on this topic; only 10% foresaw a future need for a collection in this field, while most respondents indicated no need or did not answer. With increasing concern about the rapid rise in workers’ compensation costs, it seems reasonable to expect that employers, insurers and their consultants would press for the development of such data resources.

It should be noted that this is not the first time that such an initiative has been undertaken in North America. Following the 1981 report of the Joint Federation-Provincial Inquiry Commission into Safety in Mines and Mining Plants in Ontario, it was recommended that a database be developed that would:

  • formulate clear and unambiguous definitions of which accidents are to be included
  • profile each reportable accident (how, when, where, why, severity of injury and so on) and each worker (age, sex, type of job, length of service and so on)
  • provide background data on the characteristics of the work force as a whole (e.g., skill levels, training and experience) along with data on production levels, hours of work and so on.

 

In interpreting the available statistics, indices defined in thresholds of time off from work should be emphasized and greater weight given to indices that are less amenable to social and economic influences (Léger and Macun 1990).

Separating compensation from prevention

It has been contended that the purpose of the WCSs should be limited to the collection and distribution of funds for the workers’ compensation benefits prescribed in the relevant legislation, while prevention of workers’ injuries and diseases is an extraneous matter that should be relegated elsewhere.

Mikaelsson and Lister (1991), for example, suggest that abuse of the WCS in Sweden makes the validity of the Swedish accident and illness data very questionable and not at all useful as a basis for designing preventive programmes. The Swedish WCS, they contend, invites multiple appeals and permits arbitrariness. Its costs have been rising rapidly largely because compensation is often granted without substantial evidence of a relationship of the injury or disease to the job, while the rules of evidence discourage a meaningful search for the actual cause.

Because the issue of causation is obscured or bypassed entirely, the Swedish data present a misleading picture of occupational injuries and diseases. The reported incidence of some diseases may be inflated (e.g., low-back pain) while causes of other disease may be entirely overlooked.

Let us stress here that the new Swedish law on compensation, under the influence of the multiplication of claims, particularly for low-back pain (LBP), is going backward. As it now operates, the Swedish WCS offers no incentives for employers to identify and eliminate the actual causes of occupational diseases and injuries. The meaningful investigation of the nature, extent and control of occupational hazards could be assigned to other agencies designated under other provisions of Swedish law (see “Country Case Study: Sweden” on page 26.26).

Burger (1989) goes one step further, suggesting that all occupational injuries and illness should be compensated without any preconditions and that the WCSs be subsumed in the general social insurance programme. On the other hand, he states, if the test of causal relationship is to be retained for coverage by the WCSs, that test should be performed, rigorously observing all the traditional criteria for the validity and quality of medical-scientific information.

Merge compensation medicine with general health care

In some jurisdictions, treatment of individuals with compensable injuries and illness is restricted to physicians and other health professionals who have been credentialed as having the knowledge and skill to deal with such problems. This, it is hoped, will ensure the quality of their care.

In some instances, this has had just the reverse effect. The great majority of workers’ compensation injuries are relatively minor and require little care beyond first aid, presenting little in the way of interesting challenges to the physician. In jurisdictions where statutory fees established for the care of such cases are lower than those that are customary in the area, there is an economic incentive to increase the number and extent of treatments. For example, when caring for a cut or laceration in New York State in the United States, the Workers’ Compensation Fee Schedule allows a supplementary fee of $1 for each suture up to a maximum of ten; thus, one sees wounds closed with ten sutures regardless of their length and even when adhesive “butterflies” might suffice. Also, to be convenient to workplaces, physicians’ offices and polyclinics treating workers’ compensation cases are often located in industrial districts that are generally not among the most prepossessing parts of town. As a result of such factors, compensation medicine often does not rank very high among the fields of medical practice.

Further, from another perspective, in areas where there are shortages of medical facilities and personnel, occupational injuries and diseases must perforce be treated in the nearest available physician’s office or polyclinic, where sophistication in the care of work-related health problems may be minimal. This is a particular problem in non-urban, non-industrialized areas and for enterprises too small to have their own employee health service.

At the opposite pole from those who would separate prevention from compensation are those who would give it greater emphasis as part of workers’ compensation. This is particularly true for Germany. This is also seen in Switzerland since the new law on accidents and occupational diseases (LAA) went into effect in 1984 covering the entire field of work safety. The federal commission of coordination (CFST) was then created with representatives of the confederation and cantons and representatives of the CNA and of other insurance carriers, public and private.

The CFST is responsible, among other things, for formulating technical regulations in the form of directives for the prevention of accidents and occupational diseases. It is also responsible for financing the workplace safety enforcement authorities (e.g., by reimbursements to the cantons) for the costs of workplace inspection.

The CNA is the major insurance carrier for occupational injuries and diseases and, in the field of workplace safety, monitors the application of rules of prevention for occupational accidents in approximately 60,000 enterprises—those that, in principle, expose the workers to the most serious dangers (e.g., those that produce or use explosives, use the greatest quantities of solvents, chemical companies). The CNA also issues directives on concentration limits for toxic substances on the job, limits that are supposed to be respected by the employers.

As the agency that applies the LAA and its regulations, the CNA must inform the employers and the workers of their respective responsibilities. The employer is required to take all steps and measures required by the regulation on accident and occupational disease prevention (OPA). The worker is required to follow the instructions of the employer on the question of workplace safety.

During factory visits to verify compliance with regulations carried out by the CNA (or by other, especially cantonal, monitoring bodies) the employer is required to permit inspectors access to all premises and job sites. If a violation is found, the CNA draws the employer’s attention to it and sets a deadline by which the situation must be corrected. If a warning is not heeded, the CNA orders the necessary measures by way of executory decision. In case of non-compliance, the company can be placed in a higher risk category, warranting an increased premium. The insurer (CNA or other insurer) must make the decision to increase the premium immediately. Furthermore, the executory body (in particular, the CNA) takes coercive measures, with the assistance of the cantonal authorities, if needed.

The CNA’s technical services participate in the factory visits, but are also available to the employers to offer advice on safety matters.

In the field of occupational diseases, the employer has to see that the workers to whom the regulations apply undergo preventative medical examinations, performed by the nearest doctor, or by the CNA’s own medical service. The CNA determines the content of the preventative medical examination and ultimately decides on a worker’s aptitude to fill the job.

All the technical and medical measures that the employer must take to fulfil his legal obligations are at his expense. Financing the inspection and administrative activity of the CFST and its executory bodies is ensured by the supplementary premium.

The CNA and the other insurers are required to furnish to the CFST the information that allows it to form the basis necessary for its action, especially establishing the accident and occupational disease statistics. When a new regulation was promulgated on company doctors and other safety specialists, the federal social insurance office (OFAS) issued report number 92.023, 1992. This report says that risk analysis cannot rest solely on accident and occupational disease statistics available to authorities (known case), but equally on epidemiological research, carried out in Switzerland or abroad.

Finally, the CFST is responsible for promoting information and instruction on job safety at every level. In Geneva, workplace inspection is organized with the CFST and the CNA, and with the support of the university scientists, conferences, practical safety courses for businesses in Geneva or other groups of interested persons. A tripartite commission with representatives from government, the employers and the workers is behind this initiative, which is largely subsidized by the canton.

Abandoning the one-dimensional causal relationship in favour of a multifactorial view of the links connecting workplace risk and disease

In most cases of occupational accidents causing injury or death, there is a clear-cut and direct causal relationship between the incident and the trauma. Such an “iron rule” is hard to impose when confronted by occupational diseases, which are generally multicausal in origin. Causality is further complicated by the long latency period from the initial exposure to the first recognizable manifestations of the disease. For many occupational diseases, such as work-related cancer, it is difficult if not impossible to identify a specific cause and then link it to a particular workplace exposure or set of exposures. Accordingly, rather than pursuing the workers’ compensation route, many workers with these diseases turn to the general health-care system (in the United States, for example, private health insurance—or Medicare if they are old enough, Medicaid if they are poor enough) and to the public welfare system when financial support is needed.

As a result, “employers for all practical purposes are paying little or nothing for occupational disease and, in fact, are being subsidized by the public welfare system and workers themselves” (Mallino 1989).

The results of a study conducted in francophone Switzerland (Rey and Bousquet 1995; Von Allmen and Ramaciotti 1993) came to the same conclusion. The medical insurance carriers are thus required to assume the costs, at the expense of the insured and of the taxpayer, for health hazards clearly linked to workplace activity, such as certain back pains among workers who carry heavy loads.

As the employers do not feel constrained to correct the problems of jobs that are nevertheless responsible for these health hazards, this anomaly is also unhealthy from the perspective of prevention, which should be based on the existence of cases registered by the workers’ compensation system.

To resolve this type of problem, Mallino proposes an approach that requires only a demonstration that the occupational exposure was a contributing factor to the disease rather than the immediate, direct and only cause. Such an approach is much more consistent with modern medical science, which has established the multicausality of many diseases.

Using a set of presumptions based on the entire worker population, Mallino evokes what has been labelled the “30% rule”. If the incidence of a particular disease in an exposed population of workers is 30% higher than in a comparable non-exposed population, that disease would be deemed to be work-related. To be eligible for workers’ compensation, a worker with that disease would simply have to prove that he or she was a member of an exposed group and that his or her level of exposure was sufficient to have been a factor in causing the disease (Mallino 1989).

We should note that this notion of probability has found its way into some legislation, such as, for example, Swiss legislation, which identifies two categories of disease. The second allows for recognizing cases that are not on the lists of occupational diseases or of chemical or physical agents recognized as noxious at the workplace. In the CNA’s actual practice, admissibility on the individual level also rests on the notion of probability, particularly for traumas to the musculoskeletal system.

Promoting rehabilitation and return to work—proposals by therapists

A major approach to minimizing the human and economic costs of workers’ compensation injuries and diseases involves promoting rehabilitation and early return to work. This is particularly applicable in cases of back injuries and other musculoskeletal disorders, which place a very heavy burden on WCS budgets in the United States and the countries of Northern Europe (Mikaelsson and Lister 1991; Aronoff et al. 1987).

According to Walsh and Dumitru (1988), the workers who have the most trouble returning to work after a lost-time illness are those with the best insurance. This fact should lead to a reform in the relations between the different actors. “Although progress in treatment is being made, modification of our present scheme of benefit disbursement seems necessary to optimize recovery after injury. Systems that reduce adversarial interactions between claimant, employer and insurer should be investigated.”

Aronoff et al. (1987) after evoking the costs of back pain in the United States, boosts methods of re-education that should permit insured persons to return to their jobs and to avoid falling into the trap of “chronic disability”.

“Impairment is a medical term, referring to reduction of body or organ function. Disability, a legal determination, refers to a task-specific limitation of performance. The chronic disability syndrome refers to a state in which individuals who are capable of working choose to remain disabled. The disability is often the result of a minor injury but actually represents an inability to cope with other life problems. The features of the syndrome are: out of work at least six months; disability claim and claim for financial compensation; subjective complaints disproportionate to objective findings; lack of motivation to recover and negative attitude toward return to work” (Aronoff et al. 1987).

Von Allmen and Ramaciotti (1993) analysed the process leading to chronic LBP among affected workers in different jobs. The complexity of the problem is even more manifest during a recession, when assignment changes and the possibility of returning to a less strenuous workplace are being more and more restricted.

The chronic disability syndrome is often associated with chronic pain. According to 1983 data from the United States, it is estimated that 75 to 80 million Americans suffer from chronic pain, generating annual costs between $65 and $60 billion. As many as 31 million of these individuals have lower back pain—almost two-thirds of whom report limitation of social and work functions. With chronic pain, the pain no longer serves an adaptive purpose but often becomes the disease itself (Aronoff et al. 1987).

Not all individuals with chronic pain are disabled, and many can be restored to productivity by referral to a chronic pain centre where the approach to such patients is multidisciplinary and features attention to the psychosocial aspects of the case. Success in such treatment is related to level of education, age (the older workers naturally having more trouble than younger ones in overcoming their mechanical problem) and duration of absence from the job prior to the referral (Aronoff et al. 1987).

Workers most likely to forego workers’ compensation benefits and return to work include those who have benefited from early intervention and referral for rehabilitation services as promptly as possible; those who effectively master the pain and are successful with stress reduction strategies; those with a positive work history; and those whose work offers a sense of purpose and job satisfaction. (Aronoff et al. 1987).

In some WCSs, benefits are cut off abruptly and the case closed as soon as a disabled worker returns to work. Then, if his or her disability recurs or new problems arise, the worker must face bureaucratic procedures and a more or less long wait for resumption of benefit payments. This is often a formidable obstacle to persuading workers that they are well enough to try returning to work. To overcome this, some WCSs allow a trial period when benefits are continued for a time during which the worker attempts to return to his or her old job or see if retraining has made him or her capable of performing a new job. Under these circumstances, the worker loses nothing if the trial turns out to be unsuccessful.

Ergonomic approaches: From the perspective of risk prevention

French-speaking ergonomists (members of SELF: an international society of French-speaking ergonomists) have shown the complex web of relations that link the job and accidents. Faverge (1977), based on studies conducted in coal mines by his collaborators, created a system of analysing accidents that today is applied in practice by the INRS in France.

It is not necessary for the effects on health to be serious and lead to grave injuries for the method to be useful. This is how very complicated links have been made between work with VDUs and visual fatigue (Rey, Meyer and Bousquet 1991).

In establishing these connections, the ergonomist has in his or her possession a precious tool for proposing preventive actions at different levels of the workflow.

Ergonomic analysis of the job has become a common technique that today goes beyond SELF, and the authors who are cited below include Americans and Canadians, as well as Europeans.

Ergonomic analysis of the job is original in that it cannot forego the worker’s participation. This is because, in addition to the knowledge that the worker has of the level of constraint that his or her job imposes, his or her perception of risk, as we explained above, depends on many factors that are foreign to the technical analysis of the situation conducted by the engineers and safety specialists.

In performing work tasks, the worker does not always follow exactly the advice of the safety specialist but relies also on his or her attitudes toward the job and perceptions of risks. As noted by Walters and Haines (1988):

Workers’ perceptions of hazards are formed and expressed in ways different from the dominant medical-technical paradigm in occupational health and safety. The main sources of information about chemicals, for example, are not supervisors, health representatives, or training courses, but their own experience, the observations of co-workers, or just their feelings. Workers employ a different complex of experience-based knowledge than is embodied in technical expertise.

In Quebec, Mergler (cited by Walters and Haines) has suggested (1987), that workers’ experience should be more fully recognised, since it does represent expressions of impairment. Having conducted numerous field studies, Mergler also knows that the workers’ testimony is difficult to obtain if they fear that by explaining their working conditions, they might lose their jobs.

With Durrafourg and Pélegrin (1993), we take even more distance from the cause-effect schemas of the insurers and safety officials. In order for prevention to be effective, according to these writers, the workers’ health and the work situation must be considered as a global system.

Although the major risks may have a preponderant cause (e.g., the level of noise to be heard or the presence of a noxious chemical substance for a poisoning), this is not the case for the majority of problems affecting working conditions, hygiene and safety. According to Durrafourg and Pélegrin, the risk in this case “is made up of the intersection of work demands, the condition of the workers, and the constraints of the situation on the job”.

If, for example, older workers have fewer accidents than workers with less seniority, this is because they have “acquired a knowledge of carefulness and of effective guidelines for avoiding danger”.

Ergonomic analysis should allow for identifying “the factors upon which it is possible to act to give a value to the knowledge of carefulness of men at work and to give them all the means they need to direct their health and safety”.

In brief, according to the ergonomists and labour doctors with modern training, risk is not expressed solely by a knowledge of the physical, chemical and bacteriological milieu, but also by a knowledge of the social milieu and the characteristics of workplace populations. A deeper study of the job, in the ergonomic sense of the word, should necessarily be conducted for every registered case. This effort at analysis is only very partially made by the existing authorities (workplace inspections, company health and safety services, medical services), but moving in this direction is necessary for effective prevention.

Equalization of social protection

Faced with rising costs due only in part to the costs of workers’ compensation and preventive programmes, employers are moving jobs from industrialized countries to less developed areas where wages and benefits are generally lower and health and safety regulations and administration are less burdensome. Faced with the need to install often costly preventive measures, some employers are simply closing down their enterprises and moving them to areas with lower wage costs. With this increase in unemployment, workers may have no jobs to return to when they are rehabilitated and, therefore, elect to continue to collect disability benefits for as long as possible (Euzéby 1993).

To meet the competition from low-wage areas, employers are reducing their workforce and demanding greater productivity from the workers they retain. With a simultaneous tendency to overlook or defer considerations of workplace safety, there may be more accidents and injuries putting additional pressure on the WCSs.

At the same time as workers’ compensation payments/premiums by employers—which are usually based on numbers of employees and a percentage of payroll—decline with workforce reductions, the resources of the WCSs may also be reduced. This has occurred in Switzerland, for example, where the CNA has had to reduce its own staff.

In the United States, a congressional movement to reduce the federal role in regulating and enforcing occupational and environmental health and safety laws and shifting it to the states and localities has not been accompanied by budgetary allocations and grants large enough to do this job properly.

Tchopp (1995) has called for an international equalization of social protection that will maintain the WCSs along with preventive programmes in developed countries and improve the working conditions and well-being in developing countries. The aim in these countries, he emphasizes, should be to improve the lives of their workers.

Conclusion

Although improvements are still possible, WCSs in general are doing a fair job of providing health care and rehabilitation services and disability benefits to workers with job-related injuries, but there are significant deficiencies in their handling of occupational diseases. The latter would be improved considerably by broadening the relevant legislation to include more bona fide occupational illnesses, improvements in the statistical systems and epidemiological studies that track their impact on the workforce, and appropriate recognition of medical and scientific developments demonstrating the multicausality of many of these diseases.

The role of WCSs in preventing occupational injuries and diseases, beyond providing data about their epidemiology, is problematic. The theory that effective approaches to prevention will lower employers’ costs for mandatory workers’ compensation taxes or insurance premiums does not always prove to be true in practice. In fact, some have argued for the separation of the prevention imperative from workers’ compensation administration and assigning it elsewhere, where occupational health and safety specialists may play a greater role. At the least, it requires appropriate governmental regulation and stronger enforcement, ideally internationalized to equalize conditions in developing countries with those in industrialized areas.

The ILO should encourage member countries to develop solid policies in the area of accident prevention and occupational diseases in the broadest sense.

 

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Contents

Preface
Part I. The Body
Part II. Health Care
Part III. Management & Policy
Disability and Work
Ethical Issues
Education and Training
Development, Technology, and Trade
Labour Relations and Human Resource Management
Resources: Information and OSH
Resources, Institutional, Structural and Legal
Topics In Workers Compensation Systems
Work and Workers
Worker's Compensation Systems
Part IV. Tools and Approaches
Part V. Psychosocial and Organizational Factors
Part VI. General Hazards
Part VII. The Environment
Part VIII. Accidents and Safety Management
Part IX. Chemicals
Part X. Industries Based on Biological Resources
Part XI. Industries Based on Natural Resources
Part XII. Chemical Industries
Part XIII. Manufacturing Industries
Part XIV. Textile and Apparel Industries
Part XV. Transport Industries
Part XVI. Construction
Part XVII. Services and Trade
Part XVIII. Guides

Workers' Compensation, Topics in References

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