1. Workers’ Compensation: are we getting benefits to the workers who need them? Emily A. Spieler Northeastern University School of Law June 7, 2013

2. Four Questions: Question #1: What has happened to reported injury rates and workers’ compensation claims since 1990? Question 2: Do workers’ compensation claims accurately reflect injury and illness rates – and if not, why not? Question 3: Is the decline in WC claims and costs the result of the reduction in injuries and illnesses? Question 4: What role do legal protections against retaliation play in protecting injured workers?

3. Reported injury rates per 100 FTE workers [private sector only] Since 1990, total reported injury rates have declined by 60% and DART cases by 47%. Source: BLS Industry Injury and Illness Data

4. Workers' Compensation Claims per 100,000 Insured Workers 1992-2006, 41 jurisdictions Source: Workers’ Compensation: Benefits, Coverage, Costs 2009 (2011), Table 16, derived from Exhibit XII, Annual Statistical Bulletin, NCCI 1996-2010 Percent decline 1992-2006: TTD 52% (1358 to 653); PPD 45% (694 to 384); ALL 47% (8504 to 4542)

5. Questions, cont’d: Question #2: Do workers’ compensation claims accurately reflect injury and illness rates – and if not, why not? Question 3: What role do legal protections against retaliation play in protecting injured workers? Question 4: Is the decline in WC claims and costs the result of the reduction in injuries and illnesses? Question #1: What has happened since 1990 to reported injury rates and workers’ compensation claims?

6. Many work-related injuries & illnesses have never been compensated: Beginning in the 1980s, studies show that many diagnosed work-related conditions do not result in compensation: “[I]rrespective of the methodology or data source, studies consistently demonstrate that workers’ compensation claims actually filed are substantially lower than the number of legitimate claims that would have been expected based on other data sources. They also indicate that other reporting systems, including OSHA logs, significantly underreport the incidence of workplace injuries as well.” Spieler & Burton, The Lack of Correspondence Between Work-Related Disability and Receipt of Workers’ Compensation Benefits, AJIM 2011

7. Claims are not filed for work-related injuries and illnesses because: Not all workers and employers are covered Ignorance of the system Complexity of the system Ignorance that a condition is work-related Fear and stigma Pressure from co-workers - “what will they think of me?” Pressure from employers – meeting goals for safety Failure of health care providers to document work- relatedness

8. Starting in the 1990s & continuing: Growing barriers to compensability Changes in burdens or nature of proof required (“preponderance of evidence standards” “clear and convincing” “strict construction” or elimination of “true doubt rule” in federal WC matters) Rising barriers to proof of causation : e.g. exclusions (or apportionment) for preexisting conditions, aging, or conditions with multiple causation, restrictive definitions of “arising out of and in the course of” Safety rule defenses akin to assumption of risk defense Elimination of compensation for specific conditions (e.g. stress-related claims) Changes in standards for medical and expert proof (Daubert rules; exclusions of treating physicians; requirements for “objective” medical evidence; AMA Guides)

9. Questions, cont’d: Question 3: What role do legal protections against retaliation play in protecting injured workers? Question 4: Is the decline in WC claims and costs the result of the reduction in injuries and illnesses? Question 1: What has happened since 1990 to reported injury rates and workers’ compensation claims? Question #2: Do workers’ compensation claims accurately reflect injury and illness rates?

10. Retaliatory discharge Most states recognize a right against retaliation for workers who file workers’ compensation claims Many many retaliation cases are filed and reported: a search yielded more than 10,000 reported cases in states around the country Railroad workers frequently report retaliation for reporting an injury Thus: Retaliation is clearly prevalent Laws against retaliation are protective, BUT: We cannot prove the corollary: that many workers do not file workers’ compensation claims for fear of retaliation OSHA rule now discourages retaliation when workers report injuries

11. Questions, cont’d: Question 4: So… Is the decline in WC claims and costs the result of the reduction in injuries and illnesses? Question 1: What has happened since 1990 to reported injury rates and workers’ compensation claims? Question #2: Do workers’ compensation claims accurately reflect injury and illness rates? Question 3: What role do legal protections against retaliation play in protecting injured workers?

12. For example: Changes in the Oregon statute reduced the number of claims by 12-28% and benefits by 20-25% between 1987 and 1996 (Thomason and Burton 2001) Compensability restrictions accounted for 7-9% of the decline in DART injuries reported to BLS in 1991-97 (Boden & Ruser 2003) Changes in eligibility rules explain more of the decline in cash benefits during the 1990s than the decline in the BLS injury rate (Guo & Burton 2010) California claims rates dropped 36% after 2004 legislation (10% might have been predicted based on prior history) Research suggests that WC changes are significant contributors to the decline in claims and costs:

13. Effects of changes on compensability: Workers’ Compensation Compensability Index, 1985-1999 (Burton-Guo 2010)

14. Questions? Thoughts?