Thursday, May 31, 2018

"A Rough System That Should Obtain Just Results": Professor Burton on Work Comp in Israel, Compensation for Diseases, and Restrictive Standards

            In a 2017 article, Professor Burton suggests, perhaps rhetorically, that diseases (defined broadly to include non-acutely-traumatic injuries, like carpal tunnel syndrome, degenerative back problems, and gradual mental stress maladies), be widely compensated and not tied to the demand that work causation always be shown. Instead, a different program altogether would be established to fund, process, and compensate such claims.  See John F. Burton, Jr., Is the Work-Related Test Desirable for all Diseases that Disable Workers?, 39 Comparative Labor Law and Policy Journal 247 (Fall 2017), (subscription required; also on WestLaw). 

            The article, originally part of a collection of essays, reflects the author responding to an assertion of an Israeli colleague that firm rules on disease recovery be established under the workers’ compensation laws of that country. There, confusion apparently exists in this realm, leading to criticism over the integrity of the law. His colleague has called for reform in his country.

             Professor Burton’s plan is largely rhetorical (as I have already suggested), and proposed as a mock solution – here, at least – to the longstanding challenge presented of trying to compensate non-obvious injuries which are nevertheless caused in whole or in material contributing part by work exposures. Removing them from the system altogether is a sort of nuclear option that simply eliminates the issue with one fell blow. An advantage, Burton points out, would be the elimination of the litigation (there is lots of it) that surrounds these non-obvious claims. A disadvantage would be that contests would endure over whether a disease in a particular case exists and the level, if any, of disability which it has produced.  

            Along the way to the conclusion of this largely academic venture, Professor Burton succinctly identifies the other solutions which have, in fact, been attempted in the United States. Here, he provides the reader with a welcome refresher on the trends seen in our country. He identifies, in this regard, four categories of “changes in compensability rules” that are evident among states since 1990. 

  • The first is the legislature limiting pathologic conditions altogether, such as the West Virginia law’s exclusion of mental stress causing mental disability cases. 
  • The second is the legislature restricting compensability when the injury involves aggravation of a pre-existing condition, such as the Florida law’s mandate that, before an injury is compensable, the work causation be the “major contributing factor” (to wit, over 50%), in the malady.
  • The third is legislative change that demands that “objective medical evidence” be submitted to document the authenticity of allegedly disabling conditions, such as (I believe) the Ohio law that “subjective complaints, without objective diagnostic findings, objective clinical findings, or objective test results, are insufficient to substantiate a substantial aggravation.”
  • Fourth, and perhaps most jarring to the Pennsylvania reader, are legislative acts, as in California and Colorado, that allow apportionment in permanent disability awards; under apportionment laws, the employer will be liable only for the degree of disability ascribable to the work injury.

            Burton is dispirited by these restrictive rules (freedom from which we in Pennsylvania have, to date, enjoyed): “I am discouraged by the U.S. experience in recent decades because compensability rules for workers’ compensation benefits have been tightened not on the basis of scientific evidence but instead on the basis of cost-minimization.”

            The reader also learns from Professor Burton of the basic structure of the workers’ compensation laws of Israel. The program there is a national enterprise that began in the 1950s. All employees and self-employed workers are covered by the law. Workers’ compensation is not, however, the exclusive remedy. Instead, the employer may also be sued in tort, with the employer receiving a credit against damages for any workers’ compensation benefits previously received. As for underwriting of the program, risks are insured by the “National Insurance Institute” (Nil), and are financed by payments from the employer that do not vary among employers. Nil also administers the program. All of this shows that Israel has followed the European model (like that of Germany) in establishing its system. It is also notable that in Israel, like most of the industrialized world, all residents are entitled (since 1995 in that country) to medical care through a general health program. The workers’ compensation laws also provide for vocational rehabilitation benefits, another typical feature of European systems.    

             As with any article by Professor Burton, one comes away with a lot of new knowledge. It is perhaps his Israeli colleague, to whom the author is responding, who has the most memorable line. In seeking to reform the system to provide a clear disease compensability standard, “Our foremost concern [is] to fashion a workable model to function well within the existing system. Much like the WC system overall, it is a rough system that should obtain just results….”


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