ANALYSIS OF WORKERS’ COMPENSATION LAWS

ANALYSIS OF WORKERS' COMPENSATION LAWS

2019

2019 Analysis of Workers' Compensation Laws

Copyright ? 2019 by the U.S. Chamber of Commerce ISBN 13: 978-0-89834-186-7

This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a professional person should be sought. (From a declaration of principles jointly adopted by a committee of the American Bar Association and a committee of publishers and associations.) All rights reserved. This publication, or parts thereof, may not be reproduced in any form without the written permission of the U.S. Chamber of Commerce. Forward requests for permission to reprint to: Reprint Permission, Communications Department, U.S. Chamber of Commerce, 1615 H Street N.W., Washington, DC 20062-2000. Requests must specify the exact material to be reprinted, where, and how the reprinted material will appear. Rights are granted for one edition only. Please allow a minimum of two weeks for consideration of requests. Reselling of this book is not permitted.

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CONTENTS

Foreword ............................................................................................................ 4

Introduction ....................................................................................................... 5

Part 1--Coverage of Laws

Discussion ................................................................................................................................ 7 Chart I--Type of Law and Insurance Requirements .............................................................. 10 Chart II--Coverage of Laws .................................................................................................. 15 Chart III--Coverage of Minors ............................................................................................. 27 Chart IV--Coverage of Occupational Diseases ...................................................................... 30 Chart V--Occupational Hearing Loss ................................................................................... 42

Part 2--Benefits Provided

Discussion .............................................................................................................................. 49 Chart VI--Income Benefits for Total Disability ..................................................................... 51 Chart VII--Income Benefits ($) for Scheduled Injuries ......................................................... 63 Chart VIII--Fatalities: Income Benefits for Spouses and Children ......................................... 68 Chart IX--Waiting Period for Income/Medical Benefits ....................................................... 79 Chart X--Rehabilitation of Disabled Workers ........................................................................ 88

Part 3--Administration of Laws

Discussion .............................................................................................................................. 93 Chart XI--Administration: Notice to Employer and Claims .................................................. 95 Chart XII--Employer's Report of Accidents ........................................................................ 114 Chart XIII--Second Injury Funds ....................................................................................... 119 Chart XIV--Administration Expenses: Workers' Compensation Departments ..................... 128 Chart XV--Appeal Provisions .............................................................................................. 133 Chart XVI--Directory of Administrators ............................................................................. 139

Abbreviations and Computations ..................................................................... 144

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FOREWORD

The 2019 Analysis of Workers' Compensation Laws offers an overview of workers' compensation statutes and is intended to provide both a comparison and an improved understanding of the various laws. Sixteen detailed charts are presented to aid employers, employees, insurance firms, agents, brokers, attorneys, physicians, and others in locating specific provisions of workers' compensation laws. The Analysis tracks the laws of the 50 U.S. states, the District of Columbia, American Samoa, the U.S. Virgin Islands, and the 10 provinces and three territories of Canada. The Federal Employees' Compensation Act (FECA) and the Longshore and Harbor Workers' Compensation Act are also covered. Although the Analysis provides essential information needed daily throughout the business community, it should not be considered as an extraction of exact provisions found in statutory texts. The information required to bring together this publication was supplied by government officials in the states and jurisdictions represented, legislative reporting services, insurance companies, and the U.S. Department of Labor. For further information about the 2019 Analysis of Workers' Compensation Laws, please contact the U.S. Chamber of Commerce, 1615 H Street N.W., Washington, DC 20062-2000 or call (800) 638-6582.

Updates to the Analysis

A complete revision of the Analysis is printed annually. The 2020 edition will be available in July 2020. It will reflect changes made in workers' compensation laws effective Jan. 1, 2020. Mid-year revisions to the 2019 edition of the Analysis, including updates for those jurisdictions with benefit-level changes between publication and Jan. 1, 2020, will be made available free of charge online. For more information and the most recent updates to the 2019 edition of the Analysis, please visit bookstore.

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INTRODUCTION

Highlights of the Analysis

From 2018 to 2019, maximum income benefits for total disability increased an average of 4.51% in the U.S., excluding American Samoa, the Federal Employees' Compensation Act (FECA), and the Longshore and Harbor Workers' Compensation Act. The average maximum weekly benefit in the U.S. for 2019 is $1,000.49. Iowa makes the highest benefit payment (excluding FECA), with a weekly maximum of $1,765. From 2018 to 2019, maximum income benefits for total disability increased an average of 4.60% in Canada. Canada's average maximum weekly benefit is $1,157.50 (Canadian dollars), excluding Manitoba.

Overview of the Analysis

The charts on the following pages present the statutory provisions of workers' compensation laws as of Jan. 1, 2019, unless otherwise noted. The charts detail the provisions of the laws of the federal, state, and territorial jurisdictions of the U.S. (including the District of Columbia, American Samoa, the U.S. Virgin Islands, FECA, and the Longshore Act) as well as the federal, provincial, and territorial laws of Canada.

The charts do not cover the Federal Black Lung Act, the disability provisions of the Social Security program, the Federal Employers' Liability Act (Jones Act), or veterans' benefits. Also, please note that D.C. government employees are covered by a separate local enactment that replaces FECA. The law for D.C. government workers is not charted except where it differs materially from FECA (Charts XI and XV).

Employees of the Canadian federal government and most Crown Agencies are compensated under the Government Employees Compensation Act. This Act is administered by Human Resources and Skills Development Canada. Compensation is paid by the Workers' Compensation Board for the province where the worker is usually employed. Government employees residing in the Northwest Territories or Nunavut may receive compensation in accordance with the Alberta Act. In view of this arrangement, the charts do not include the Government Employees Compensation Act except where it differs materially from the provincial acts.

The charts are grouped into three categories:

? Coverage of Laws, listing the various requirements pertaining to employment, injuries, and diseases (Part 1);

? Benefits Provided, detailing the required income replacement benefits and medical benefits (Part 2); and

? Administration of Laws, grouping the many administrative requirements and safeguards (Part 3).

All provisions presented by the charts required study and interpretation to reduce them to the brief statements found in the charts. In some instances, space does not permit sufficient explanation to clarify all points. In such cases, it may be helpful to examine the text of the law itself.

History of Workers' Compensation and Employers' Liability

Workers' compensation laws are designed to provide a satisfactory means of handling occupational disabilities. These laws, a 20th-century development in North America, evolved as the economy became more industrial and less agricultural. Before these laws were enacted, a well-established common-law principle held that an employer was responsible for injury or death of employees resulting from a negligent act. Thus, workers with disabilities who sued employers for damages had to prove their injuries were due to employer negligence--a slow, costly, uncertain legal process. As business enterprise and machine production expanded, the number of industrial accidents and personal injury suits increased. At the close of the 19th century, it was apparent that the accepted common-law defenses (contributory negligence, assumption of risk, negligent acts of fellow servants) operated too harshly on claims of workers with disabilities. The situation led to demands for legal provisions.

As a result, between 1900 and 1910, so-called employers' liability laws were adopted by many states. Although they tended to modify common-law defenses, the laws did not prove completely satisfactory; employees still had to prove employer responsibility and negligence. Other legal remedies were urged.

A new answer was forthcoming. In 1911, the first workers' compensation laws were enacted in the U.S. on an enduring basis. The first comprehensive Canadian laws were enacted in 1915.

Today, each of the 50 states, as well as Puerto Rico, American Samoa and the U.S. Virgin Islands, has a workers' compensation law. Federal workers' compensation laws have also been enacted, e.g., the District of Columbia Workers' Compensation Act, the Federal Employees' Compensation Act, and the Longshore and Harbor Workers' Compensation Act, the latter providing for private and public employees in nationwide maritime work. Each of the Canadian provinces and territories has a compensation act or ordinance as well.

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In essence, workers' compensation laws hold that industrial employers should assume costs of occupational disabilities without regard to any fault involved. Resulting economic losses are considered costs of production chargeable, to the extent possible, as a price factor. The laws serve to relieve employers of liability from common-law suits involving negligence.

Six basic objectives underlie workers' compensation laws:

? Provide sure, prompt, and reasonable income and medical benefits to work-accident victims or income benefits to their dependents, regardless of fault.

? Provide a single remedy and reduce court delays, costs, and workloads arising out of personal injury litigation.

? Relieve public and private charities of financially draining incidents associated with uncompensated industrial accidents.

? Eliminate payment of fees to lawyers and witnesses as well as time-consuming trials and appeals.

? Encourage maximum employer interest in safety and rehabilitation through appropriate experience-rating mechanisms.

? Promote frank study of causes of accidents (rather than concealment of fault), thereby reducing the number of preventable accidents and consequent human suffering.

To what extent have the laws achieved their desired objectives? Answers to this question vary from state to state and depend on many factors, including the viewpoint of the appraiser.

However, a 1972 evaluation by the National Commission on State Workmen's Compensation Laws concluded that state laws were not living up to their potential, and the commission made 84 recommendations for the improvement of the system. Nineteen of these were labeled essential. Despite this negative assessment, the commission was convinced that workers' compensation is a fundamentally sound system and a valued institution in our industrial economy.

In January 1976, the policy group of the Inter-Agency Workers' Compensation Task Force, with members from several U.S. government departments and agencies, reported its findings on the need for reform of state workers' compensation programs.

Essentially, the Task Force found that existing programs must be reformed to bring about more effective management at the state level, with the federal government monitoring progress and providing technical assistance. The group felt that, without a reordering of priorities and a new mode of operation, workers' compensation would become more expensive, less equitable, and less effective. After completing its mission, the Task Force was merged with the Division of State Workers' Compensation Standards in the Office of Workers' Compensation Programs at the U.S. Department of Labor.

The constructive criticism rendered by the commission and the Task Force gave new impetus to the development and growth of workers' compensation laws, and these laws now enjoy a more prominent role within the social insurance system of the U.S. The commission and the Task Force both rejected proposals to replace the various state programs with one federal program. Nevertheless, legislation has been introduced in the U.S. Congress for the past several years to give the federal government a direct role in the state systems by federally mandated "minimum standards." There has never been sufficient support for these bills to move them beyond the committee level.

A basic and oft-repeated objective of workers' compensation, where there is broad agreement, is that coverage under the acts should be virtually, if not completely, universal. For various historical, political, economic, or administrative reasons, no state law covers all forms of employment.

To aid employers in delineating the employment coverage requirements, Charts I, II, and III outline the stipulations of the various jurisdictions. Another basic objective for workers' compensation is to provide compensation for all work-related injuries and diseases. Note that workers' compensation does not seek to cover all worker health problems. To make this distinction, fairly uniform statutory definitions and tests have been adopted in each state. Typically, the statute limits compensation benefits to personal injury caused by accidents arising out of and in the course of employment.

Although the test is fairly uniform, its interpretations have not resulted in completely uniform coverage of injuries and diseases. Initially, this problem was remedied by providing coverage for specific occupational diseases. With advances in medical technology and increased exposures to a growing number of substances with a variety of physical stresses, it became impractical to define work-related diseases by specific enumeration. States have therefore amended their statutes to provide coverage of all occupational diseases. Chart IV portrays this shift in the laws, with every state and nearly every provincial law recognizing all occupational diseases.

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