Presentation on Consultative Programme for Development of Policy & Legal Regime for Employment Injury & Occupational Disease Benefits

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1 Presentation on Consultative Programme for Development of Policy & Legal Regime for Employment Injury & Occupational Disease Benefits

2 Objectives of Presentation Identify legal principles & international labour standards re. employment injury benefits Outline main provisions of WCA Discuss challenges of WCA Outline previous policy proposals for change Discuss legal framework in selected jurisdictions Discuss process Outline key issues for consideration

3 Legal Principles Early actions for damages for personal injury suffered at work were stymied by doctrine of common employment & volenti non fit injuria Situation changed in 1937 when Court confirmed existence of employer s general duty of care in tort for safety of employees, namely to provide: competent fellow workers; safe materials; proper system of work; and safe place of work.

4 Legal Principles Employer liable not only for physical injury but also mental harm and psychiatric disease Legislation provides for compensation without having to prove fault of employer

5 International Labour Standards Source: ILO Conventions (Nos. 121/130/102) National legislation re. employment injury benefits shall protect all employees, including apprentices, in public & private sectors, cooperatives, and re.death of breadwinner, dependants Legislation should also prescribe list of occupational diseases or include general definition

6 Special Measures for Developing Countries Countries with insufficiently developed economic & medical facilities may have temporary exceptions limited to prescribed categories of employees At least 75% of employees in industrial undertakings must be covered Exceptions to be progressively reduced

7 Exceptions Casual labour otherwise employed Out-worker Employer s family living in his house Other category not to exceed 10% of all employees Legislation may exclude seafarers, fishermen or public servants where there they are protected by special schemes with no less favourable benefits

8 Contingencies Morbid condition Incapacity for work resulting from such condition & involving suspension of earnings Total loss of earning capacity or partial loss likely to be permanent or loss of faculty Loss of support suffered as result of death of breadwinner by dependants

9 Industrial Accident Legislation must prescribe definition of industrial accident, including conditions under which a commuting accident is considered an industrial accident and shall specify the terms of such definition in its report to the ILO. 9

10 Standards: Benefits Compensation for loss of earnings capacity (Minimum schedule of payments) Medical care: general & specialist in-patient & out-patient care, dental care, nursing care at home or in hospital or other medical institution & allied medical care, prescribed drugs Eligibility for benefits does not depend on length of employment or duration of employment

11 Standards: Benefits Where total loss or substantial partial loss of earning capacity is likely to be permanent, benefit shall be a periodical payment Where partial loss of earning capacity is likely to be permanent but not substantial, benefit may be a lump-sum payment In exceptional cases, periodical payment may be converted to lump sum 11

12 Standards: Benefits Where disabled person requires constant help or attendance of another, there should be increments in periodical payments Cash benefit in respect of death of breadwinner shall be periodical payment to widow and dependants Rate of cash benefits shall be reviewed following substantial changes in general level of earnings resulting from COL Funeral benefit should be normal cost of funeral 12

13 Suspension of Benefits Benefits may be suspended where: person is absent from territory person is maintained at public expense person made fraudulent claim injury caused by criminal offence committed by person concerned injury caused by voluntary intoxication or serious & wilful misconduct of person concerned 13

14 Suspension of Benefits person without good cause neglects to make use of medical care & allied benefits or rehabilitation services placed at his disposal surviving spouse is living with another person as spouse 14

15 Other Measures Member shall: take measures to prevent industrial accidents & occupational diseases provide rehabilitation services designed to prepare disabled person for resumption of work further placement of disabled person in suitable employment 15

16 Non-discrimination Members shall assure to non-nationals equality of treatment with its own nationals as regards employment injury benefits 16

17 Trinidad and Tobago Workmen s Compensation Act (WCA) Workmen s Compensation Act Chap.88:05 deals with: compensation for employment injury medical care & expenses occupational diseases compulsory insurance administration & enforcement

18 Compulsory Insurance Part V provides that it shall be unlawful for any person to employ any workman unless there is in force in relation to the employment of that workman a policy of insurance (except Government) Compulsory insurance provision does not apply to Government as employer

19 Compulsory Insurance Employer required to produce for inspection policy of insurance Minister may agree to guarantee bond by employer if satisfied it is a sufficient security PS may enforce guarantee bond 19

20 Compulsory Insurance Any condition in policy disclaiming liability in event of some specified thing being done or omitted to be done after accident shall be of no effect. Employer who contravenes requirement for compulsory insurance commits an offence Where employer needs licence to carry on business, no licence to be given without compulsory workmen compensation insurance

21 Compulsory Insurance Workman means person under a contract of services or apprenticeship with an employer Following persons not regarded as workmen: non manual labour earning in excess of $5,000 per year casual employee employed otherwise than for purposes of employer s trade or business

22 Compulsory Insurance Outworker Employer family member dwelling in his house Defence Force & auxiliary force Police/Fire Service

23 Compensation: Employer s Liability Where personal injury by accident arising out of & in course of employment is caused, employer liable to pay compensation provided injury disables workman for at least 3 days injury not caused by serious & wilful misconduct of workman (unless injury results in death or serious & permanent disablement)

24 Presumption Accident resulting in death or serious & permanent disablement shall be deemed to arise out of & in course of employment, notwithstanding workman at time of accident was acting in contravention of statutory obligation or other regulation or without instructions from employer, if act was done for purposes of & in connection with employer s business

25 Amount of Compensation: Death Where death occurs: lump sum of 36 months earnings for dependants wholly dependent if dependants not wholly dependent such sum not exceeding 36 months as may be agreed upon or as determined by Commissioner to be reasonable and proportionate if no dependants, funeral expenses not exceeding $500

26 Compensation: Total Permanent Disablement Where permanent total disablement results from injury: in case of an adult, a sum equal to 48 months earnings in case of a minor, a sum equal to 96 months earnings

27 Compensation: Permanent Partial Disablement Where permanent partial disablement results from injury: (i) where injury specified in 2nd Schedule, such percentage of compensation which would have been payable in case of permanent total disablement as specified (ii) where injury not specified in 2nd Schedule, such percentage as is proportionate to incapacity caused by injury

28 Disablement: Temporary Disablement A half-monthly payment during disablement or 5 years, whichever is shorter: (i) for adult, sum equal to one-third monthly earnings (ii) for minor, sum equal to one-half or after 17, to one-third monthly earnings

29 Occupational Diseases Minister to appoint Medical Board Worker entitled to compensation where Medical Board grants certificate that workman is suffering from any disease in Schedule Compensation payable where worker is disabled or died from disease

30 Occupational Disease: Presumption of Death Where workman becomes disabled by or dies from scheduled disease within specified period of employment, it shall be presumed unless contrary is proved that disease was due to nature of employment

31 Challenges of WCA Legal Definition of workman (non manual) too restrictive No definition of accident arising out of and in the course of employment Occupational diseases: need for consistency with OSHA

32 Challenges of WCA Scope Too many workers excluded from coverage Unclear as to extent Act applies in cases of death or injury to employee as a result of violent crimes in workplace or arising from employment

33 Challenges of WCA Inadequacies Act silent on mental/psychiatric illness arising out of employment Act silent on allied medical care Act focuses on industrial injuries/accidents; not sufficient attention on employment injuries in nonindustrial sector Penalties not sufficiently dissuasive Insufficient enforcement measures

34 Challenges of WCA Benefits Limits on benefits may not cover the total period of loss of earnings No provision for periodical payments No provision for review of cash benefits following substantial changes in general level of earnings resulting from substantial changes in COL Medical expenses limited to $500

35 Legislative Framework in selected Jurisdictions Barbados National Insurance & Social Security (Employment Injury Benefit) Regulations, 1970 All workers in insurable employment are covered Insured worker entitled to injury benefit up to 52 rate of 90% insurable earnings Insured worker entitled to disablement benefit at prescribed degree of disablement

36 Legislative Framework in selected Jurisdictions Barbados Medical expenses subject to reasonable expenses reasonably incurred, including Medical expenses incurred outside of Barbados not to exceed $1,000 Funeral grant & death benefits

37 Legislative Framework in selected Jamaica Jurisdictions Workmen s Compensation Act, 1938 Covers all workmen except casual workers, outworkers, employer s family member in household, agricultural workers(except those employed on large farms 25 acres or more or employed to drive equipment or use machinery), domestic workers, Government employees

38 Legislative Framework in selected Jamaica Jurisdictions No obligation for employers liability insurance Employer liable to pay compensation for injury by accident arising out of and in course of employment Employer not liable for compensation where: (a)injury incapacitates workman for less than 5 consecutive days, (b) accident attributable to workman s own serious & wilful misconduct

39 Legislative Framework in selected Jurisdictions Jamaica (c) accident attributable to workman s own serious & wilful misconduct including (i) under the influence of drink or drugs (ii) contravention of law, regulation or order with reckless disregard (iii) wilful removal or disregard of safety guard or other safety device In case death, compensation of 36 months wages to dependant

40 Legislative Framework in selected Jamaica Jurisdictions In case of permanent total incapacity, sum equal to 48 months wages

41 Legislative Framework in selected Jurisdictions England Employers Liability (Compulsory Insurance) Act 1969 All employers must have insurance against liability for bodily injury or disease sustained by employee & arising out of and in the course of employment in Great Britain

42 Legislative Framework in selected England Jurisdictions Exceptions: (a) designated relatives of employer (b) workers not ordinarily resident in GB Exemptions: government, councils, national boards Approved policies from authorised insurers Minimum level of coverage (5 mn pounds)

43 Previous Bill: Employment Injury & Disability Bill 2000 Bill applied to all employers and employees, except protective services & persons on disability assistance Proposed Employment Injury & Disability Benefits Board responsible for administration of proposed Act, including receipt & determination of claims for benefits Proposed Employment Injury & Disability Fund

44 Previous Bill: Employment Injury & Disability Bill 2000 Assessment & contributions to be paid by employers Employees & dependants entitled to benefits where employee suffers personal injury by accident arising out of & in course of employment If injury attributable solely to serious & wilful misconduct of employee, no benefits payable unless injury results in death or permanent disability

45 Previous Bill: Employment Injury & Disability Bill 2000 Proposed benefits to employee & dependants where employee suffers from occupational disease Person may make claim to Board for a determination of right to benefit Person to elect between making claim for a benefit to Board or filing civil action in High Court

46 Previous Bill: Employment Injury & Disability Bill 2000 Benefits In case of permanent total disability, weekly payment of 75% of employee s average weekly earnings during lifetime of employee In case of permanent partial disability, Board shall estimate impairment of earning capacity and award 75% of employee average weekly subject to judicial review in IC

47 Previous Bill: Employment Injury & Disability Bill 2000 In case temporary total disability, periodic payment so long as disability lasts equal to average weekly earnings In case of temporary partial disability, payment of 75% weekly earnings throughout the duration of the disability Provision for medical, surgical treatment, rehabilitation & social care.

48 Process 2011 Introductory Consultation Focus Group Stakeholder Consultations on guiding principles, issues & options with NATUC/FITUN; ECA/Chambers of Commerce; NIB/ATTIC; Registrars; OSH Authority; TT Medical Association; THA Draft Policy Stakeholder consultations on Draft Policy Finalise policy & Drafting of Bill

49 Issues for Stakeholder Consultations Compulsory insurance or Fund Scope of Application & Exceptions Coverage for all employment injuries or injuries resulting from accidents only Definition of arising out of and in the course of employment Periodical Payments or Lump Sum Benefit Limit on quantum of Benefit Review Occupational Diseases in light of OSHA

50 Issues for Stakeholder Consultations Review List of Permanent Disablement Treatment of Psychiatric injuries Allied medical care Penalties Administration Enforcement Cost implications of improved benefits

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