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Workers’ Compensation and controversial illnesses

Katherine Lippel

Université du Québec à Montréal, Département des sciences juridiques, c.p. 8888, Succursale Centre Ville, Montréal H3C3P8, Québec,

Abstract

Workers in Québec have the right to compensation if they become incapable of working because of illness attributable to a work accident or considered to be an occupational disease. When the aetiology of disease is controversial, as in the case of many musculo-skeletal disorders, or when the existence of a disease is questioned by the medical establishment, as in the case of fibromyalgia, multiple chemical sensitivities syndrome, and sick building syndrome, it becomes difficult to access economic support from workers’ compensation systems in the event of disability. In this chapter we examine workers’ compensation appeal cases in Québec with regards to these illnesses. After making the distinction between illness that is made to seem controversial by medico-legal arguments as opposed to illnesses that are actually controversial in the medical community, the article examines case law concerning each type of illness and obstacles to compensation that are specific to each illness. The Court of Appeal has ordered the workers’ compensation appeal tribunals to compensate when proof in a given case shows that it is more probable than not that working conditions or a work accident triggered the illness, even though no consensus exists in the scientific community with regard to that illness. As a result, access to compensation for fibromyalgia and, to a lesser extent, for Multiple chemical sensitivity syndrome, has been slightly less difficult. The article concludes with a discussion of the effects of the stringent criteria applied by the appeal tribunal on the workers suffering from a controversial illness and a reminder that workers and their families pay the price when compensation is denied because of controversy.

Introduction

Workers in Québec have the right to compensation if they become incapable of working because of illness attributable to a work “accident” or considered to be an “occupational disease”. When the aetiology of disease is controversial, as in the case of many musculo-skeletal disorders, or when the existence of a disease is questioned by the medical establishment, as in the case of chronic fatigue syndrome, fibromyalgia, multiple chemical sensitivities syndrome (MCSS), and sick building syndrome, it becomes difficult to access economic support from workers’ compensation systems in the event of disability. In this chapter we will examine the workers’ compensation appeal cases in Québec, with regards to these illnesses, looking at the different facets of controversy with particular attention on gender issues surrounding compensation claims for these illnesses.

This paper draws on traditional legal analysis of caselaw and also relies on caselaw as a source of information about the behaviour of the different actors in the compensation system (Lippel 2002). It is also informed by interview data drawn from a qualitative study of the effects of the compensation process on workers health (Lippel et al, 2005). 85 injured workers (41 women and 44 men) were interviewed individually with regard to this question and the medico-legal controversies were at the heart of many of their stories. Among these workers were women who suffered from controversial illnesses in the strict sense: fibromyalgia, multiple chemical sensitivity syndrome, and several workers, mostly women and some men, who suffered from different types of musculo-skeletal disorders.

The first part of this paper describes workers’ compensation legislation and its impact on behaviour of the different actors. In this highly polarised context, actors can actively promote controversy with regard to illnesses that are not in themselves really controversial. The second part concentrates on compensation claims for illnesses known to be controversial either with regard to their existence, their cause or their consequences.

Workers’ Compensation as context for examining controversial illness

The politico-legal environment in which claims are made

In Québec, as in other Canadian provinces, workers who become ill because of their work may seek compensation from the workers’ compensation board, (the Commission de la santé et de la sécurité du travail or CSST), and if the board concludes that disability is attributable to an “employment injury” they will receive 90% of their net salary for the duration of their disability and other benefit if they remain permanently disabled, including access to vocational rehabilitation.

Contrary to European countries such as the Netherlands (Pennings, 2002), Canada has no universal disability insurance covering either temporary or permanent disability. In the case of temporary disability, Employment Insurance benefits, are available to workers who have contributed to the EI scheme for a sufficient number of hours. Those eligible need show they are unable to work for medical reasons and they will then receive 55% of their gross salary for a maximum of fifteen weeks. Those who have contributed to the Québec or Canada pension plans may be eligible for economic support in the case of total disability but partial disability is not covered by the social insurance (non means-tested) safety net unless it falls within workers’ compensation coverage. For many, particularly those who develop long term disability, workers’ compensation becomes the only source of income support available and for these people, the stakes are high when recognition of their illness is at issue.

Workers’ compensation coverage varies from province to province. The vast majority of workers’ are covered in Québec and British Columbia, but less than 70% of Ontario employees are eligible for workers’ compensation benefits, and many jobs traditionally occupied by women, like teaching and work in the financial sector, are not covered by workers’ compensation in Ontario. Some form of sickness benefits through insurance are available to 50% of the Canadian salaried workforce, but only 14% of temporary employees and 17% of part-time employees have access to complementary insurance benefits, while 58% of full time workers have access to these benefits (Marshall 2003, Table 2).

Given that every workers’ compensation system is different, this article will focus on the Québec system, and it is important to note that rules may differ in other jurisdictions in Canada.

Legal framework and burden of proof: scientific certitude and compensation board culture

In Québec, workers must prove on a balance of probabilities that their work, or a work accident, was a contributing cause of their illness. They must also prove that their illness is totally disabling, to access full income benefits, or has left them partially disabled, in which case they will receive compensation for lost earning capacity. In the legislative language, “‘employment injury’ means an injury or a disease arising out of or in the course of an industrial accident, or an occupational disease, including a recurrence, relapse or aggravation”. Some illnesses may be triggered by an accident, as in cases of fibromyalgia that develop after initial trauma. Other illnesses develop directly because of working conditions. The Act identifies occupational illnesses that are presumed to be work related (AIAOD s. 29 and Annex 1), and permits workers to claim for illnesses that are not listed, if they can show they were caused by work and are either ?characteristic of that work? or related to ?risks peculiar to that work? (AIAOD s.30).

Although Québec law provides that the CSST is bound by the opinion of the treating physician regarding most medical issues including diagnosis, degree of disability and treatment, both the CSST and the employer can contest any of these opinions, and medico-legal controversies are prevalent not only in the case of controversial diseases but in many cases where injury is more obvious. Litigation surrounding all workers’ compensation issues, but particularly medico-legal issues, has been on the increase since the 1990’s because employer premiums which fund the system are now directly linked to costs of compensation for individual workers. As a result, a new “industry” has developed around workers’ compensation litigation and many medical experts, consultants and lawyers now make their living contesting workers’ claims for compensation.

Legally, workers have to prove that it is more probable than not that they are 1.suffering from an “illness”; 2. contracted because of a work accident or in the course of employment; 3. that the illness can be ascribed to employment risks or is peculiar to their work, in the case of occupational disease and 4. that the illness is disabling. Legal culture and the courts are clear that the worker need only prove these elements on a balance of probabilities, yet in science and to some extent in medicine there is a strong tradition relying on principles of scientific certitude. Because doctors and scientific literature play an important role in the adjudication process, it often happens that compensation boards and even appeal tribunals import exigencies that are inappropriate in a legal context, exacting of workers levels of certainty that are inappropriate, approaching 99% certitude when 50%+1 is the traditional burden of proof (Cranor, 1993; Jasanoff, 1995). In cases of civil liability, the Supreme Court of Canada has clearly stated that plaintiffs in civil law need only prove causation is more probable than not, (Snell, 1990). This approach is often strongly resisted by compensation boards whose dominant culture is medical, and medical experts who testify in appeal cases still feel they can recommend claim denial if scientific uncertainty surrounds the issues raised in the case. This culture shock between the medical and legal communities often gets played out in a context in which the person who is ill, and who is the least able to invest in litigation, has to invest money, time and energy in order to access compensation, as it is often only in appeal that the appropriate standard of proof is applied.

In order to better understand controversial illnesses in the context of workers’ compensation litigation the first step is to pinpoint where the controversy lies. Sometimes the only controversy is that regarding causation; there is no contest that the worker is disabled by a recognized illness, the only question is whether work or a work accident caused the illness, as in the case of many musculo-skeletal disorders. In other cases, not only does the compensation authority question causation, but they also may question disability and even the existence of the illness itself, as in the case of multiple chemical sensitivities and, until recently, fibromyalgia.

Creating controversy: Repetitive strain injury and other musculo-skeletal disorders (MSD’s)

One of the most important medico-legal controversies in the last twenty years is that surrounding musculo-skeletal disorders associated with repetitive work. Often referred to as RSI, an umbrella term including most MSD’s, these health problems have been increasing all over the industrialised world. Québec legislation actually presumes that certain musculo-skeletal disorders (tendonitis, tenosynovitis and bursitis) are caused by repetitive work, yet employer medico-legal teams have succeeded in instilling the idea that these diseases are controversial, instilling doubt not only with regard to issues surrounding causation but in some cases attacking the legitimacy of the illnesses themselves, by alluding to the idea that the illness is the product of ?mass neurosis?. In the words of a medical expert working with Canada Post

?We find here the same mass neurosis as in Australia characterized by a mutual interactive influence among workers as well as personal physicians, favouring the propagation of ideas, concepts and dogmas which are only hypothetical and not proven and which on the contrary glorify victimization and are thus detrimental to society and the worker.?(trans. Messing, 1998, p. 93, quoting Canakis, 1994).

In three1994 test cases, Canada Post contested claims brought by workers doing highly repetitive work and in two of these, succeeded in convincing the Commission d’appel en matière de lésions professionnelles (CALP), the appeal tribunal in Québec at that time, that in two of the three cases (those brought by two women) that the injury was not caused by work. One decision of over 400 pages relied on epidemiological data almost to the exclusion of legal principles, to conclude that repetitive work in itself was not a cause of the workers’ disease, regardless of the legislative presumption to the contrary. The Canada Post medico-legal team then organised a conference where representatives and experts were presented with the successful medico-legal approach(Lippel et al, 1999). Then followed a big increase in employer disputes regarding such claims, and there is still a great deal of litigation surrounding claims, even those for illnesses presumed to be work-related.

The type of discourse alluding to mass neurosis or questioning work relatedness is particularly successful in cases brought forward by women. In a study of 314 appeal cases in Québec it was found that women workers seeking workers’ compensation benefits were less often successful than men both for illnesses presumed to be work related, such as tendonitis, and illnesses that were not covered by the legislative presumption, such as carpal tunnel syndrome (Lippel, 2003). These types of difficulties are not specific to Québec, and have been documented in English Canada (Kome, 1998, 71-99) and in Australia (Bohle et al, 2000). In Australia medical consultants still actively promote the controversial nature of musculo-skeletal disorders, offering their services to help contest claims[1] (Lucire, 2003). The effect of these allegations, questioning the legitimacy of pain, is to undermine the credibility and honesty of the worker, and controversy surrounding these claims promotes further ill health (Reid et al, 1991). Nor are these types of difficulties new, on the contrary, they are often based on bias in the medical textbooks, sometimes dating back to the mid twentieth century, as in the case of Carpal tunnel syndrome (Dembe, 1996, pp. 69-77).

While it is possible that in a given case musculo-skeletal disorder such as tendonitis or carpal syndrome is not caused by work, when we talk about “controversial illnesses” these types of illnesses do not readily come to mind as the existence of the illnesses is not debated in the traditional medical community and many studies and meta-analyses have shown that the illnesses are often caused by work (Kuorinka & Forcier, 1995; Bernard, 1997). The CSST itself makes the prevention of musculo-skeletal disorders a priority and underlines that, in the year 2000, MSD’s were responsible for 40% of the costs of compensation and 38% of occupational injury(CSST, 2005).

If such “mainstream” illnesses can become the object of so much controversy, it is not surprising that claims for truly controversial illnesses are rarely accepted. Let’s now examine the situation of four such illnesses: fibromyalgia, chronic fatigue syndrome, multiple chemical sensitivity syndrome (MCSS) and sick-building syndrome.