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Majority Of Workers Hurt Or Killed While On The Job By Japan's March 11th Earthquake and Tsunami Won't Be Covered By Workers' Comp
By Jorge Alexandria - March 23, 2011

Today’s digital era has given us a front row seat to witness Japan’s 9.0 magnitude earthquake and subsequent tsunami that have devastated the northern prefecture of Miyagi. The dramatic video images have given the world a sense of scope and the depth of the horror as solid structures and massive boats are tossed around by the ocean like toys. Humankind itself appeared to be powerless against the forces of nature.  Since the tsunami struck around 2:30 in the afternoon, when many of the people being swept away to sea were working, there is the conception that their deaths are compensable under Japan’s workers compensation system.

Workers’ compensation in Japan is under the control of the government and based on the Workmens’ Compensation Law of 1947. The scope of insurance extends to all on-the-job injuries and diseases and commuting accidents. To be covered one only needs to sign an employment contract with an employer.  It covers both indemnity and medical benefits. In addition, there are collective agreements that provide for supplementary compensation beyond the levels of the state and are managed by a number of private insurance companies like QBE, Lloyds Insurance and Chartis Global. Persons not covered in Japan are those on a trainee’s visa. Although these workers may be engaged in practical activities alongside Japanese workers, they are regarded as being in “on-the-job training” and are not regarded as workers. Therefore Workers’ Accident Compensation Insurance does not apply to them.

Over the past few days, claim adjusters from the aforementioned private companies have poured into the rubble trying to assess not only the scope of the catastrophe, but more importantly their losses--as insurance is all about risk and risk transfer.  Other than the hero workers at the Fukushima Nuclear Plant, (who in the mist of a certain death from radiation continue to chop away at their jobs in a brave attempt to prevent a nuclear reactor meltdown), not every worker in Japan will be covered by workers compensation. The sad reality is that the earthquake and ensuing tsunami is an “Act of God”. Employers have little control over these extraordinary acts and the Ministry of Labor will not hold them responsible for its aftermath. Furthermore, earthquake related injuries do not meet the classic and legalistic definition of “arise out of” and “in the course of employment" (AOE/COE). Yes, everywhere but in socialist countries AOE/COE is a universal language. There must be a causal connection between the employment and the injury which had its origin in a risk connected with the employment, and flowed from that source as a rational and natural consequence.

Albeit difficult in this context to state something positive, great engineering and strict building codes and enforcement saved tens of thousands of lives.

alexandria.jorge@dol.gov

Jorge Alexandria is an Acting District Director at the Office of Workers' Compensation Programs of the U.S. Department of Labor.  The views and knowledge expressed in this article are Jorge Alexandria's alone and do not speak for the U.S. Department of Labor.

 
 

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