'They should not be worried about whether they're going to be able to be rehabilitated for an injury in the workplace'
When former Canadian Football League (CFL) player Jonathan Hefney was injured during a 2015 game playing for the Montreal Alouettes, he suffered a broken neck and severe nerve damage.
As a result, he was forced to retire and was unable to play football anymore.
Returning to his native U.S., Hefney underwent various expensive surgical procedures and eventually ended up in jail, after being unable to find legitimate employment to pay for his medical expenses.
“The team fulfilled the obligations that they had in the collective agreement, which at the time was 12 months of coverage. He moved back down to the U.S. with no ability to get insurance down there because it was now a pre-existing injury and was left to fend on his own to get the surgeries even to rehabilitate himself to move his arm,” says Brian Ramsay, executive director at the Canadian Football League Players Association (CFLPA) in Victoria.
“That shouldn’t be happening in Canada right now for any employer. We’re asking to remove the [workers’ comp] exclusion for professional athletes in Canada.”
‘100 per cent rate of injury’
Today, the CFLPA is asking provincial governments to include its players in workers’ compensation programs to give them financial protection when the inevitable happens.
“We’re in a workplace that’s got a 100 per cent rate of injury. Our average career is three years, so whatever our members are going to do after professional football, they’re going to do for a lot longer than their time on the field, and to not be rehabilitated from any injuries that are suffered during that football career to be able to maintain and provide for the rest of your life is unacceptable.
“Our members understand that there is a higher risk but they should not be worried about whether they’re going to be able to be rehabilitated for an injury in the workplace,” says Ramsay.
The campaign for coverage began in 2018, after the Supreme Court refused to hear a case around former player Arland Bruce, who sued the league after he suffered various concussion-related injuries. A lower court ruled that Bruce and others must use the grievance procedure, and not the court.
“Prior to that, professional athletes in Canada had the right to use the courts to sue their employer and that’s why professional athletes were excluded from workers’ compensation coverages per employee across Canada,” says Ramsay.
So far, the B.C. government has given a favourable response to their plea, he says: “We remain on their work plan as an active file within review."
The Ontario government also made a pledge to look at the issue.
“We need to improve our compensation system for injured workers. That is why our government launched a review of the WSIB and installed new leadership at the agency last year. Over the coming months, we will continue to make changes that put injured workers and their families first,” said a statement provided to Canadian HR Reporter by Sydney Dubin, communications advisor with Monte McNaughton, Minister of Labour, Immigration, Training and Skills Development.
Firefighters in Ontario recently received expanded cancer coverages, under changes made to WSIB.
Excluded category
While pro athletes in Canada are excluded from coverage, there are others, says a lawyer.
“It also excludes other types of work, including stunt performers [in Ontario] and circus performers. There’s a category that’s excluded and so from the government’s perspective, if they’re looking at allowing athletes, they would also have to take another look at stunt performers and circus performers, which, it’s an open question,” says Melanie Sutton, associate lawyer in the employment law and labour law groups at Nelligan Law in Ottawa.
“Obviously, these are all categories of employment that are inherently risky and so it becomes a question if it is public funding for the insurance benefits so, the government has to weigh that in terms of the inherent risks and whether that should be a category that’s included in the benefits.”
If the provincial government did decide to bring in these excluded workers, it would have to change the law, according to Sutton.
“All of the benefits covered by WSIB, they are regulated under the Workplace Safety and Insurance Act, which is of course enacted by the provincial government and so any decisions that WSIB makes, they have to make them in accordance with that statute. As it stands right now, there’s a very clear exclusion in the statute for competitors of individual and team sports and so that’s why at the very base, athletes aren’t protected by WSIB.”
‘Coalition’ formed
After the Bruce case was denied a hearing in 2018, the CFLPA went to all the other pro leagues to form a “coalition” to ask governments to bring football players and other pro athletes in, says Ramsey. “We have the support of every professional group in Canada,” he says.
However, the CFL has refused to support the CFLPA move. “When we put this forward to the province and the various workers’ compensation boards, the other leagues provided neutrality on this issue and have removed any objections to this change happening, except for the CFL,” says Ramsay.
Under workers’ compensation regimes, the amount of coverage can be extensive, says Sutton.
“The type of benefits that the WSIB would cover, they would provide loss-of-earnings benefits for the period of time that you’re unable to work or if you come back on modified duties or reduced hours, they would cover any top-up to your regular income.”
But it also includes other expenses that relate to the workplace injury, she says.
“They also provide health-care benefits so if you need physio and massage, chiropractor, things like that, that may or may not be covered under other employment health benefits, or you might have limited coverage for it under your employer’s health-care benefits, but because the injury exceeds what you’d be covered for, WSIB will cover those treatments as well.”
This wage coverage can last until the worker reaches 65 years, says Sutton.
Seventy per cent of injured workers experienced pain 18 months later, found a recent Institute for Work and Health (IWH) study.
Ongoing battle
For the CFLPA, the fight will continue but “there is obviously still work to be done,” says Ramsey.
“We’ve done 24 visits since 2018 in the provinces that are our members play in, at various levels of government, and provincially, federally, and also with the workers’ compensation board. We’ve made progress in British Columbia and we’ve made progress in a number of provinces, quite frankly, and I think it’s something that remains important to our membership and those members in our coalition, and we’re going to continue to press the issue that makes to make these changes.”
“There has to be an avenue for our members to find support and assist them when they’ve been denied the courts,” he says.
