A 19th century solution to a 21st century problem (Guest commentary)

100-year-old WCB needs to be overhauled

Experienced workers who suffer long-term injuries and work-related diseases are being denied compensation and, instead of focusing on a healthy return to work, are being forced into an adversarial and lengthy appeals process where the burden of proof is placed on the injured worker, contrary to the legislation.

The result is a worker who is further injured by the workers’ compensation process itself, resulting in a decreased likelihood he will ever return to work. And it is not just one worker who is lost to the system. It is also his family members and friends who see the futility of pursuing a career in high-risk professions when there is no support. Whether or not these concerns are scientifically correct, perception is everything and the pursuit of “risky” careers is in decline.

In an era where many organizations are struggling to entice and retain experienced employees, this isn’t going to do wonders for a labour shortage.

Horror stories from injured workers are rampant all over the Internet regarding their treatment at the hands of workers’ compensation boards (WCB). They tell of bankruptcies, divorces, inappropriate treatments, worsened medical conditions and even suicides resulting from not only the inadequacy of compensation, but from abuses caused by the adversarial process.

Why does workers’ compensation do this? Because the system is paid for by employers who are constantly lobbying for decreased premiums. The result is that boards look for ways to reduce costs. The easiest way is to deny long-term claims or cut off claims prematurely. In Wilson v. Medicine Hat (City), a 1999 ruling by the Alberta Court of Queen’s Bench, Justice MacLean said the board’s primary purpose was to protect employers by bringing uniformity, efficiency, expediency and cost-saving measures to accidents that occur in the employment relationship.

“It cannot be said that the board is independent insofar as the worker is concerned,” Justice MacLean said. “It is a board set up to protect the employers. The board is funded by the employers, and the board has a duty and probably a primary duty to protect the employer…this is not a level playing field, it is not fair, and it offends the basic principles of natural justice.”

Provincial workers’ compensation systems will claim more than an 80-per-cent satisfaction rate amongst claimants. But the types of injuries represented in this 80 per cent are likely the short-term, less serious injuries.

Injured workers say their specialists’ reports are being overruled by doctors, nurses and even non-medical staff who are paid by the workers’ compensation system. One doctor in Nova Scotia publicly reported coercion by compensation board officials to deliver injury reports that agreed with board findings rather than her evidence-based diagnosis.

Courts and appeals tribunals in various provinces have repeatedly ruled against claim denials. Yet compensation boards essentially ignore these decisions and further avoid paying legitimate injury claims.

Uncompensated injured workers are taking legal, political and media action and are naming names, quoting workers’ compensation executive salaries and following investment money trails that show conflicts of interest in workers’ compensation investment practices. They are also identifying conflicts of interest that explain why provincial governments are unwilling to address injured workers’ complaints. These conflicts of interest include:

•provinces attract business investment and gain political support by keeping WCB fees low;

•provinces gain political support by keeping workplace injury stats low;

•the provincial government as an employer avoids costs when workers’ compensation denies a provincial employee’s compensation; and

•provinces benefit from workers’ compensation “reserve” or “investment” funds, which are invested in their province.

One of the few things all parties can agree upon is that nobody is entirely happy with the existing system. They all suffer to varying degrees from the maze of injury and compensation rules, fee structures, reporting systems, appeals processes and increasing complaints from injured workers.

Some are so convinced the system is beyond rehabilitation that they are advocating wiping the slate clean and starting over. The workers’ compensation system is the oldest social safety net in Canada. It started a century ago, before the Canada Pension Plan, employment insurance, welfare, health care and before there was a globally competitive economy.

Some solutions are emerging. One idea is to create a single system for all Canadian disability and injury compensation systems. Some see a base minimum income as the solution and others argue paying for injury compensation should not be the sole responsibility of employers. If taxpayers and employees became stakeholders by paying into the system, it would naturally become more equitable.

The Canadian Injured Workers Society is advocating a federal public judicial inquiry into the workers’ compensation system, which is not only broken, but it also hampers Canada’s global competitive position.

Jane Edgett is president of the Canadian Injured Workers Society, an Saskatoon-based not-for-profit group seeking to improve workers’ compensation. For more information visit www.ciws.ca.

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