Injured workers’ group claims injuries underreported in Nova Scotia, WCB disagrees
The number of workplace accidents reported to Nova Scotia’s Workers’ Compensation Board (WCB) is less than accurate, according to a former member of the board.
The current system unfairly rewards employers and, in turn, punishes injured employees, says Mary Lloyd, now the president of the Pictou County Injured Workers Association, which assists injured workers with the requirements of the WCB.
“The system has eroded so far from what it was meant to be that now you have an adversarial system,” she says. “The workers have to fight for every single level of benefit. You have the employers fighting them off all the way through the appeal for that level of benefit.”
However, there isn’t evidence of underreporting, according to the WCB.
“There is, at the moment, no indication to us of underreporting on the part of employers,” says Steve MacDonald, communications director at WCB Nova Scotia. “Injuries are required to be reported when there is time lost from work or when medical attention is required… whether that’s 15 minutes or an hour or two days.”
Nova Scotia’s WCB is legislated to be a neutral third-party administrator to a system with costs paid for by employer assessments. It determines whether claims made by injured workers are appropriate and pays out benefits from the money raised through assessments.
Every incident needs to be investigated by the employer to prevent it from happening again, says MacDonald. If there is time lost from work or if medical attention is required, they are required to report that to the board within five days of the incident.
Another way the WCB hears about injuries is from medical practitioners.
“It may actually be in most cases is that we hear about it from a health-care provider,” he says. “That visit generates the report to us and, in that case, that’s how we’re able to start the process to make sure that those medical costs are being borne by the WCB as they should be if it’s work-related.”
That’s evidence of the problem, according to Lloyd. The WCB often won’t hear about an injury unless the injured worker has to make a trip to the doctor at a later date, she says.
Businesses, specifically larger ones, have in-house medical staff that treat injured workers to avoid reporting injuries, she says, adding that it’s an option that looks good to workers because they don’t risk losing pay — or worse, their job.
“The underreporting here is because of the benefit system. It’s penalty-driven,” Lloyd says. “It’s an easy sell for an employer to coerce a worker because there’s a two-day waiting period… you lose two days’ pay for being injured. And then for your first 26 weeks, you don’t even see 75 per cent of (your net pay).”
The province’s Workers Compensation Act does not outline regulations or policies regarding in-house medical teams, but companies are required to notify the board of any incidents requiring medical attention or time loss from work.
“If you lose time for work, whether that’s an hour to go see a company medical practitioner of some kind… it doesn’t matter, the point is you’ve lost time from work and that injury is required to be reported to us,” he says.
Businesses should be investigated to determine whether in-house medical processes are being used because, if that’s happening, the possibility of preventing similar accidents is eliminated, Lloyd says, adding that lower incidents rates make the WCB look better.
“They failed a worker in the first place if they didn’t prevent the accident and now they’re failing the worker on the second chance because they’re putting them back to the same job that hurt them in the first place with no remedial action and no investigation,” she says. “It’s all about the assessment cost to employers and the target of the WCB. It’s not about safety, it’s not about reducing accidents.”
Experience rating
In 1996, Nova Scotia introduced its experience rating system. Employers’ base assessment rates can be decreased or increased depending on the employer’s claims cost experience compared to the claims cost experience of the rate group of which they belong The WCB categorizes businesses into industry groups, which are then categorized into rate groups.
The system is comparable to drivers’ insurance, says MacDonald.
“Drivers of a certain demographic would have a base rate and then, of course, each individual driver within that demographic would have the rate they pay for insurance be determined by their own experience,” he says, adding that, similar to drivers’ insurance, the system is intended to encourage safe, positive behaviour.
It’s this system that is leading employers to underreport their accident, says Lloyd.
“If they’re not reporting accidents, then they get reductions in their assessments. It’s an incentive to underreport accidents on the employer’s behalf,” she says.
In Ontario, the Workplace Safety and Insurance Board (WSIB) operates the New Experimental Experience Rating (NEER) program, which is similar to Nova Scotia’s experience rating program. First introduced in 1984, the program applies to businesses operating in at least one non-construction rate group and have total yearly premiums of $25,000 or more. There is a separate program for employers in the construction industry and smaller employers.
Like Nova Scotia’s program, NEER is no stranger to controversy.
In 2010, the province commissioned an analysis of the WSIB to address and resolve the board’s approximately $14.4-billion unfunded liability. Harry Arthurs, former president of York University in Toronto, chaired the review committee and authored the report, Funding Fairness.
While conducting research, Arthurs met with stakeholders, including workers who claimed to be victimized by the NEER program.
“I probably heard more on this subject than I heard on any other subject… I heard from 50, 60, 70 workers that (said) they had been abused,” said Arthurs. “And I’m sure what they were telling me was absolutely true, but what I couldn’t figure out was how frequent is this abuse. Is it just 60 or 70? Is it 60,000 and 70,000? I don’t know and nobody knows.”
Arthurs identified issues with the way employers were responding to the incentives, as well.
“Whether the prospect of getting a reduction in your rate for next year actually prompts you to go out and install safer equipment or better training systems… the evidence supporting it is very weak,” he says.
Because Arthurs did not have enough empirical evidence to determine whether financial incentives for employers actually reduce workplace accident rates, he saw no reason to change the program. However, stakeholder criticism regarding employer abuse of the program should lead the WSIB to investigate the effectiveness of the program to return integrity to the board.
“I said it’s incumbent on you, WSIB, to satisfy yourself that you’ve designed a system that meets that statutory test. At the moment, you cannot say that with a straight face,” he says. “And it’s also incumbent on you, WSIB, to be sure that people are getting what they’re entitled to and are not the subject of illicit pressures that deny them what they’re entitled to and nor can you plausibly say, ‘Oh, we’re convinced there are virtually no abuses.’”
Arthurs recommends the WSIB choose a significant industry to run a redesigned system on and monitor it closely for up to five years. In this time, the WSIB will be able to determine whether the new program is more beneficial or causes more harm.
The WSIB will not be able to determine whether the NEER program is effective by reviewing its past processes because it cannot determine whether other factors are contributing to the reduction of accident rates, Arthurs says.
“It would be tempting to leap to the conclusion that experience rating is therefore responsible for the reduction of accidents, but at the same time there’s been a huge reduction in manufacturing employment and manufacturing was a very fertile source of fairly serious injuries,” he says. “So, is the decline in the aggregate accident rate the result of the introduction of robotics, the substitution of machines for people? Is it the result of a slumping industry which is not pushing the assembly line to work at maximum speed so people can work at a somewhat leisurely and therefore safer fashion? We don’t know.”
The WSIB is “systematically” reviewing Funding Fairness, including looking at concerns regarding the possible underreporting of workplace injuries. says Christine Arnott, a spokesperson with the WSIB.
In Nova Scotia, the Pictou County Injured Workers Association asked Labour Minister Marilyn More for a royal commission to review their WCB. The request was denied.
But laws in Nova Scotia do have to change, says Lloyd, who also compares workplace injury legislation to automobile laws.
“If I went out today and I hit someone with my car… I'm going to pay for that,” she says. “So, if you knowingly have unsafe work conditions and work practices, and you've had these injuries before and you continue to have them, that should be a crime.”
