The Fair Practices Office for Worksafe BC receives 2,000 complaints each year. Retired labour lawyer Janet Patterson has shown the crown corporation how to lower that number significantly. After extensive consultations, she submitted her report in October 2019 with 102 recommendations and 517 pages. It took the province ten months to make the report public and one can only hope it moves more quickly to implement changes.
Patterson says the review process works well for workers with simple injuries and a predicted path of recovery. But others “tended to have very negative compensation experiences and outcomes. This was particularly the experience of workers with serious or complex injuries, concussions, psychological injuries or occupational diseases. Such cases often had poor or no investigations, disregarded medical evidence or little communication with the worker before a decision was made.”
Even worse, “many individuals, workers and employers, stated . . . that the Board did not investigate or consider their evidence in decision-making.” Nor was there effective recourse. Patterson says, “The courts have commented that the system was ‘unwieldy, inefficient and cumbersome’, creating a ‘treadmill’ of appeals and doing little to advance a worker’s access to justice.”
Many workers believed some incentive system existed to make case managers refuse to give them benefits. Patterson found that such incentives once existed, but they ended for unionized staff in 2013 and “for most management staff and executives by 2014.” Thereafter, ten percent of the VPs and CEO’s salary was held back if 9 corporate Key Performance Indicators (KPI) weren’t met. That wasn’t stopped until October 1, 2018. Yet, as the following paragraphs demonstrate management still puts undue pressure on case managers to meet arbitrary performance goals.
Patterson reports, “Many felt that seriously injured workers were pre-maturely ‘plateaued’ and forced back to work, only to experience reinjury or further disability.” She said sometimes that happened even when “very clear medical evidence on file” showed it shouldn’t. Those unable to return were “forced to wait 6 to 18 months for the appeal system to correct a decision.”
Part of the reason for that is that the RTW (return-to-work) is one of 10 KPI. In 2018, 81.2 percent of workers returned to work in 26 weeks, but the goal was 83 percent by 2020. As soon as the designation of plateauing was made, the statistic was satisfied, even if the employee did not truly return to work.
Patterson said, “I understand that front-line workers receive increased scrutiny from managers and senior leadership as TWL claims approached the RTW target dates in CMS and many expressed deep concern about the pressure that they received to issue ‘plateau’ decisions in serious cases as the worker’s claim reached CMS milestones. Claims which went beyond this date were intensely watched so as not to exceed 240 days.”
“Claim suppression” is also a problem. Here, employers discourage workers from filing claims or retaliate against workers who do. Although this cannot be done against workers who complain about safety issues, there is nothing preventing such measures against workers who make compensation claims. Workers’ Compensation Appeal Tribunal (WCAT) Decision #2015-03765 looked at a case where a worker was fired for filing a claim. WCAT decided the worker had no protection and stated, “…this result may well be the result of an error or oversight in legislative drafting.”
BC uses a system for assessing partial disability that all other jurisdictions abandoned years ago. It is also the only province that does “not give injured workers a statutory right to return to work after an injury or a re-employment duty on employers.” Instead, the Act leaves this to the discretion of the Board. Patterson says a “duty to accommodate” must be explicitly legislated.
Changes in 2002 introduced “deeming,” whereby the Board decides although a worker may not be able to return to their old job, they could find another “suitable and reasonably available” role in the company. The catch is that “’deeming’ permits the assumption of employment when in practice injured workers have not secured any employment.”
Deeming reduced vocational rehabilitation (VR) benefits from $130 million in 2002 to just $1.5 million in 2005. Court decisions showed WorkSafe BC wasn’t properly looking at evidence. Since then, VR benefits have rebounded to $100 million annually, which is still less than they were almost 20 years ago. The report offers ideas to improve this.
Overall, Patterson has a four-point solution. One, the Workers Compensation Act should include a Preamble and Statement of Purpose to reorient the organization to supporting all injured workers. Two, the WorkSafe BC Board must show more respect and better communicate with all stakeholders. Three, the Act should be changed to require decisions to be made on the ‘merits and justice’ of each case. Four, the Board Medical Advisors would not be involved in adjudicating cases.
Patterson wants a Fair Practices Commission appointed to monitor progress and report annually to the minister responsible. May the government follow through.
Lee Harding is a Research Associate for the Frontier Centre for Public Policy.
Photo by Rawpixel.