15 June 2016
Dear Ms. Norrie, Mr. Carpenter and Ms. Cunliffe,
Thank you for the opportunity to make a submission regarding Alberta’s workers’ compensation system. I have numbered and sequenced my comments such that they correspond to the questions in the WCB Review Workbook.
2. Presumptive Status for Occupational Diseases
Alberta’s list of injuries, illnesses, and disease processes that are granted presumptive status contains significant omissions and the WCB lacks a regular and transparent process to review this list. A biennial and public review of Schedule B of the Workers’ Compensation Regulation by a tripartite review panel would remedy this issue.
Examining other jurisdictions’ presumptive status lists suggests the following injuries, diseases, and diseases processes should be considered for immediate inclusion in Schedule B:
- Asbestos-related diseases, including lung cancer in the absence of asbestosis.
- Esophageal, breast and ovarian cancer in firefighters.
- Hearing loss.
- Musculo-skeletal injuries associated with repetitive motion.
- Occupational asthma.
- Operational stress injuries in first responders, correctional, health-care and social service workers.
- Post-Traumatic Stress Disorder for all workers.
- Plantar fasciitis for those who spend significant amounts of time standing or walking on hard surfaces.
- Temperature-induced injury.
3. Psychological Injuries
Chronic onset psychological injuries have often been deemed uncompensable or subjected to very stringent tests of compensability. The reluctance of WCBs (excepting Quebec) to compensate chronic onset psychological injuries reflects:
- a belief that psychological injuries are caused (at least in part) by factors inherent to the worker; and
- a fear that workers may file false psychological injury claims to undermine employer authority in the workplaces.
Subjecting workers suffering from chronic onset psychological injuries to onerous tests of compensability (such as those set out in Policy 03-01, Part 2, Application 6, Question 11) is inconsistent with the purpose of workers’ compensation (i.e., providing no fault injury compensation). It also facilitates a cost transfer from the workers’ compensation system to the worker and the public health system.
Revising the WCB’s policy to find chronic onset psychological injuries compensable when (1) there is a confirmed DSM diagnosis and an objective confirmation of events and utilizing (2) the but-for standard in assessing whether the injury arose and occurred is much more consistent with the purpose of workers’ compensation. It may also be necessary to adjust claims management process and provide additional staff training that recognizes the unique nature of these injuries.
7. Physician and Health Care Providers Interactions with the WCB
Workers appealing occupational disease claim decisions often require medical opinions from occupational heath specialists. Alberta-based specialists typically also have contractual relationships with the WCB to provide services. Recently, I’m told that the WCB has inserted terms in these contracts prohibiting occupational health specialists (who are economically reliant on the WCB) from providing injured workers and their advocates with medical opinions.
Workers are now required to seek medical opinions from specialists outside of Alberta, which can be very expensive. This prohibition is unfair because it interferes with the ability of injured workers to successfully appeal decisions (and thus receive compensation). The WCB should release occupational health specialists from this provision of all current contracts and eliminate this provision from future contracts.
12. Re-employment Obligations
Injured workers (especially those with disabilities) often find it difficult to find post-injury employment. The Workers’ Compensation Act contains no requirement for employers to re-employ workers who have been injured. Workers may have remedy via the Human Rights Commission but the complaint process is slow and uncertain. While pursuing such a complaint, workers will likely see their wage-loss benefits reduced or terminated via deeming. This can leave workers financially destitute.
Sections 41 and 86 of Ontario’s Workplace Safety and Insurance Act require employers to re-employ injured workers who are ready to return to work if (1) the worker worked for the employer for at least one year prior to the injury, and (2) if the employer employs more than 20 workers (slightly different rules apply in the construction industry). If an employer refuses, wage-loss benefits are continued and charged against the employer’s account. This arrangement provides workers with immediate and meaningful financial assistance, eliminates the economic incentive for employers to not accommodate injured workers, and ought to included in Alberta’s Workers’ Compensation Act.
16. Limits on Insurable Earnings and Wage Replacement Rate
Alberta limited the maximum insurable earnings of a worker to $95,300 in 2015 (this amount is adjusted annually). The maximum serves as a cap on wage-loss benefits (which are paid out at 90% of net earnings up to the maximum insurable earnings) and employer premiums (which are calculated based upon gross earnings up to the maximum insurable earnings cap).
What this means is that the approximately 500,000 Alberta workers whose annual incomes are greater than $95,300 are not eligible to have the entirety of their income considered in the calculation of any wage-loss benefits they are due. In effect, Alberta’s cap transfers a portion of injury costs from employers to workers in the form of uncompensated wage-loss. By contrast, Manitoba places no limit on workers’ earnings for the purpose of calculating wage-loss benefits.
The cap also causes (likely unintended) knock on effects for workers on modified work. For example, workers whose pre-injury earnings were above the cap may be offered modified work at a wage rate that equals the cap. The result is that these workers will be working full-time for much lower wages than before the injury.
There is no clear rationale for a maximum insurable earnings cap and the cap interferes with the basic purpose of workers’ compensation (i.e., compensating workers for wage losses). Consequently, Alberta should eliminate the maximum insurable earnings cap and calculate wage-loss benefits and employer premiums based upon workers’ full gross income.
Similarly, Alberta compensates wage-loss at 90% of net earnings. By compensating wage loss at less than 100%, the WCB is again transferring a portion of injury costs from employers to workers in the form of uncompensated wage-loss. There is no compelling argument for fractional wage-loss compensation and Alberta should compensate workers for 100% of net earnings for any wage loss.
19. Deemed Earnings
When the WCB believes a worker is capable of returning to work but the worker has not been able to secure employment, the WCB estimates the expected earnings of the worker and reduce the worker’s wage-loss benefit by this amount.
12. Re-employment Obligations
Injured workers (especially those with disabilities) often find it difficult to find post-injury employment. The Workers’ Compensation Act contains no requirement for employers to re-employ workers who have been injured. Workers may have remedy via the Human Rights Commission but the complaint process is slow and uncertain. While pursuing such a complaint, workers will likely see their wage-loss benefits reduced or terminated via deeming. This can leave workers financially destitute.
Sections 41 and 86 of Ontario’s Workplace Safety and Insurance Act require employers to re-employ injured workers who are ready to return to work if (1) the worker worked for the employer for at least one year prior to the injury, and (2) if the employer employs more than 20 workers (slightly different rules apply in the construction industry). If an employer refuses, wage-loss benefits are continued and charged against the employer’s account. This arrangement provides workers with immediate and meaningful financial assistance, eliminates the economic incentive for employers to not accommodate injured workers, and ought to included in Alberta’s Workers’ Compensation Act.
16. Limits on Insurable Earnings and Wage Replacement Rate
Alberta limited the maximum insurable earnings of a worker to $95,300 in 2015 (this amount is adjusted annually). The maximum serves as a cap on wage-loss benefits (which are paid out at 90% of net earnings up to the maximum insurable earnings) and employer premiums (which are calculated based upon gross earnings up to the maximum insurable earnings cap).
What this means is that the approximately 500,000 Alberta workers whose annual incomes are greater than $95,300 are not eligible to have the entirety of their income considered in the calculation of any wage-loss benefits they are due. In effect, Alberta’s cap transfers a portion of injury costs from employers to workers in the form of uncompensated wage-loss. By contrast, Manitoba places no limit on workers’ earnings for the purpose of calculating wage-loss benefits.
The cap also causes (likely unintended) knock on effects for workers on modified work. For example, workers whose pre-injury earnings were above the cap may be offered modified work at a wage rate that equals the cap. The result is that these workers will be working full-time for much lower wages than before the injury.
There is no clear rationale for a maximum insurable earnings cap and the cap interferes with the basic purpose of workers’ compensation (i.e., compensating workers for wage losses). Consequently, Alberta should eliminate the maximum insurable earnings cap and calculate wage-loss benefits and employer premiums based upon workers’ full gross income.
Similarly, Alberta compensates wage-loss at 90% of net earnings. By compensating wage loss at less than 100%, the WCB is again transferring a portion of injury costs from employers to workers in the form of uncompensated wage-loss. There is no compelling argument for fractional wage-loss compensation and Alberta should compensate workers for 100% of net earnings for any wage loss.
19. Deemed Earnings
When the WCB believes a worker is capable of returning to work but the worker has not been able to secure employment, the WCB estimates the expected earnings of the worker and reduce the worker’s wage-loss benefit by this amount.
This process of deeming a worker to be earning an income is profoundly unfair. Deeming ignores how economic factors and systemic discrimination can impair an injured (and sometimes disabled) worker’s ability to find employment. Indeed, workers’ wages can be deemed even if the worker is unable to secure a job interview or even find a job opening. Worker advocates report the WCB routinely over-estimates the wages available to workers. For example, a worker with a grade 10 education and no computer skills was deemed capable of earning $75,800 per year as a front desk clerk at a hotel.
Deeming transfers a portion of injury costs from employers to workers in the form of uncompensated wage-loss. While the WCB may need some mechanism by which to address occasional instances of malingering, the routine use of deeming orders is contrary to the basic purpose of workers’ compensation. The WCB’s rationale for deeming (i.e., the WCB is responsible to return injured workers to employability, not employment) ignores that injured workers face systemic barriers to gaining employment. Deeming should be reserved for cases where the WCB can clearly demonstrate a worker is malingering.
21. Other Comments on Benefits
Wage-loss compensation is paid on net earnings. Employer-paid pension and extended health benefits are a part of some workers’ overall compensation package but are excluded from the wage-loss compensation. Workers who receive wage-loss compensation for an extended period can be profoundly affected by lost pension and/or reduced health benefit coverage or entitlements.
This exclusion sits uncomfortably with the purpose of workers’ compensation (i.e., to compensate losses) and disadvantages primarily unionized workers who have traded salary for benefit packages at the bargaining table. The Workers’ Compensation Regulation should be amended to include employer-paid pension and extended health benefits on the calculation of net earnings.
30. Other Comments on Appeals
Alberta unusually allows the WCB to make representations to the Appeal Commission during appeals. Employers and the WCB typically both seek to uphold the WCB’s decision during appeals. The result is the potential for a “ganging up” on the injured worker in appeals hearings, with both the employer and the WCB being more likely to have experienced representation and better access to information than the worker.
The rationale for WCB participation is to provide input on the meaning of WCB policies, the Act and Regulations (which the Appeal Commission is bound by). There is no need for the WCB to make representations to the Appeal Commission during these hearings. If, in the view of the WCB, the Appeal Commission errs in its interpretation, the WCB can file of a judicial review of the decision. Striking the requirement in Section 13.2(6) of the Workers’ Compensation Act to hear representations from the WCB would result in a fairer hearing process.
33. Performance Measures
WCB employees (and possibly contractors) have received incentives (e.g., performance bonuses) based upon performance measures (e.g., claim duration length rates, return-to-work targets). Incentivizing WCB employees and contractors to minimize claim costs aligns the personal financial interests of WCB staff with employers’ interests (under experience rating, see Question 42 below) creates the potential to skew WCB decision making and thereby negatively affecting the ability of injured workers to receive the full amount of compensation they are due. Discontinuing employee incentives will restore both the fact and appearance of unbiased claims management.
42. Experience Ratings and Premium Adjustments
Alberta’s experience rating system provides employer premium discounts and surcharges of up to 40% (there are variations by employer size) based upon employers’ claim costs. Employers may also be eligible for additional discounts of up to 20% under the Partners in Injury Reduction (PIR) program. Overall, these programs were budgeted to operate at a net loss of $173.3 million in 2014.
The academic evidence suggests that experience rating is not as effective as OHS enforcement at making workplaces safer. Presently, there is no evidence Alberta’s experience rating program makes workplaces safer. There is evidence (most recently from Manitoba) that experience rating incentivizes illegitimate claims management behaviour by employers that negatively affects injured workers (e.g., phony and demeaning return-to-work arrangements, claims suppression). This dynamic undermines workers’ access to the compensation they are due and may impede their recovery.
If Alberta discontinued these programs, employers would have a much smaller incentive to engage in claims suppression (thereby reducing the need to police this issue). Discontinuing these programs would also free up approximately $175 millions that could be used enhance OHS education and enforcement in Alberta (more than quadrupling the current enforcement budget).
53. Other Comments
Eliminating Excluded Industries
Approximately 8% of Alberta workers have no access to workers’ compensation benefits because they work in industries excluded from the ambit of the Act by Schedule A of the Workers’ Compensation Regulation. Alberta has the longest list of exempted industries in Canada.
There is no compelling explanation for the exclusion of workers in particular industries. Having excluded industries undermines the ability of injured workers to receive compensation and shifts significant costs onto the public health care system. Eliminating all exclusions from Schedule A would extend workers’ compensation benefits to approximately 195,000 additional Alberta workers.
Protective Leave for Pregnant and Nursing Women
There are approximately 50,000 pregnancies in Alberta each year. Pregnant and nursing women face unique physical, biological and chemical workplace health hazards. Alberta’s Occupational Health and Safety Act requires workers to refuse unsafe work but, in practice, few workers refuse unsafe work for fear of job loss.
Alberta’s Human Rights Act requires employers to accommodate pregnant and breastfeeding workers to the point of undue hardship. Workers who are not accommodated can complain, but such complaints take months and years to resolve. During this time, workers who are denied accommodation may be without financial support.
Quebec provides pregnant or breastfeeding women who work in conditions that threaten their health or the health of their unborn or breastfeeding children (and who can produce a medical certificate to substantiate these concerns) with access to (1) immediate re-assignment, or (2) protective leave funded by the La Commission de la santé et de la sécurité du travail (i.e., the WCB).
Alberta’s current health and safety protections for pregnant and breast-feeding women are inadequate. Providing pregnant and breast-feeding workers with wage-loss benefits should their employer refuse to address workplace hazards will make workplaces safer for this uniquely vulnerable group. The cost of any such leaves can be recouped from the employer via a special workers’ compensation levy.
I would be pleased to provide additional information or commentary if that would be useful to the panel. I can be contacted by 780 454-9881 or barnetso@athabascau.ca.
Sincerely,
Dr. Bob Barnetson
Professor of Labour Relations
Athabasca University
Deeming transfers a portion of injury costs from employers to workers in the form of uncompensated wage-loss. While the WCB may need some mechanism by which to address occasional instances of malingering, the routine use of deeming orders is contrary to the basic purpose of workers’ compensation. The WCB’s rationale for deeming (i.e., the WCB is responsible to return injured workers to employability, not employment) ignores that injured workers face systemic barriers to gaining employment. Deeming should be reserved for cases where the WCB can clearly demonstrate a worker is malingering.
21. Other Comments on Benefits
Wage-loss compensation is paid on net earnings. Employer-paid pension and extended health benefits are a part of some workers’ overall compensation package but are excluded from the wage-loss compensation. Workers who receive wage-loss compensation for an extended period can be profoundly affected by lost pension and/or reduced health benefit coverage or entitlements.
This exclusion sits uncomfortably with the purpose of workers’ compensation (i.e., to compensate losses) and disadvantages primarily unionized workers who have traded salary for benefit packages at the bargaining table. The Workers’ Compensation Regulation should be amended to include employer-paid pension and extended health benefits on the calculation of net earnings.
30. Other Comments on Appeals
Alberta unusually allows the WCB to make representations to the Appeal Commission during appeals. Employers and the WCB typically both seek to uphold the WCB’s decision during appeals. The result is the potential for a “ganging up” on the injured worker in appeals hearings, with both the employer and the WCB being more likely to have experienced representation and better access to information than the worker.
The rationale for WCB participation is to provide input on the meaning of WCB policies, the Act and Regulations (which the Appeal Commission is bound by). There is no need for the WCB to make representations to the Appeal Commission during these hearings. If, in the view of the WCB, the Appeal Commission errs in its interpretation, the WCB can file of a judicial review of the decision. Striking the requirement in Section 13.2(6) of the Workers’ Compensation Act to hear representations from the WCB would result in a fairer hearing process.
33. Performance Measures
WCB employees (and possibly contractors) have received incentives (e.g., performance bonuses) based upon performance measures (e.g., claim duration length rates, return-to-work targets). Incentivizing WCB employees and contractors to minimize claim costs aligns the personal financial interests of WCB staff with employers’ interests (under experience rating, see Question 42 below) creates the potential to skew WCB decision making and thereby negatively affecting the ability of injured workers to receive the full amount of compensation they are due. Discontinuing employee incentives will restore both the fact and appearance of unbiased claims management.
42. Experience Ratings and Premium Adjustments
Alberta’s experience rating system provides employer premium discounts and surcharges of up to 40% (there are variations by employer size) based upon employers’ claim costs. Employers may also be eligible for additional discounts of up to 20% under the Partners in Injury Reduction (PIR) program. Overall, these programs were budgeted to operate at a net loss of $173.3 million in 2014.
The academic evidence suggests that experience rating is not as effective as OHS enforcement at making workplaces safer. Presently, there is no evidence Alberta’s experience rating program makes workplaces safer. There is evidence (most recently from Manitoba) that experience rating incentivizes illegitimate claims management behaviour by employers that negatively affects injured workers (e.g., phony and demeaning return-to-work arrangements, claims suppression). This dynamic undermines workers’ access to the compensation they are due and may impede their recovery.
If Alberta discontinued these programs, employers would have a much smaller incentive to engage in claims suppression (thereby reducing the need to police this issue). Discontinuing these programs would also free up approximately $175 millions that could be used enhance OHS education and enforcement in Alberta (more than quadrupling the current enforcement budget).
53. Other Comments
Eliminating Excluded Industries
Approximately 8% of Alberta workers have no access to workers’ compensation benefits because they work in industries excluded from the ambit of the Act by Schedule A of the Workers’ Compensation Regulation. Alberta has the longest list of exempted industries in Canada.
There is no compelling explanation for the exclusion of workers in particular industries. Having excluded industries undermines the ability of injured workers to receive compensation and shifts significant costs onto the public health care system. Eliminating all exclusions from Schedule A would extend workers’ compensation benefits to approximately 195,000 additional Alberta workers.
Protective Leave for Pregnant and Nursing Women
There are approximately 50,000 pregnancies in Alberta each year. Pregnant and nursing women face unique physical, biological and chemical workplace health hazards. Alberta’s Occupational Health and Safety Act requires workers to refuse unsafe work but, in practice, few workers refuse unsafe work for fear of job loss.
Alberta’s Human Rights Act requires employers to accommodate pregnant and breastfeeding workers to the point of undue hardship. Workers who are not accommodated can complain, but such complaints take months and years to resolve. During this time, workers who are denied accommodation may be without financial support.
Quebec provides pregnant or breastfeeding women who work in conditions that threaten their health or the health of their unborn or breastfeeding children (and who can produce a medical certificate to substantiate these concerns) with access to (1) immediate re-assignment, or (2) protective leave funded by the La Commission de la santé et de la sécurité du travail (i.e., the WCB).
Alberta’s current health and safety protections for pregnant and breast-feeding women are inadequate. Providing pregnant and breast-feeding workers with wage-loss benefits should their employer refuse to address workplace hazards will make workplaces safer for this uniquely vulnerable group. The cost of any such leaves can be recouped from the employer via a special workers’ compensation levy.
I would be pleased to provide additional information or commentary if that would be useful to the panel. I can be contacted by 780 454-9881 or barnetso@athabascau.ca.
Sincerely,
Dr. Bob Barnetson
Professor of Labour Relations
Athabasca University
2 comments:
I read through the entire thing and as a student, I was truly intrigued, and often agreed with your points. However, my inner-doubt peeks out and questions whether the WCB will even read it (not saying it's too long, honest). I know it's my distrust of yet another government-type entity, but part of me wonders if this is another 'let's get outside input but not really use any of it' call for opinions.
I absolutely believe it's necessary for change to happen in the WCB, I hope they implement at least half of your suggestions as then we'd have a board actually aiding injured workers.
Certainly, in the past I've witnessed what I think of as consultaganda (meaningless consultations designed to legitimize pre-determined conclusion). Given the change in government and the composition of the panel, I'm prepared to wait and see what happens. But your skepticism is likely well founded in most cases!
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