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November 8 2007

WorkSafeBC under fire from MLA, others

NDP MLA Chuck Puchmayr calls for public inquiry into WorkSafeBC - "Puchmayr said that, on average, he gets one case a day where someone's claim has been denied or where someone has found out that they are not getting the compensation they think they deserve."

By Travis Lupick

British Columbia's Opposition labour critic claims it is time to change the legislation that protects workers injured on the job. Spokespeople for WorkSafeBC, the provincial Crown agency that regulates that area, disagree. They claim that B.C.'s system for workers' compensation has improved in recent years.

NDP MLA Chuck Puchmayr (New Westminster) told the Georgia Straight that a law dealing with safety in the workplace is prone to unfairly penalizing those it should protect. He claimed that WorkSafeBC, formerly known as the Workers' Compensation Board, is able to act as "judge and jury" on its own cases. "There is no third party or independent overview," he said.

Puchmayr suggested that a public inquiry might be needed to overhaul WorkSafeBC to the point where it is acting in workers' interest. He argued that the Workers Compensation Act, which WorkSafeBC administers on behalf of the Ministry of Labour and Citizens' Services, is "unfairly skewed against the worker" and requires a "complete overhaul".

Puchmayr took issue with a sentence in the Workers Compensation Act that reads: "Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court."

He interpreted the legislation as stripping WorkSafeBC of any oversight, and argued that the result is fewer approved claims. Puchmayr said that, on average, he gets one case a day where someone's claim has been denied or where someone has found out that they are not getting the compensation they think they deserve.

A spokesperson for the B.C. Ministry of Labour, Linda O'Connor, argued that the Workers Compensation Act (amended in 2002) is beneficial to workers because it outlines a finite appeals process for claims. O'Connor argued that under the previous system, workers could be trapped in appeals processes indefinitely.

According to WorkSafeBC's 2006 annual report [note: 2.6MB PDF doc], the percentage of claims either "disallowed" or "rejected" by the compensation board has increased for three years in a row, from seven percent in 2003 to a 10-year high of 8.2 percent in 2006. In absolute numbers, in 2003, 10,622 B.C workers saw their claims denied; in 2006, that number was 14,181.

Donna Freeman, a spokesperson for WorkSafeBC, told the Straight that the "overwhelming" majority of claims made to WorkSafeBC are approved. She argued that an increase in the number of claims denied was a reflection of stronger decision making. "So fewer decisions are reversed on appeal," she added.

Puchmayr's criticism was echoed by welder Chris Pazik, who had a compensation claim denied by WorkSafeBC and has been tied up in an appeals process ever since.

In April 2003, Pazik said, he was moving a heavy sawhorse across a cement floor when his back gave out. It was "excruciating", he told the Straight. "But it was towards the end of my shift and I was young…so I figured I was probably going to make it through the night." Things didn't feel better in the morning.

Pazik, who was 22 at the time of his injury, said his claim has been denied by the WorkSafeBC claims board, WorkSafeBC's review division, the Workers Compensation appeal tribunal, the claims board again, and the review division for a second time. As the Straight went to press, Pazik said that he was waiting for a second decision from the tribunal.

Yet Pazik maintains that his claim is legitimate. He argued that its original denial was rubber-stamped at each level of the compensation appeals process without fair consideration.

Andy Butterfield, a client-services manager for WorkSafeBC, told the Straight that the reason Pazik's case was taking such a long time to be resolved was that Pazik had repeatedly missed claims-application deadlines. As to why Pazik was going through the appeals process for a second time, Butterfield conceded that a tribunal officer had found that the original review officer for the case had overlooked the "possibility" that one day's wage loss could have been paid. The mistake resulted in an extension of time being granted, a "very unusual sort of thing", Butterfield added.

Addressing Pazik's allegations of his case being rubber-stamped, Butterfield argued that the case was "of course" given due consideration. "WCAT [the appeals tribunal] is in a separate building and totally independent of WorkSafeBC," he said. "So they are 100-percent divorced from the [WorkSafeBC] decision makers."

Local lawyer Monique Pongracic-Speier has represented workers in B.C. for the past five years. She said the level of compensation available to workers now is generally less than it was before the legislative changes of 2002.

"There are certainly instances when the system goes terribly wrong and bad decisions are made," she said. "Perhaps it's time for the legislature to look at revisions to the Workers Compensation Act to ensure that justice is being done on a worker-to-worker basis."

On Monday (October 29), the Straight reported on its Web site that Pongracic-Speier and others have argued that there is a growing need for awareness around workers rights in the province.

Grant McMillan is president of the B.C. Council of Construction Associations. He claimed that as a former employee of WorkSafeBC, he has looked at about 8,000 compensation claims over the past 30 years. It is McMillan's opinion that WorkSafeBC's handling of claims has improved in recent years.

He argued that from 1991 to 2000, under the direction of the NDP, the function of WorkSafeBC strayed to "providing a social-insurance safety net" for anyone who was or claimed to be disabled. "In my view, workers' compensation is now returning to its original purpose, which is to compensate injured workers for wage loss," he said.

Pazik disagreed. "I'm a tradesperson. I went to school, and for me it was an exciting thing," he said. "But once I got into a trade, being a young person working under older people, you are disposable."

Pazik argued that if his experience was any indication, injured workers in B.C. are not guaranteed compensation. "They'll just find somebody else," he said.

Links: WorkSafeBC
MLA Chuck Puchmayr
The Ministry of Labour and Citizens' Services
BC Council of Construction Associations

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