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How
workers
compensation
is SUPPOSED to work:
|
How
workers
compensation
ACTUALLY works: |
| 1.) employers pay into the fund |
1.) employers pay into the fund |
| 2.) employers are protected from lawsuit when a worker gets
injured |
2.) employers are protected from lawsuit when a worker gets
injured |
| 3.) workers give up their right to sue employers |
3.) workers give up their right to sue employers |
| 4.) workers get prompt, fair compensation for any workplace
injuries |
4.) workers get forced into an
abusive, adversarial system that does anything it can to avoid paying
compensation, especially for long term claims. Many face poverty, bankruptcy,
loss of homes, divorces and even
suicide. |
One injured
worker described it like this:
"Workers
Compensation neither WORKS nor COMPENSATES." 1.) While
workers compensation agencies claim an above 80% satisfaction rate, the
reality is that the more seriously injured workers are being rejected by
workers compensation boards across Canada because their claims are more
expensive. These seriously injured Canadians and their families end up
bankrupt, on welfare and some even become so desperate that they commit
suicide.
The 2001 Saskatchewan Committee of Review
stated:
"The Board reports high, often 80% or 90%,
aggregate satisfaction with service. There is widespread belief that the published survey results mask much lower levels of
satisfaction with delivery of service in more complex situations.
The surveys do not include persons whose claims are
rejected. The survey response rates are quite low. The sample size
is usually low - only 2,000 in 1998. Only new claims
reported and accepted are surveyed.
Submissions and statements to the Committee have convinced us
that service failures are more frequent than what is disclosed in the surveys
heralded by the Board."
Saskatchewan Committee of Review 2001
2.)
Employers are concerned about the cost of workers compensation systems and
whether they are getting
value
for their money.
3.) Injured workers, whose cases have been
mishandled, cannot sue employers nor do they have the ability to sue the
workers compensation boards (due both to lack of funds as well as the immunity
from lawsuit that the WCB enjoys). This is a perversion of natural justice and
violates the "Rule of Law" under which all Canadian society is based.
One article, written by an injured worker's spouse, discusses the
issues:
(Article publishedJanuary 10, 2005 in "Straight Goods"
http://www.straightgoods.com/Front05/050111.php )
WCBs
failing injured workers
Workers'
Compensation was supposed to be a straightforward, no-fault plan, but, for
some, it has become a frustrating maze of denials. Will Workers
Compensation protect you and your income if you have an injury at work? For
up to five percent of workers who have permanent injuries that answer is no.
They have been denied benefits from Workers Compensation Boards and have no
recourse and no formal advocate to act on their behalf.
Why are
permanently disabled workers more likely to be denied benefits by WCBs?
Many believe the WCB system is focused on cost control and thus has a bias to
deny rather than accept claims. This bias is clearly to the benefit of the
employers who pay the premiums, and not only does it cost some injured workers
income support, it just transfers the cost to governments and hospitals.
The history of Workers Compensation in Canada begins in 1910. The
worker's compensation board was conceived by then Chief Justice of Ontario, Sir
William Meredith. In his report to the provincial Conservative party he
outlined what are now commonly referred to as the Meredith Principles.
They included:
- No Fault Compensation - Nobody gets sued and
workplace injuries are compensated regardless of fault.
- Collective
Liability - The total cost of the compensation system is shared by all
employers.
- Security of Payment - A fund is established to
guarantee payments, and injured workers are assured of prompt compensation and
future benefits.
- Exclusive Jurisdiction - The Board makes all the
decisions on compensation claims and can judge each case on its own merits
without regard to legal precedent.
- Independent Board - The
governing board is both autonomous and non-political and financially
independent.
From that time, WCBs have taken and manipulated those
principles so that it is hard to see what is a principle and what is simply
a guideline. Reviews and audits have been launched in several jurisdictions and
more are expected. Some advocates for injured workers also claim that there is
a culture within WCB management of medical care that practices unlimited
authority over the injured worker. Some call it a third tier medical system
that permits excessive involvement of Boards and the employers in determining
the workers' medical care.
In addition the Board and the employers
goals seem to be to minimize the costs of injured workers' claims and to
maximize the corporate profits. Most especially outrageous are the Board's own
medical staff and adjudicators, who often act as medically trained doctors,
making ultimate medical decisions (read denied) without having seen the injured
worker. One ploy to deny a workers' claim is the infamous "pre-existing
condition". Unless you can prove that you weren't injured before an accident,
you may be denied a claim afterwards.
* *
*
One
doctor testified that the local WCB stated in writing that payment of her fee
depended on her delivering the report the WCB wanted.
* *
* There are some courageous doctors in Canada who have seen the
abuses within WCBs and have come forward with their complaints. One brave
doctor, Doctor Maida Follini, testified before a 1998 committee on Nova
Scotia's WCB Act,
"I experienced some pressure from the WCB in
relation to one of my cases. After submitting my report, I received a letter
from Dr. Kevin A. Bourke, Medical Adviser, Central North Shore, informing me
that he would not process the invoice for my fee unless I edited my report to
conform to his desires. Fortunately, unbeknownst to him, I had already received
my fee. I, of course, did not edit my report. But I did inform him of the
rationale for the recommendations that I had made. I might say that I was
somewhat affronted that a WCB staff member would request that an independent
professional change her report to conform to the board's wishes and in
particular, threaten to withhold payment."
Needless to say, Doctor
Follini didn't see many more WCB patients.
The good news is that
injured workers support groups are popping up on the web daily. Through
these websites many doctors and adjudicators names are being printed as people
NOT to see, to help protect the injured worker. They warn injured workers to
keep their own medical records and copies of transcripts in case they are
needed in the future but somehow "disappear" from their WCB files.
So why should you care if an injured worker doesn't get their claim
processed by WCB? You should care because it will cost you money. That's
because a seriously injured worker is not likely to work again, and some other
agency of Government that gobbles up your taxes is going to pay for their
treatment, medication, and medical expenses. The WCBs across the country are
sitting on billions of dollars in assets. The Ontario Board alone has assets of
$11 billion. Why are injured workers being sent away when they are sitting on
this cash windfall? Maybe somebody has plans to spend this money somewhere
else, or maybe even give it back to employers?
Injured workers
refer to the costs of workers losing their Compensation benefits as "collateral
damage." The monetary cost may be bad enough but the collateral damage done
to injured workers can only be described as vile and inhumane. One injured
worker did his own study of what happens to workers with permanent injuries who
get denied Workers Compensation. He discovered ghastly and shocking statistics:
between 1999 and 2002 twelve of these workers
took their own life due to pain arising from a work-related
injury.
These workers cannot sue their employers; they cannot
complain to the Human Rights Commission, they are not protected under the
Canada Health Act. They can be misdiagnosed and mistreated. They are even
discarded by their unions for not being able to keep up with the dues. There is
a lot that needs to be done to improve the Workers Compensation system in this
country, and all of us have a role to play to make that happen. Just because
you get injured on the job doesn't mean that you have to suffer for the rest of
your life.
D.M. Boyle is a counselor and activist who is committed
to fighting the injustices committed by WCBs across Canada.
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"Over the years . . . for whatever reason –
incompetence, mismanagement, bungling, deceit, apathy, political interference,
expediency or indifference – the program lost its way . . . If asked to
start from scratch, no one would design or build the program as it exists
today."
Nova Scotia WCB Review Committee - 2002 |
Why Don't the Provinces Fix
This?
CONFLICT OF INTEREST: Provinces are in a potential
conflict of interest situation regarding workers compensation in several
areas:
a.) provinces need to attract business investment by keeping WCB
fees low
b.) provinces gain political support by keeping WCB fees
low
c.) provinces gain political support by keeping workplace injury
stats low
d.) the provincial government as an employer (example, health
care) avoids costs to government when workers compensation denies a provincial
employee's compensation
e.) the provincial government as an employer
avoids occupational safety investigations when workers compensation denies a
provincial employee's compensation enabling the province to avoid workplace
safety costs in their provincial workplaces (such as hospitals and schools)
f.) provinces benefit from workers compensation "reserve" or
"investment" funds which are invested in their province (see the Manitoba
Auditor General's report on
conflicts
of interest between the province and WCB investment funds (6).)
g.)
provinces are able to appoint WCB policy-makers and write WCB legislation which
caters to provincial government interests (while eroding injured workers'
rights, and their access to due process and natural justice)
h.)
provinces have allowed WCB to ignore orders of the court and to suppress
information about decisions that were unfavourable to the province’s
position
i.) Provinces download their WCB costs onto other provincial
and federal agencies which has a "collateral damage"
effect on other agencies such as welfare, Canada Pension Plan, the health care
system, other disability programs, charitable agencies, other provinces,
businesses, the education system, etc.
Provinces have repeatedly failed to respond to
requests by injured workers to investigate wrongdoing in the WCB system.
WHY?
Because if they investigated these allegations, the
provinces would have to investigate themselves while in a potential conflict of
interest position.The inability of injured workers to get their legitimate
issues investigated is a violation of natural justice and the Rule of Law upon
which all Canadian society is based.
That is why the CIWS is calling
for a Federal Public Judicial Inquiry into WCB wrongdoing. (see PETITION) |
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