CIWAA is pleased to see that the recommendations of the review panel have addressed some issues of great importance to injured workers. The panel heard from many injured workers and their allies and advocates of the “culture of denial” at the WCB. We are pleased to see that the panel calls for changes to put the needs of the injured worker at the centre. These include: elimination of incentives to close files and declare workers ready to return to work; ending secret arbitrary limits on the treatment workers receive; and ending the practice of returning “surpluses” to employers.
The panel has made a number of recommendations which address the improper use of medical consultants and independent medical examiners by the WCB. The recommendations to uphold the right of injured workers to choose their health care providers and, where an independent medical examination is required, to select the physician from a roster are very positive. We do however raise a concern that the Fair Practices Office, Medical Panel Office and Appeals Commission must function independently. The appointment of a Medical Panel Commissioner must not be subject to political patronage as has been the case in the past. We also support the recommendations to put in place a process for a worker to apply for continued benefits while an appeal is in process, and for continuation of medical benefits by employers.
The recommendations of the panel address the fraudulent deeming practices of the WCB, in particular the way in which WCB declares workers capable of working full-time at a phantom job such as a parking lot attendant or store greeter, irrespective of the workers’ skills, experience, education and physical limitations and the existence and availability of such work. To add insult to injury, WCB then increases the imaginary wage for this phantom job every year until workers are left with a pittance or often no benefits at all.
The recommendations are a good beginning, but in order to protect the rights of injured workers, deeming must be used only when documented evidence exists that a worker has refused a legitimate job offer for appropriate work. The job must be available and suitable for the worker’s skills, education and experience. The WCB must support injured workers in their efforts to obtain real work, recognizing the reluctance of employers to hire injured workers and the real difficulties faced in finding work. The reluctance of employers to hire injured workers must be recognized, and compensation continued until workers have found suitable work. A “deemed” wage must not only be based on verifiable information as proposed by the panel and established annually, not years into the future. All workers now deemed should be able to have their case re-opened including access to appeal.
The following areas are either missing are missing from the report and should be included in new legislation and policy.
1. Justice for Injured Workers now without benefits and often living in extreme poverty. The report details many ways in which workers are unjustly denied benefits, but makes no recommendations for reparations and to address the ongoing injustices.
The panel recognized that the review and appeal process is daunting for injured workers, especially those who do not have a union at their workplace or collective to support them. Injured workers living in poverty may have abandoned their claim, missed a deadline, or failed to assemble the evidence they needed to counter the “medical opinions” of WCB-retained “paper doctors” who never saw or treated them.
Recognition of the failure of the current WCB system to uphold the rights of injured workers requires that injured workers whose claims have been unjustly denied have access to review and appeal. All denied claims of injured workers where the decision was based on the opinion of WCB paid physicians, medical consultants and Medical Panels which contradicted the clinical observation and findings, ongoing direct examinations and supporting medical evidence of treating physicians and/ or health care providers must be reopened on request. As well, if the worker now has evidence or medical opinion which was not previously presented at the time of adjudication, this evidence should be considered and not rejected on strict legal grounds, e.g. time limits or lack of “new evidence.”
3. Claim suppression: Employers must not be permitted to engage in claim suppression with impunity and strong penalties against employers should be in place. All systems which encourage employers to suppress claims must be ended.
4. Non-economic loss payments should reflect the real impact of a disability on a worker’s life outside the workplace. Current payments show how little value is placed on the life of a worker. To provide some examples of how profound changes to a worker’s life are valued: a worker who becomes legally blind in both eyes would be eligible for a NELP of $28,800; complete immobility of a knee – $22,500; hearing loss – from $360 – $4,500 (and no, $360 is not a typo) and infertility – $4,500. The maximum for a worker who is totally disabled (e.g. paralysis of at least two limbs, profound brain injury, loss of both hands) is about $90,000.
5. Medical Panels. The decision of a Medical Panel is considered final and not subject to any form of appeal. This is a denial of natural justice. For example, new information could show that the Medical Panel erred. Therefore decisions rendered by Medical Panels should be subject to appeal.
6. Pre-existing conditions: The WCB declares that normal aging constitutes a “pre-existing condition” – a blatant form of age discrimination. Even when a worker has not previously been diagnosed or treated by a physician for this “condition”, and was able to perform their job before the injury but can no longer do so, WCB declares a “pre-existing condition.” WCB then limits benefits to a period of recovery from an “exacerbation of the pre-existing condition.” WCB should recognize a pre-existing disability or impairment, not a pre-existing condition.
7. The Fair Practices Office must include a consultative role for injured workers through their organizations.