The Ontario Network of Injured Workers Groups (ONIWG) is seeking the help of Premier Doug Ford to force the WSIB to follow the legislation and provide the actual cost of living increase of 4.7% to injured workers as opposed to the 2.7% increase decided on by WSIB. See press release below.
|What does a “fair hearing” mean to you? |
Survey of Injured Workers about Appeal hearing formats
|As we move out of pandemic precautions and back into a face to face world, the tribunals that make major decisions in our lives – workers compensation, human rights, social assistance, evictions, and others – are wondering what format to use for hearings in the future. They have been using written, telephone and video hearings during the pandemic. This has proven to be faster, cheaper and easier than traditional in-person hearings, but is it fair?|
Injured Workers Community Legal Clinic would like to know what injured workers think. What does a “fair hearing” mean for you? We will bring your views to our discussions with WSIB and WSIAT.
Please take 2 minutes and complete this anonymous survey clicking here.
We thank you for your input.
Mobilizing in Ontario: USW release on the addition of Parkinson’s Disease from McIntyre Powder to Schedule 3
ODRA welcomes the Ottawa Professional Fire Fighters’ Association, Seeks action from the Ontario Minister of Labour to change WSIB laws
February 01, 2022 15:54 ET | Source: Occupational Disease Reform Alliance
PETERBOROUGH, Ontario, Feb. 01, 2022 (GLOBE NEWSWIRE) — The Occupational Disease Reform Alliance (ODRA) is pleased to welcome the Ottawa Professional Fire Fighters’ Association IAFF Local 162 as its newest member.
Firefighters face a staggering magnitude and variety of toxic exposures on the job including carcinogens, particulates, chemicals, dusts, fumes, combustibles, and numerous other hazards such as heat stress. Yet when these brave professionals we regard as heroes develop cancers, lung diseases, or other occupational illnesses because of those exposures, far too many of them face denied workers’ compensation claims at the hands of the Ontario Workplace Safety and Insurance Board (WSIB).
“All too frequently these claims are denied by WSIB despite evidence of the multiple toxic exposures these firefighters faced while doing their jobs” expressed IAFF Local 162 President Doug McLennan in a letter of support for ODRA. “We must see WSIB expand the list of presumptions and ensure they are more broadly applicable to all workers”.
ODRA Chair Sue James stated “It is an experience sadly shared by the workers, widows, and family members of the ODRA occupational disease clusters, and we are proud to fight alongside the Ottawa Professional Fire Fighters’ Association for meaningful reform of the WSIB system”.
Justice for victims of Occupational Disease
On January 18, 2022, ODRA members met with Ontario Minister of Labour Monte McNaughton. We presented Minister McNaughton with the lived experiences of our workers and widows that speak to our 4 demands. We provided the Minister with proposals for legislative amendments to the Workplace Safety and Insurance Act that are necessary to give effect to these demands.
(See “Justice for victims of Occupational Disease: An Act to amend the Workplace Safety and Insurance Act”, here).
We eagerly await prompt action on the part of Minister McNaughton and the Government of Ontario to enact these needed legislative changes into law. We cannot continue to wait while workers and their families die waiting.
For more information, contact: Sue James, ODRA Chair email@example.com
To learn more about ODRA: https://ofl.ca/advocacy-groups-odra/
Results from a Freedom of Information request shows that 40 workers in Toronto alone died from COVID-19 they contracted on the job. – By Nora Loreto (December 20, 2021)
The Ontario Minister of Labour has said they will be hiring a new President/CEO of the WSIB as well as a new Chair of the Board of Directors of the WSIB – Read more here.
Alberta Workers Comp and Appeals Commission operate much the same: meaning the workers suffer the same injustice, just Alberta does not have the manpower or backing to talk about it so nobody knows, so nobody cares
Our friend John B put together a nice summary of how bad employers – like Fiera Foods – can kill workers and then receive money back from the WSIB. This is one of the many ways that corporate Canada is taking away the rights of workers – bit by bit.
Temporary Help: A Permanent Shield for Employers to Avoid Consequences
A Temporary Employment Agency (“TEA”) is in the business of supplying labour to other employers. It may have a head office to address human resources issues like payroll but the majority of its employees are not at their employer’s place of business. TEA employees are sent out to the TEA’s clients – the placement employers. Perhaps there’s a holiday rush that requires a few extra people for a short period of time or maybe there’s a special project that requires extra help. Perhaps it is cheaper and financially prudent to get someone else’s employees to do the hard work and get injured.
Workers Compensation and Temporary Employment Agencies
The workers’ compensation system in the Province of Ontario is administered by the Workplace Safety and Insurance Board (“the WSIB”). In the context of workers’ compensation, the TEA has the added benefit of protecting placement employers from higher premiums. Employers in Ontario are assigned a rate group and pay premiums based on their rate group and payroll. That premium rate can go up or down based on claim costs.
If you had jobs that were particularly difficult or were concerned about the safety of your employee (as opposed to someone else’s employee), a placement employer could give that job to a TEA employee. If the TEA employee was injured, the placement employer’s WSIB record would not reflect that accident or the claim costs. That accident, even though it happened at the placement employer while working for the placement employer and the TEA had nothing to do with the accident, would be reflected on the TEA’s WSIB account.
That isn’t to say the placement employer gets off completely free of consequences. The Ministry of Labour, Training, and Skills Development may still charge the placement employer under the Occupational Health and Safety Act. Even if the placement employer pleads guilty to the charge, in the WSIB’s eyes that employer didn’t have an accident.
The TEA acts as cover for the placement employer. For having an accident-free record, the placement employer gets a rebate on their premiums. The placement employer could look like a leader in health and safety when really it injures workers.
Experience Ratings Flaws Exposed
To understand the source of the problem one must first be aware of some relevant background. In 2009, the Auditor-General had expressed concerns with the WSIB’s unfunded liability. The unfunded liability is the amount the WSIB does not have if it had to pay out every existing claim, completely. The Auditor-General was of the opinion that the unfunded liability was too high. This was not an opinion shared by all stakeholders. An example of a common unfunded liability that many people have is a mortgage. Most people don’t have enough money to pay off their entire mortgage.
In 2010, Law Professor Harry Arthurs was retained to study the problem. Although it was limited to addressing the unfunded liability, some stakeholders took the opportunity to address experience rating and its flaws. In his final report, Funding Fairness he addressed the WSIB’s experience rating system. “In my view, the WSIB is confronting something of a moral crisis. It maintains an experience rating system under which some employers have almost certainly been suppressing claims; it has been warned — not only by workers but by consultants and researchers — that abuses are likely occurring. But, despite these warnings, the WSIB has failed to take adequate steps to forestall or punish illegal claims suppression practices.”
He called for a redesign of the system to clearly state the goals of experience rating and a review to make sure those goals are being achieved. As one can imagine, the WSIB’s interpretation of those recommendations was different from worker-side stakeholders’ interpretation of the recommendations.
The Problem Is Documented
The Institute for Work and Health (“IWH”) is an independent not for profit organisation that conducts and shares research to promote, protect, and improve the health and safety of working people. IWH examined the use of TEAs and the way they help placement employers. The research was published in a journal article in 2012.
Putting a price on health and safety (more accidents mean higher premiums) inevitably leads to the situation where placement employers will “game” the system. These “temporary” employees are used in the long term, usually at a lower wage than normal employees. Barring serious accidents that lead to charges, the placement employer does not have to address health and safety concerns because the TEA is the employer. In the experience rating system used by the WSIB, the placement employer is rewarded for being accident free even if the workplace has seen multiple accidents.
One such example can be found in the aforementioned IWH article. The owner of a TEA freely admitted that his employees were being used to protect the placement employer, “We [the TEA] were providing industrial labour… to a client. The client was receiving an award [workers’ compensation] for best health and safety practices. That day I had two people… rolled out the back door in the ambulance. The client kept his health and safety record up high because he outsourced to staffing companies all the risky jobs, all the heaviest lifting, all the jobs that required any type of dangerous work went to a staffing agency. So, his record looked… perfect… The WSIB thought he was great.” To be clear, this relationship is perfectly acceptable in the workers’ compensation system.
Placement employers’ use of TEAs and their employees demonstrated that the experience rating system was flawed. TEAs, who don’t have much of an operation, were expected to be responsible for health and safety when that should be dealt with by the placement employer or the WSIB.
Addressing Accident Responsibility
The Liberal Government at the time introduced, Bill 18, Stronger Workplaces for a Stronger Economy Act, 2014. At first reading, the Bill proposed a radical change, accidents at placement employers would impact the placement employer’s account. However, in committee the government amended that section. It was changed to permit the government to pass a regulation to make placement employers responsible for accidents. According to the Minister of Labour, “Additionally, we originally proposed changes to the Workplace Safety and Insurance Act experience rating system. However, Speaker, a lot of time has passed since this bill was first introduced; it was almost a year ago. It didn’t pass in the last Parliament due to delays. The situation has changed since then. The WSIB is currently itself now undertaking a rate framework review, which also includes a review of the same experience rating system. We expect the WSIB will make decisions regarding these changes just around the same time next year. As a result, it did not make sense to legislate, and then implement, changes to a system that may or may not exist in its current form in the very near future.”
The Government of the day decided to let a problem continue because the system “may or may not exist” in the very near future. Placement employers would continue to use TEA employees as cannon fodder because the system might be fixed eventually. The Minister of Labour expected that the new experience rating system would deal with this issue. To the surprise of no one in the worker community, it did not.
The new risk banding system now in place with the WSIB still permits placement employers to use TEA employees. Contrary to assurances, there are no health and safety provisions in the new system. To date, no regulation has been passed.
In theory, a placement employer’s business could lead to the death of a TEA employee. The way the WSIB system is set up the fatality would not appear on the placement employer’s record. A worst case scenario, a perfectly legal one, that the Government and the WSIB was willing to risk.
Worst Case Reality
As has been covered elsewhere, Fiera Food is an employer in the Province of Ontario that uses TEAs. There have been multiple deaths at their facilities. In such one death, Fiera Foods pled guilty to charges under the Occupational Health and Safety Act.
Thanks to pressure from worker stakeholders, the WSIB does have a policy relating to fatalities, the Fatal Claims Premium Adjustment Policy. According to the policy, the WSIB will withhold any surplus an employer would get if there has been a fatality at their facility. However, thanks to Bill 18 only containing a promise to fix the problem as opposed to actually fixing the problem, Fiera Foods asked for their experience rating rebate – for being a good employer. Notwithstanding the dead worker, Fiera Foods was set to receive a rebate of over $40,000.
Perhaps realising that paying an employer that pled guilty to charges under the Occupational Health and Safety Act a rebate for being a “good” employer is bad optics, the WSIB applied the Fatal Claims Premium Adjustment Policy to Fiera Foods – or at least tried to. Notwithstanding the dead worker, Fiera Foods wanted their money. As is their right, the decision was appealed. In WSIAT Decision No. 1386/20 the Tribunal found that the policy did not apply to the placement employer. As well the legislation made it clear that the responsibility for the claim was that of the TEA.
Refusing to Fix the Problem
Seasoned workers compensation representatives will know that there is a WSIB policy called, “Transfer of Costs”. The policy title tells the story: the WSIB has a policy to transfer claim costs from one employer to another employer. No TEA would ever ask for a transfer – it wouldn’t pay to make their client pay. Even the Panel in WSIAT Decision No. 1386/20 noted the WSIB didn’t even bother to try to address the problem via a Transfer of Costs decision.
Debts to Pay
Thanks to the Auditor-General’s concern for the unfunded liability, the WSIB made aggressive moves to reduce the liability, by cutting expenses by 50% (medical and financial benefits to injured and disabled workers), to the point where the WSIB now has a surplus – if the WSIB paid out all current claims completely, the WSIB would have money left over.
The current government has not directed the WSIB to improve benefits. The current government has not looked for shortcomings in the system that should be addressed. Instead of fixing a problem like the use of TEAs to avoid claim costs, the current government is more interested in giving money back to employers. Bill 27, which passed November 30, 2021, permits the WSIB to give money to employers.
The TEA loophole to avoid claims continues to exist. And companies like Fiera Foods that had multiple fatalities will be getting their share of that three billion dollar surplus.
 Employers in “Schedule 1” to be precise. There are two schedules for employers that must have WSIB coverage. Schedule 1 employers pay premiums and are the vast majority of employers. Schedule 2 employers are largely government related and pay dollar for dollar of claim costs.
 MacEachen E, Lippel K, Saunders R, Kosny A, Mansfield L, Carrasco C, Pugliese D “Workers’ compensation experience-rating rules and the danger to worker’s safety in the temporary work agency sector” 2012 10:1 Policy and Practice in Health and Safety 77-95.
 The Government would fix unequal pay to some degree in 2018.
 Supra, note 5, 83.
 Ontario, Legislative Assembly, Official Reports of Debates (Hansard), 41st Parl, 1st Sess (05 November 2014) https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2014-11-05/hansard#para1188
About the newly formed Occupational Disease Reform Alliance (ODRA): https://cpcml.ca/WF2021/Articles/WO081123.HTM
About the Submission on Bill 27 from IWC: https://cpcml.ca/WF2021/Articles/WO081122.HTM
Bill 27 overview: https://cpcml.ca/WF2021/Articles/WO081121.HTM
Below is an op-ed that ran in the August 20 Toronto Star. It was written by Kathleen Ruff. Many of you may know her as one of the leading advocates for the international banning of asbestos production and use.
Kathleen was highlighting the prevalence of violence faced by healthcare workers in Canada, the vast majority of whom are women as well as many drawn from racialized communities. She was also flagging the release of our book on violence – Code White – Sounding the Alarm on violence against health care workers. It will be released on September 1st at a press conference sponsored by the Ontario Council of Hospital Unions.
The book is based on three studies we published in New Solutions in the last four years. We are acknowledging the important role that Craig Slatin played in helping us shape this research.
I know that the issue of violence in healthcare is a serious issue for American occupational health activists. I hope that this book can be seen as an act of solidarity with healthcare workers around the globe.
Below – after the Toronto Star article – there is a link to the book.
PLEASE NOTE: Not all documents from our Freedom of Information request were released by WSIB, and some documents were redacted (portions blacked out) by WSIB.
FOLDER Tabs 101-200 – This link should provide you with access to a folder containing WSIB-released documents from Tabs 101-200. https://drive.google.com/drive/folders/1CE0xCQzlzNoxPf3sCxwoxJOJFg7SVLGA?usp=sharing
A View from the U.S.
As we know, our workers compensation system in Ontario has been under attack for the past 30 years. Finding ways to cut benefits to injured and disabled workers and cutting costs to employers. We are not alone. Below is the link to a report by the US Department of Labour done about 5 years ago near the end of Obama’s administration.
Take a look at the executive summary and you will see a lot of similarities in the States to what we see happening in Ontario.
Let’s keep up the fight for workers’ rights and look for ways to build our movement.
Read more here.
An interview with Katherine Lippel on the TV show Community Conversations. As you may know, Katherine is a professor at the University of Ottawa and the distinguished research chair in occupational health and safety law. She has been involved for more that 40 years and is a friend to workers and supporter of workers rights.
Does WCB label injured workers to avoid compensating non-organic , non-discernible chronic pain? The Supreme Court of Canada Martin/Laseur 2003 SCC 54, all disabled chronic pain suffers should be treated equal it is their human right. Do you have a complaint for Human Rights?
York University of Toronto conducted a new research on chronic pain “Chronic Pain, Psychopathology, and DSM-5 Somatic Symptom Disorder”.
Please review the article below
The new Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Somatic symptom disorder overpsychologizes people with chronic pain; it has low sensitivity and specificity, and it contributes to misdiagnosis, as well as unnecessary stigma. Adjustment disorder remains the most appropriate, accurate, and acceptable diagnosis for people who are overly concerned about their pain.
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and Chronic Pain
The golden rule: an underlying medical illness or medication side effect has to be ruled out before ever deciding that someone’s symptoms are caused by mental disorder. . . . There are serious risks attached to over-psychologizing somatic symptoms and mislabeling the normal reactions to being sick − especially when the judgments are based on vague wording that can’t possibly lead to reliable diagnosis. DSM-5 as it now stands will add to the suffering of those already burdened with all the cares of having a medical illness.
…2 major criticisms have been levelled against the DSM-5: diagnostic inflation and inadequate field testing. Both appear to apply to the new diagnostic category of SSD. The main criticism of SSD is the high probability of misdiagnosing a medical illness, including chronic pain conditions, as a mental illness. Further, the conditions that qualify for a diagnosis of SSD are extremely variable. They include a highly mixed group of patients with medically unexplained symptoms, medical patients with significant symptoms of emotional distress, patients with typical chronic pain conditions (for example, low-back pain, fibromyalgia, rheumatoid arthritis) and patients with health-related anxiety.
…given the problems with current diagnostic criteria for SSD, noted above, alternative diagnoses have been suggested as appropriate for people with chronic pain; including, psychological factors affecting other medical conditions and adjustment disorder. The distinction between SSD and psychological factors affecting other medical conditions is not clear-cut, especially for people with chronic pain conditions, as both involve a diagnosable medical condition. For SSD, the emphasis is said to be on “maladaptive thoughts, feelings and behavior,” whereas for psychological factors affecting other medical conditions the emphasis in on “the exacerbation of the medical condition.” This distinction seems arbitrary for people with chronic pain, as pain is known to produce worry and worry is known to exacerbate pain. Until the criteria for SSD are appropriately revised, adjustment disorder is a “safer and more accurate” diagnosis when one is needed for someone who is “medically ill or otherwise troubled by puzzling symptoms” Chronic pain is highly comorbid with anxiety and depression.