Part one of a two-part series
by Samantha Ponting
On Jan. 1, 1915, a worker in Kearney, Ontario, employed by a lumber company, suffered a hand injury on the job. He was the first worker to receive benefits under the Workman’s Compensation Act, which came into effect the same day. The Workman’s Compensation Board–now named the Workplace Safety and Insurance Board of Ontario (WSIB) – was established in 1914 to administer benefits to injured workers in Ontario through a system modelled on William Ralph Meredith’s “historic compromise,” whereby workers are denied the right to sue employers in exchange for compensation, benefits, and the facilitation of a timely return to work.
Because workers cannot sue their employers, they depend on the WSIB to administer justice. Is the WSIB living up to this task?
In 2013, 243 workers died of workplace injuries and occupational diseases in Ontario. Tens of thousands more are injured yearly on the job.
Today, the WSIB is funded 100 per cent by employers and is overseen by the Ontario Ministry of Labour. This year, the WSIB is celebrating what it’s calling “a century of serving Ontario.” Yet now more than ever, the WSIB has been the target of widespread criticism for its failure to adequately compensate workers, process claims fairly, accurately assess medical opinion, and facilitate employees’ safe return to work.
The WSIB is theoretically an independent organization. Yet critics argue the WSIB is heavily biased towards employers. The past few decades have seen inadequate premium rates imposed on employers. Workers have seen cuts to compensation and benefits while the board’s management receives bonuses. Perhaps most concerning is the WSIB’s relentless drive to push workers back into the workforce despite the medical assessment of a worker’s injury. The WSIB appears to be more concerned with meeting the labour needs of employers than providing healthcare to workers.
Denying medical expertise
According to the Workplace Safety and Insurance Act, injured workers have a legal right to “necessary, appropriate, and sufficient” healthcare for their work-related injuries.
Many Ontario injured workers receive health coverage under the Ontario Health Insurance Plan (OHIP). However, OHIP does not usually provide coverage for medications, assistive medical devices, physiotherapy, medically-related travel expenses, and mental health.
The WSIB is required to cover these expenses when they are related to a worker’s injury on the job, but the Injured Workers Action for Justice (IWAJ), which advocates for fair compensation from the WSIB, say that the WSIB is steadily reducing benefits related to healthcare. It reports that the WSIB has cut $77 million in healthcare-related spending since 2009.
Jessica Ponting, a community legal worker with the Industrial Accident Victims Group of Ontario, says that almost 20 per cent of the WSIB’s healthcare budget is allocated towards “specialized clinical services,” or WSIB-run assessment centres.
As funds for doctor-recommended treatments are being cut, the WSIB is increasing funding for assessment centres.
The IWAJ claim that these assessment centres are known for predicting early recoveries and can facilitate the denial of claims, as well as a premature return to work.
“They [the WSIB] say benefits are being cut because they are providing healthcare and getting people back to work, which is not true,” says Ponting.
Instead, she says, workers are being sent back to work before they’ve recovered because of predicted recovery dates that often don’t correspond with reality.
She says, “The WSIB ignores reports from family doctors that state that a worker is still injured.”
“These centres can provide useful information, that’s fair, but the WSIB requires them to say when they will predict the worker will recover. In most cases, they meet the worker once and make a prediction. Then the WSIB says they have a relatively comprehensive medical report and they end benefits based on that expected recovery date,” says Ponting.
The painful side of WSIB assessment centres
Daniela, who requested that her last name not be disclosed, is an injured worker and member of IWAJ.
Daniela says, “Many workers come to me and complain. They are afraid to ask for their rights. They do not know they have rights.”
She says workers are afraid of losing their jobs if they report workplace injuries. They come to her to share their stories and ask for advice.
Daniela’s workplace injury was caused by repetitive movements combined with lifting weight. She was sent to a rehabilitation centre for WSIB claimants, following five months of physical therapy.
The WSIB approved her repetitive movement injury, but did not approve another injury she reported. She says it is not easy to have injuries approved.
She explains that following the workplace injury, the WSIB assigned a recovery time to her, and pressured her to push herself physically beyond her limits. She says the WSIB pushes workers to return to work before they are fit to do so.
She says the centre told her, “In four weeks, you will be good to work again.”
“They try to push you. They increased the amount of weights that I was using. They claimed it was the right thing to do, but I was constantly in pain. They see it but they ignore it.”
She says that during her time in the program, she met many injured workers and heard their stories. “They were in pain. They were forced to work by their case managers.”
The WSIB can cut off benefits from workers by deeming them “uncooperative.” For this reason, workers are sometimes fearful to resist directives from the assessment centres.
“One woman was clearly in pain. She really could not perform her job, but she needed to cooperate. She had to go to work. She had a fixed treatment and then she was sent back to work. And then she received more treatment, and was sent back to work.
“It was like that for a year.”
The Marshall Plan
Since 2009, the number of denied claims have increased by 50 per cent, and benefits to injured workers – which can include, for example, loss of earning benefits – have been reduced by 631 million. These cuts have come alongside the appointment of international banker David Marshall as the WSIB’s president. Marshall, well known to both Wall Street and Bay Street, has presided as vice-chairman of CIBC and as a managing director of New York leading investment bank, Bankers Trust.
Under Marshall, whose five-year contract exceeds 2.4 million, the WSIB has laid off hundreds of staff and slashed benefits for injured workers. What’s worse, Marshall has been promised a $400,000 bonus if he is able to achieve particular financial goals, including increasing “administrative efficiencies” and reducing “unfunded liability.”
Unfunded liability is understood as the discrepancy between the funds required to pay the benefits of injured workers and the amount of money collected into the WSIB’s insurance fund. The provincial government passed legislation requiring the WSIB to eliminate its billions of dollars of “unfunded liability” by 2027. Under Marshall’s austerity model, workers are being forced to bear the brunt of cuts to benefits, rather than requiring employers to increase premium contributions. In fact, premium contributions were frozen at current rates for the year 2014.
Even more shocking, the WSIB is providing millions of dollars in rebates on premiums to employers convicted under the Occupational Health and Safety Act (OHSA), as revealed in an excellent report released by the Ontario Federation of Labour on Nov. 24. According to the report, between the years 2011 and 2013, 78 (58 per cent) of 135 employers convicted of offences under the OHSA received almost $15 million in rebates during the same year that offences were committed, and oftentimes, these rebates were greater than the fines designated for violations of the act.
The WSIB is determined to get the worker back into the Canadian job market as soon as the predicted recovery date is over, says Ponting. “‘The WSIB will say, you may or may not be permanently disabled. But we think you could do a job as a customer service rep, or a parking lot attendant.”
“It’s a dehumanizing, intensive process,” she says.
Do labour unions make workplaces safer?
While the WSIB deals with claimants that work in unionized environments, Ponting says collective agreements can improve healthcare access for workers, particularly where agreements provide long-term or short-term disability insurance through a private provider.
The reality is injured workers are confronting two powerful forces against them: the government and the employer.
“They both want to protect the bottom line,” says Ponting. “These are two very powerful institutions. You have the economic incentive of, effectively, an insurance company, coupled with the power imbalance between you and your employer.”
“Unions help to offset that power imbalance between worker and employer, and an insurance company that wants to deny them benefits,” says Ponting.
Daniela has worked in a unionized workplace before, and says she saw a difference in the level of workplace safety between it and the workplace where she obtained her injury.
“The [unionized] workplace was super safe, we were aware. We were aware of how to report this. I wonder why it can’t be like that elsewhere. Because if you are aware, you prevent yourself from getting injured.”
“My experience is unionized workplaces are safer.”
In Part two, R&F.ca examines how the WSIB affects Ontario’s migrant workers, and we will discuss needed reforms to the WSIB system.