Has the WCB/WSIB abandoned its mandate?

Bancroft Spring 2014 Workshop Ontario’s workers’ compensation administration has, in the last few years, proposed and implemented changes to policy and practice that increasingly adversely affect injured workers’ benefits, health and socioeconomic conditions. These exercises in cost-cutting, framed as “efficiencies” or “modernization”, are – despite government statements to the contrary – indeed being made “on the backs of injured workers”. They threaten the balance of interests (worker, employer, public) and the commitment to full justice (compensation for as long as disability lasts in an non-adversarial system) of the Meredith principles which Canadian compensation boards still claim as their foundation.

The Bancroft Institute for Studies on Workers’ Compensation and Work Injury held an April 2014 Research to Action Workshop in Toronto on this timely topic: Has the WCB/WSIB abandoned its mandate?

Here are selected presentations (more to follow) from the Workshop, together with a Legal Primer on terms used:

Hilgert

Jeffrey Hilgert, Assistant Professor at the School of Industrial Relations, Université de Montréal, studies international labor and human rights, focusing on occupational safety and health and employment injury benefits. Formerly a labour rights and anti-poverty activist in Minnesota, Dr Hilgert has received human rights awards, a Fulbright and Archibald Bush fellowships for his efforts. A key presenter also at last year’s “No half measures” Meredith Conference, he is author of the recently published “Hazard or hardship: crafting global norms on the right to refuse unsafe work” (Cornell University Press, 2013). The presentation considers what a rights-based approach would mean, the legal and social implications for injured workers.

Dave Wilken
Dave Wilken has been representing injured workers and advocating for their interests since 1990. Currently lawyer at Building Trades Workers’ Services, he formerly worked at the Industrial Accident Victims Group of Ontario (IAVGO) from 1994 to 2009, Office of the Worker Adviser, and Injured Workers Consultants (IWC). A presenter also at the 2013 Meredith Conference, he is author of a 2012 analysis of the Arthurs Report on WSIB financing in which Arthurs critiqued the Board for not ensuring the integrity of its experience rating program – charging that the WSIB failed to meet the declared goals of improving, through financial incentives, employer occupational health and safety and return to work programs. This Bancroft presentation addresses the subsequent response of the Board in its new rate framework affirming insurance pricing equity for employers to be the only issue.

Maryth Yachnin
Maryth Yachnin is a staff lawyer for IAVGO, the community legal clinic that, after finding a disturbing pattern of surveillance and benefit cuts, made a freedom of information request for related Board documents. The internal guidelines revealed “red flags” for fraud that point to the most vulnerable workers – those with psychological illness, language barriers, precarious employment – as potentially subject to covert surveillance. A panelist at the 2013 Meredith Conference, her recent presentations address concerns with WSIB draft pre-existing policies and mental stress.

See also her video “Voodoo science”

Making sense of Ontario’s law reform

AndrewKingIn “Making sense of law reform : a case study of workers’ compensation law reform in Ontario 1980 to 2012”, his 2014 thesis presented for the Master of Law degree at the University of Ottawa, Andrew King analyzes the law reform and its implementation from the standpoint of injured workers.

Part One constructs an analytical framework drawing on legal theories and principles of adjudication. It provides a brief history of the Ontario Workers’ Compensation Board, its powers and adjudicative practices prior to the reforms.

Part Two summarizes reform in Ontario’s workers’ compensation law from 1980 to 2012. The description is organized into five periods reflecting significant shifts in direction. It focuses on government recommendations for reform, identifies and describes key legislative changes, and explores changes to governance, appeals and adjudication. Legislation, case law, policy and practice are reviewed.

Part Three reviews the evidence of the impact of the Ontario reforms on a particular group:
unemployed, permanently disabled workers. While the Board refuses to track the economic status of injured workers, research suggests poverty and stigma face many.
Conclusions suggest that Ontario’s workers’ compensation system was transformed from one
established to address the interests of workers and employers separately to one that balances those interests and now into one that privileges the interests of employers. Workers’ interests are a cost to be reduced. The prospect of law reform as an empirically driven process to address injustice has been corrupted by a focus on correctness with fairness as an afterthought. (Author abstract)

Read the full thesis.

Former director of health, safety and environment for the National Office of the United Steelworkers of Canada (USW), Andrew King, long-time advocate for injured workers, is currently Assistant Professor, School of Labour Studies at McMaster University, co-investigator for the Centre for Research on Work Disability Policy and one of the worker representatives on the Research Advisory Council of the Workplace Safety & Insurance Board in Ontario.