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A Decade's Slide in Help for Hurt Workers

Liberal changes to WorkSafe BC have eroded payments, rehab for those injured on the job. Computer glitches fuel criticism.

By Tom Sandborn 29 Sep 2010 | TheTyee.ca

Tom Sandborn is a Tyee contributing editor focusing on health policy and labour. He welcomes feedback and story tips here.

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Critics say new computer system just adds to injured workers' problems.

[Editor's note: This article is part of the occasional series Working Ahead: Labour in a New Era of Challenges launched on Labour Day.]

First a workplace accident shattered his elbow. Then WorkSafe BC shattered his hopes for proper compensation.

That's the story an injured worker told the Tyee recently. Call him Tony. He is afraid to use his real name in a public discussion because he fears retaliation from the government for criticizing the way WorkSafe has handled his crippling injury and its consequences.

Tony, a middle-aged immigrant with an elementary school education, was a proud and successful building tradesman before his accident. But after the accident crippled his arm he could not practice his trade and so lost his livelihood. Since then, he told The Tyee, Worksafe offered a little inappropriate re-training and then a small payment ($500 a month) to age 65.

The WorkSafe payment for the permanent injury to his elbow was far too low, in his opinion, and seemed based on an automatic formula that didn't take into account his circumstances and chronic pain.

Then there are many new rules to reduce the actual amount WorkSafe must pay even using this definition -- lower base wage rates, deducing for CPP pension, discounting cost of living increases, and no interest payments.

At the end of many appeals, Tony's monthly payment has increased but is still less than one-third of what he used to make. Tony still cannot believe that in this compensation exercise, WorkSafe does not consider the impact of his injury on his ability to earn a living or what the loss of his earning capacity means to him and his family.

"I had everything," Tony told the Tyee. "I was employed, had a house, and I thought I was insured if I got hurt. I've found out there isn't any social safety net. I feel horrible about how I was treated. It's been a nightmare. People need to know that workers' comp doesn't really protect them. They need to cover their own asses."

'Insult to Injury'

Tony's case is not an isolated one, according to lawyers who represent injured workers. The province's system of workers' compensation has been transformed in the past decade, say a group of B.C. labour lawyers who have worked within it for decades, and the changes have all gone to reduce costs and minimize compensation for those who come to grief at the job site.

Workplace injuries can be a nightmare. A sudden fall or a slowly accumulating exposure to toxins, a hand caught in an inadequately shielded machine or slowly crippled by repetitive stress -- there are a thousand ways to become permanently hurt or killed on the job. For nearly a century, injured B.C. workers have been able to turn to WorkSafe BC (formerly the Workers' Compensation Board) for compensation, re-training and other support functions.

"Insult to Injury," a report prepared last year by Stan Guenther, Sarah O'Leary and Janet Patterson, labour lawyers with decades of experience with WCB/WorksafeBC cases, sounded the alarm about what the authors see as dangerously retrograde steps taken in the last decade in B.C., steps they say deny many injured workers the loss of earnings pensions that used to be available through the system and slow and reduce the flow of compensation money when B.C. residents are injured on the job.

These claims are made as WorkSafe BC is undergoing a major internal re-organization, a set of changes that revolve around the introduction of a controversial and so far glitch-ridden new computer software designed, say its critics, to reduce the skilled health professionals who rule on compensation claims to data entry clerks.

The authors of "Insult to Injury" say that the changes made since 2002 "were initiated by the Liberal government after an aggressive lobbying effort by employers. The employer lobby advanced the inaccurate view that the system had become economically unsustainable and the resulting changes were based upon no discernable principle other than that of reducing costs for employers. In that regard, the changes were very successful. But these changes have come at a profound cost to workers and to the treatment and benefits that injured workers receive under the compensation system."

Ministry communications manager Linda O'Connor declined to respond to the allegations found in "Insult to Injury" report, referring The Tyee to WorkSafe BC for comment. She did say:

"The main purpose of these changes was to make the B.C. Workers' Compensation system more responsive to the needs of both workers and employers. Bill 49, which amended the Workers' Compensation Act in 2002 sought to ensure that our Workers' Compensation system remains financially sound, while continuing to provide benefits that are among the most generous in Canada."

Loss of Earning pensions slide

O'Connor said that the government had no immediate plans to amend the Workers Compensation Act.

Changes made in 2002 and 2003 under Bills 49 and 63 have changed the prospects faced by an injured worker in B.C. by effectively eliminating pensions based on actual long term losses to earnings.

The number of so-called loss of earning (LOE) pensions granted has fallen from an annual average of around 1,000 before the legislative changes to only 68 during the 16 month period from February 2006 to June 2007. During that period, 96 per cent of the injured workers who applied for LOE pension were denied.

According to Donna Freeman, who speaks for WorkSafe BC, in 2009 the body authorized 225 LOE pensions, compared with 928 OK'd in 2001.

Other key blows to injured workers delivered by the employer-driven "reforms," say the report's authors, include "an effective elimination of vocational rehabilitation assistance," over-complicated appeals processes, functional pensions that used to be paid for life now ending at 65, a 13 per cent reduction in benefit rates, a reduction in the consumer price index related adjustments to payments for workers, changes in the way an injured worker's wage rate is calculated, and significant restrictions in compensation for psychological injuries and chronic pain.

In addition, they say, power has been concentrated in the hands of the Board, reducing the discretion a claims worker could previously exercise in making case decisions. The changes, they say, have "had a profoundly negative economic effect on thousands of permanently injured workers and their families."

WorkSafe defends practices

Roberta Ellis, senior vice president of corporate affairs at WorkSafe, told The Tyee that she did not dispute the claims in "Insult to Injury" and that the goal of the changes made early in the decade was to reduce loss of earnings pensions and other expenditures.

"Mr. Guenther and his colleagues are right about the numbers," Ellis said, "but those changes were the intent of the legislation. There were concerns about the sustainability of the system, and the new legislation was designed to address those concerns. There will always be disagreement between those who represent labour and those who represent business about how much the system should cost.

"Currently, B.C. has some of the most generous compensation levels in Canada," says Ellis. "In 2009, 65 per cent of the clients we polled indicated that WorkSafe BC services were good or very good. It is important, too, to note that workplace injuries in B.C. are down by 40 per cent over the last decade."

WorkSafe's Donna Freeman added that 93 per cent of all claims from injured workers are accepted by her organization.

"There have been no significant changes in the status quo since we wrote our report," Sarah O'Leary told the Tyee. "If anything, it's gotten worse. This government is going backwards, taking away things people fought for over decades.

New computer 'has enhanced the trouble': O'Leary

"Writing the report shocked me," said O'Leary. "I knew things were bad from my day to day practice, but stepping back and looking at the entire system was a shock. You begin to see the pattern -- reductions in service designed to reduce coverage and the payments going to injured workers. The heartlessness of it gets to you. And now WorkSafe BC is trying to impose a new computer system on its own workers, a system that is hard on both applicants and WorkSafe staff. The new system has enhanced the trouble."

The program O'Leary mentioned, the Claims Management System, has seen a long and expensive implementation process at WorkSafe BC, and in March of this year the Compensation Employees Union, which represents WorkSafe employees, issued a bulletin summarizing staff response to the new system. According to the bulletin, the new system has created huge overtime bills, massive stress for staff and less efficient service for injured workers.

WorkSafe BC employees are experiencing a "loss of hope," according to the union.

Compensation Employees Union president Sandra Wright told the Tyee that she is hearing reports of increased threats of violence against her members from frustrated clients, and of suicides among those clients.

"I always wonder, when I hear these stories, about whether they are related to the changes brought in since 2002," she said.

WorkSafe's Ellis told the Tyee that she had seen no evidence suggesting that increased levels of violence and threats against her staff were caused by the Case Management System changes.

"We are aware of these trends," Ellis said, "but they pre-date the CMS, beginning in the middle of the decade. We are concerned about those who are not coping well in the system, and we've created a special team of social workers, counselors and security staff to respond."  [Tyee]

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