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Unreported Job Injuries: ‘The Elephant in the Workplace’

BC employers save money by discouraging WCB claims. The problem is particularly bad for workers with little security or power.

Andrew MacLeod 14 Jun 2022TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria and the author of All Together Healthy (Douglas & McIntyre, 2018). Find him on Twitter or reach him at .

While the frustrations of those seeking help from British Columbia’s system for compensating injured workers have been well-documented, much less is known about the many people who are injured at work but never make a claim.

“There’s almost an equal number of workers who don’t get in the system,” said Paul Petrie, a former vice-chair of the Workers’ Compensation Appeal Tribunal.

“There is... standing outside the gates a large number of injured workers who for different reasons, claim suppression being one of them, do not get access to the system,” he said. “To me both sides of that needs to be addressed.”

There are various forms of claim suppression. Employers can discourage workers from reporting their injuries, prevent them from filing claims, pressure them to return to work before they are fully healed, punish them for reporting their injuries and create incentives to discourage claims.

Employers’ Workers’ Compensation Board, or WorkSafeBC, premiums are based on claims submitted by workers. Fewer claims generally means lower premiums.

Labour Minister Harry Bains has said the government is working on changes to legislation governing the WCB based on reports from Petrie and others.

Those changes will include addressing claim suppression, Bains told The Tyee in an interview last month, though he couldn’t say when they would be made.

“Timing is difficult because we have still a lot of work to do,” he said.

Petrie flagged the issue in his 2018 report, “Restoring the Balance: A Worker-Centred Approach to Workers’ Compensation Policy.”

He gives WCB credit for acting on his recommendation to commission an independent scientific review on claim suppression, even if what it found may be uncomfortable for the agency.

The resulting report from the Institute for Work & Health in collaboration with Prism Economics and Analysis was based on surveys of workers and employers, as well as an analysis of some types of time-loss claims.

“Different indicators were used to estimate the approximate incidence of claim suppression,” they wrote. “The estimates ranged from 3.7 to 13 per cent of the sample, with estimates towards the lower end being more likely.”

The surveys also found other reasons that a significant number of workers did not file claims when they lost at least two days of work due to an injury.

That group included 40 per cent who lacked knowledge about their entitlement to WCB benefits or how to apply, and almost 36 per cent who didn't believe it was worth their time to apply. About 14 per cent didn't apply because they perceived pressure not to claim, including from colleagues.

The figures from the report translate to about 45,000 workplace injuries in B.C. that went unreported in 2019, making it “the elephant in the workplace.” Petrie wrote in a 46-page followup report released in March.

“The Claim Suppression Study has provided reliable data to show that there is a significant level of claim suppression in many B.C. workplaces,” he wrote.

“Yet claim suppression in its various forms is not widely discussed and there are no comprehensive programs to address this systemic problem.”

One result is that support for workers who are injured ends up coming from sources other than WCB, he added, saving employers large amounts of money.

“The costs associated with these unclaimed injuries can be reasonably estimated at $50 million or more and are borne primarily by the injured workers, their families and the general public through the taxpayer Medical Services Plan and other income support programs outside the accident fund.”

WCB is funded by premiums paid by employers and investment income. Sometimes referred to as the “historic compromise,” both employees and employers give up the right to sue in exchange for a predictable no-fault method of determining how much support an injured worker is entitled to.

Claim suppression is against the law, but it is rarely if ever investigated, Petrie said.

“The board’s enforcement of their own laws is woefully inadequate.”

At the same time, the “experience rating” system that reduces the WCB rates for employers with workplaces that have few claims encourages claim suppression, he said.

“It rewards them.”

That creates an inequity between employers who comply with the system and report workplace injuries, and those who do not.

“There is a divide among employers, I really want to emphasize that, and there are a lot of frustrations among employers who recognize that they’re not on a level playing field,” Petrie said, noting employers in unionized workplaces and the public sector are more likely to meet the requirements of the law.

“The non-compliers, that group of employers that are not complying with the legislation, are really undermining the integrity of the legislation, and the WCB’s financial rewards through experience rating is really fuelling that process,” he said.

“I just think that the [WCB] board of directors have a fiduciary responsibility to those employers who are meeting their obligations, and to the injured workers who have statutory entitlement to access the system which [is] not being provided now, and that’s a real concern of mine.”

Janet Patterson, the author of a major 2019 report on WCB, said that in her years working in labour law she talked with approximately 10 workers who had been fired because they refused to agree with an employer’s request that they not file a WCB claim.

“They were often immigrant workers and people who were just hanging on by the skin of their teeth,” she said.

For affected workers, there’s little recourse or opportunity to bring the issue to anyone’s attention.

“Often it’s the power imbalance in the workplace. They never even get to talk to anybody,” she said.

Patterson said she was aware of one workplace where the employer bought a television for the work room, but warned staff that it would be removed if anyone ever filed a WCB claim — a situation that created peer pressure to suppress claims.

Still, she was surprised to see the extent of the problem as documented in the reports from Petrie and the Institute for Work and Health.

“The scope of the claim suppression was surprising, even shocking, but the mechanism by which the board actually allows that is something that needs to be addressed,” she said, citing the incentive the experience rating system provides to suppress claims.

“The experience rating is really the engine that drives, and I think may be increasing, claim suppression more than it ever has,” Patterson said.

Kevin Love, a lawyer with the Community Legal Assistance Society in Vancouver who works on workers' compensation cases, said claim suppression is an issue that needs more attention.

“From what we hear, the problem is particularly bad for precarious workers who have little job security or power in the workplace, such as temporary foreign workers,” he said.

“It doesn't take much for an employer to convey that anyone who reports an injury will be seen as a troublemaker and punished accordingly. These workers tell us that they are scared to stand up for their rights because the consequences of losing their job are so dire.”

Even though claim suppression is barred by the Workers Compensation Act, there is very little a worker can do if they are retaliated against for making a claim, Love said.

“A worker who is retaliated against for reporting health and safety concerns can make a complaint with WCB and seek a remedy against the employer, but a worker who is fired for simply filing a WCB claim cannot.”

Petrie’s report included 13 recommendations to address claim suppression.

Proposed solutions include using a collective industry pool to cover the first two weeks of compensation for a worker after they are injured, rather than having it affect an individual employer’s experience rating. The emphasis should be on preventing injuries, he said, rather than the “dysfunctional approach” of counting money after they occur.

The government needs to address claim suppression and there needs to be more public awareness of the issue, he said.

“I’m hoping that in the days ahead that becomes more important — a recognized issue in the conversation that has to happen.”  [Tyee]

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