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BC Government's Denial of Social Responsibility for Injured Workers Serious Problems with "No Fault" Workers' Compensation Historic CompromiseA review of the case of an injured BC worker was conducted by the Office of the Ombudsperson and published in September 2021 in the report SEVERED TRUST: Enabling WorkSafeBC to do the right thing when its mistakes hurt injured workers.[1]
The aim of the system is supposed to be to take care of injured workers but over the last three decades of anti-social restructuring of the state to serve the rich, injured workers' rights and benefits have increasingly been a target of attack through cuts to benefits and denial of services, privatization of medical care and rehabilitation services and other measures. In his introduction to the report Ombudsperson Jay Chalke raises the issue: "What happens in the rare circumstances when a public body makes a mistake and, as a result, a member of the public is grievously injured? Does the public body step up and make it right? Or, does the public body hide behind legal technicalities and a hundred-year-old 'historic trade-off?'" The report shows in detail that the latter was the case. Mr. Snider, a worker with nearly 25 years of experience as a cabinet maker, was injured at work on January 4, 2010. While operating a table saw he suffered a partial amputation of the tips of his left index, middle, ring and little fingers. WorkSafeBC accepted his claim and provided temporary wage-loss benefits while he underwent surgery, received rehabilitation services and participated in a gradual return-to-work program. The report states that "WorkSafeBC stopped paying wage-loss benefits after incorrectly concluding that Mr. Snider was able to safely return to his pre-injury job, full-time and without restrictions."
Six days after returning to work on September 13, 2010 he wrote to WorkSafeBC expressing concern for his well-being and explaining that he did not feel safe operating the industrial machinery that he was required to use as a cabinet maker. He said in his letter that "in less than a week I lost control of a router, a jigsaw and a dolly that I was moving down a ramp" and described precisely how his injuries made it unsafe for him to do the work. He received no response to his letter. On January 26, 2011 while operating a table saw, the report states, "Mr. Snider's poor ability to grip with his left hand caused him to lose control of the item he was cutting. His left hand slipped into the blade, causing partial amputation of the previously intact thumb and index fingers, and further amputations of his already partially amputated middle and ring fingers." He spent 26 hours in surgery and 10 days in Intensive Care. Four months after his second injury, on May 11, 2011 the WorkSafeBC Review Division determined that the Claim Manager's decision after the first injury to cut off his temporary wage loss benefits and force him back to work was an error. Following that, the report says, "It took nearly three years of appeals through the Review Division and Workers' Compensation Appeal Tribunal (WCAT) to determine that Mr. Snider's second injury was causally related to his first injury. Despite this, it would take another two and a half years of appeals before WorkSafeBC correctly determined Mr. Snider's benefit entitlements. After a total of five years of navigating complex appeal processes to correct the series of errors made by WorkSafeBC and its Review Division (made after its most grievous error of concluding that he could return to work when he was incapable of safely doing so), Mr. Snider began receiving the benefits he was due."
In his report the Ombudsperson makes three recommendations, one for legislative changes that would provide for WorkSafeBC to compensate workers harmed as a result of its decisions, the other two related to compensation for Mr. Snider. The Ministry of Labour has refused all three, in essence rejecting holding itself or its agencies like WorkSafeBC responsible for their actions. The Ministry actually states that the mechanisms for individual workers to appeal decisions that currently exist are sufficient. Mr. Snider's case and the experience of thousands of BC workers in navigating the appeal process to defend their right to compensation, disprove that. The Deputy Minister of Labour argues that a legislative amendment which would allow WorkSafeBC to compensate workers harmed by its mistakes, "is contrary to foundational workers' compensation principles, erodes the historic trade-off and is inconsistent with the intent of the immunity clause in the Workers Compensation Act" and would "create fault-based liability for general damages... contrary to the no-fault principles that underpin the entire system." The "no fault" system is based on the premise that the state will take care of injured workers, ensuring medical treatment, rehabilitation and compensation that allows them to live a secure and dignified life. That doesn't happen. Neo-liberal restructuring of the state institutions has resulted in massive violations of the rights of injured workers. Institutions like WorkSafeBC do not function to meet the needs and uphold the rights of injured workers. Rather than acknowledging that fact and taking action to change it the Ministry indeed "hide(s) behind legal technicalities and a hundred-year-old ‘historic trade-off." Note1. For the full report, click here.
This article was published in Article Link:   Website: www.cpcml.ca Email: editor@cpcml.ca |
The
investigation into the experience of the worker, a
cabinet maker
identified as Mr. Snider who was twice seriously
injured at work, and
the responsibility of WorkSafe BC for his second
injury, reveals
serious problems with the "no fault" Workers'
Compensation System which
exists in all provinces. The concept of "no fault"
is part of the
historic compromise that brought the compensation
system into being --
workers forfeit their right to sue an employer
when they are injured on
the job in exchange for treatment,
rehabilitation and
compensation guaranteed by the state from a pool
of funds contributed
by employers. 
The
worker and his doctor had both made it clear that
he had
difficulties gripping objects and was not capable
of returning to
operating industrial woodworking machinery, and
his surgeon told
WorkSafeBC that he was permanently impaired as a
result of his injury.
When his benefits were cut off he appealed the
decision but, faced with
the choice of returning to work or having no
income and becoming
homeless, he returned to work.
What
he was still refused, to this day, is compensation
for WorkSafeBC's
actions that forced him to return to work when it
was not safe for him
to do so and then to engage him "in a seemingly
endless process of
appeals for nearly five years to receive the
benefits he was entitled
to." It was not until the Ombudsperson's
investigation was
underway that Mr. Snider even received an apology
from WorkSafeBC.