Injured Workers Community Legal Clinic Submission on Bill 27On November 17 the Injured Workers Community Legal Clinic (IWC) submitted proposals for amendments to Schedule 6 of Bill 27 which amends the Workplace Safety and Insurance Act, 1997 to the Standing Committee on Social Policy. The proposals focus on two aspects of the proposed legislation; first, the need to prioritize restitution to injured workers from whom money was stolen to eliminate the unfunded liability, and second, the need to address the issue of claims suppression, the practice of employers of under-reporting and coercing workings into not filing claims, resulting in injured workers not being compensated and employers with high injury rates actually being designated as "safe employers" because of their low claims rate. The IWC states: "This Bill is doing injured workers a great disservice, and we urge the Committee to reject the portions of the Bill regarding the workers' compensation system (namely, Schedule 6), or to, at the very least, amend the Bill to include consideration of injured workers. Specific suggested amendments to the Bill are contained within this submission. [...]
"We are very concerned that the WSIB has reached levels of funding which would make the topic of surplus distribution even remotely relevant. When the government first directed the WSIB to work toward 'full funding,' it directed the WSIB to do so by 2027. The fact that the WSIB reached what it considers to be full funding by 2018 should be a matter of deep concern rather than pride. The way that the WSIB was able to amass such a huge amount of money in the bank (approximately $40 billion) was on the backs of injured workers. Before the government or the WSIB even consider claiming to be in a surplus position and propose paying out funds to employers, injured workers need to be provided with full and fair compensation, in compliance with their legal rights and as promised by the historic compromise and founding principles of the workers compensation system." Under the theme "Restitution for Injured Workers" the IWC lists specific obligations to injured workers that must be met before any "surplus" can be considered legitimate, including increased rates of payment to cover loss of earnings, the elimination of deeming, proper funding for occupational disease and recognition of mental stress injuries, and others, and concludes: "... inadequacies of the workers' compensation system need to be addressed before any 'surplus distribution' to employers is considered. It is incumbent on the WSIB to identify any gaps in services and liabilities before considering itself in a surplus position, so that those needs can be met before taking money out of the system through employer discounts. [...] "In order to be able to address outstanding obligations and inadequacies of the system with available funds, any surplus distribution provisions must prioritize the distribution of funds to programs and services for the benefit of injured workers -- not only employers (the proposed section 97.1). Schedule 6 of Bill 27 is otherwise inexcusably one sided and pandering to employer interests and not 'working for workers' at all." The other major issue with the proposed legislation is that the "surplus" is to be distributed to "good" employers. The Minister stated that the government's intention is to "reward safe employers." A "safe employer" is determined by "claims experience," i.e. a formula that defines "safe employers" as those with a low number of claims filed by workers who have been injured or made ill on the job. The IWC points out that "Employers pay premiums based on their cost experience, but if they coerce their workers not to claim or reduce compensations costs, bad actors win."
The IWC proposes several changes to the legislation which would require that the Board prioritize injured workers, eliminate deeming, use any funds over and above those used to compensate workers for improvement in health and safety in workplaces, and ensure sufficient workplace audits every year to stop under-reporting and claim suppression. In the conclusion of their submission the IWC once again argues that injured workers' benefits have been reduced by billions of dollars in the name of addressing the unfunded liability, and for reparations and ensuring proper benefits for injured workers. They say, "We, as a society, should not be engaging in an exercise of balancing corporate profit against full compensation for injured workers. In order to avoid helping businesses at the expense of injured workers, the proposed legislation needs to be amended to include the need to consult stakeholders on outstanding inadequacies of the system before allocating available funds, and potential allocations need to be allowed and prioritized for programs and services that benefit injured workers." To read the full submission click here.
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"As
you know, Schedule 6 of Bill 27 proposes that when the Workplace Safety
and Insurance Board (WSIB) reaches 115 per cent funding, the WSIB 'may'
distribute this surplus among Schedule 1 employers, and at 125 per cent
funding, this distribution would be mandatory.
Injured
workers advocacy groups have long reported that claims suppression and
under-reporting, including
misrepresenting the circumstances surrounding a workplace injury, are
serious issues. They point out that although this is difficult to
measure, A 2013 Report commissioned by the WSIB indicated that "20 per
cent is a plausible estimate of the proportion of likely compensable,
work-related injuries or illnesses for which workers do not submit
claims," that other studies (including very recent ones) have suggested
that workplace injuries are under-reported in the range of 40-60 per
cent, and that the current rate setting system does not address (and in
fact unintentionally encourages) the problem of claims suppression and
under-reporting.