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October 22, 2021 - No. 98
In
Defence of the Rights of Injured Workers
Workers
and Advocates in Ontario Condemn Plan to
Enrich Employers and
Impoverish
Workers
Friday,
October 29 – 11:00 am
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• Injured Workers Community Legal Clinic Demands Restitution for Injured Workers
In Defence
of the Rights of Injured Workers
Before
the end of October, Ontario's Minister of Labour, Training and Skills
Development, Monte McNaughton, plans to introduce legislation that will
"allow" the Workplace Safety and Insurance Board (WSIB) to distribute
the Insurance Fund Surplus to employers when the fund exceeds 115 per
cent and to "require" this distribution when it reaches 125 per cent.  Talk of surpluses is bogus to
say the least and at the base of
the fraud the government has perpetrated against the interests of
injured workers. Massive cuts to workers' benefits and other
measures have resulted in what is called the "surplus" in the
insurance fund. Since the "surplus" was created through denial of
claims and cuts to benefits to injured workers, the only
legitimate way to now use those funds is to make immediate
restitution to injured workers who are being pushed into poverty
and desperation.
The legislation
will
be based on two of the 25 recommendations of two
consultants who
submitted an Operational Review Report in
November 2020, the
Speer-Dykeman Report. The recommendations are
that "the government
should adopt a regulation that prescribes a
sufficiency ratio corridor
between 115 and 125 per cent for the Workplace
Safety and Insurance Board from 2020 to 2025"
and that "the government
should prescribe the parameters for surplus
distribution --
namely, instructing the Workplace Safety and
Insurance Board to
consider surplus distribution when the insurance
fund exceeds 115 per
cent and to require it distributes surpluses if
the sufficiency ratio
hits or
exceeds 125 per cent."
Between
July 15 and August 10 this year the WSIB conducted a "consultation,"
the Workplace Safety and Insurance Board Insurance Fund Surplus
Distribution Model Consultation. This was not announced publicly.
Injured Workers' Groups, advocates and unions were not informed but
nonetheless found out and were able to submit briefs.
The
plan has been soundly denounced by the Ontario Federation of Labour,
several unions, injured workers groups across the province, and
advocacy organizations. It is a straight-forward scheme to pay the rich
with funds stolen from injured workers over the years. Cuts to workers'
compensation were justified on the basis of the fraud that the system
could not have an "unfunded liability." It is self-serving accounting
and propaganda to divert funds to pay the rich.
Workers' Forum
is reprinting below a summary and excerpts from
the submission of the
Injured Workers Community Legal Clinic from
August 10, 2021.
 The Injured
Workers Community Legal Clinic (IWC) begins its
submission by rejecting the premise of the
consultation and demanding
that the government "return to injured workers
what was taken away from
them in the name of eliminating the unfunded
liability (UFL)." The IWC
and others have always pointed out that there is
no reason
for a public system like the WSIB to require a
permanent state of full
funding, i.e. that the ‘unfunded liability' is a
ruse.
The IWC points out that the consultation itself was
flawed because
it was based on an Operational Review Report
commissioned by the
Minister of Labour in 2019, the Speer-Dykeman
report of November 2020,
which did not look at the history of the
unfunded liability and who
paid for it. By doing so, the IWC argues, "the
report released itself
from the responsibility of looking at what
created the unfunded
liability in the first place (artificially low
premiums) and who paid
for its elimination (injured workers)" and
asserts that that history
"is not only an important part of
understanding
what the government and WSIB should do at this
historic juncture, but
that it is the most
important element of creating a path
forward."
Significant Historical Events
The Mike Harris government made
cuts in the 1990s including $15.2 billion with
Bill 99 in 1996 which
reduced cost of living adjustments, reduced Loss
of Earnings benefits
from 90 per to 85 per cent of net, halved the
loss of retirement income
benefit and cut chronic pain entitlement.
 In the 2000s the
Dalton McGuinty
government imposed further reductions in
benefits to reduce the
"unfunded liability" through extending the
process of "deeming" which
"pretends that workers have a job that they do
not have, and reduced
their benefits by the wages that they are
imagined to be earning in
this phantom employment," by
reducing compensation based on "pre-existing
conditions," and by
ignoring the opinion of injured workers'
treating doctors. The person
in charge of this assault on injured workers'
rights to compensation,
David Marshall, openly said that he would
introduce "tough, tough,
tough" measures and would challenge his team to
"reduce the rate of
long
term (compensation) recipients by half."
The IWC
points out that "At the time of these cuts,
however, injured workers
were unambiguously told that once the UFL was
eliminated, some of these
cut benefits would begin to return. [...]
"Finally,
in the two years prior to the report alone,
employers were already
rewarded a 47.1 per cent reduction in premium
rates since 2019, which
has already saved them billions of dollars.
"A
reasonable observer might conclude that since
employers have already
been rewarded with massive premium rate cuts,
there should only be one
kind of consultation now: how to return some of
the benefits to the
injured workers who were forced to make the
sacrifices that eliminated
the unfunded liability."
The
IWC explains that the WSIB created the surplus
by not providing
benefits to workers. It reports that "WSIB's own
Annual Financial
Reports reveal that between 2010 and 2015 alone,
the benefits paid out
to injured workers were cut in half, from $4,809
million to $2,332
million," all through cuts which the IWC analyses in
detail. These include
deeming, failure to compensate for work-related
chronic mental stress
injuries despite 2016 legislative changes that
required that these
injuries be covered in the same way as other
injuries, the rejection of
occupational disease claims, and a 65 per cent
reduction in permanent
injury settlements with no corresponding
reduction in injury rates.
 Claim
suppression, efforts by employers through
intimidation
or more subtle means to stop workers from making
claims, is also a
factor, permitted by the lack of effective
auditing and investigation
of claim suppression. The IWC points out that:
"We
know that the WSIB does not hesitate to flag,
escalate, and thoroughly
investigate any behaviour they deem as
‘suspicious' on the
worker side of things, up to and including
hiring expensive and
invasive private investigators to tail workers.
Again, it is anecdotal,
but we simply don't see or hear of that level of
effort, resources, and
responsiveness when it comes to investigating
suspicious employer
behaviour. [...]
"A suppressed
claim, at bottom, is one that the WSIB does not
have to pay for,
resulting in potentially massive levels of
savings for the Board.
Returning premium "surplus" to employers before
adequately equipping
Board staff with strong investigative mandates
and resources is another
reason injured workers are feeling ‘kicked while
they are
down' by this consultation process."
The IWC
proposes that, "in the wake of increased funding
at the WSIB, the
government should make the following legislative
changes to prioritize
injured workers, aimed at returning the system
at least to the level it
was before UFL related cuts began in the 1990s."
The proposed legislative changes include:
-
Increase the Loss of Earnings rate from 85 per
cent back to 90 per cent
- Full retroactive
replacement of benefits related to cost of
living adjustment
- Increase of the
Loss of
Retirement Income benefit percentage, currently
at five per cent,
reduced from 10 per cent by Bill 99 in 1996
- An
increase in the Non-economic Loss Benefit rate
through the
establishment of an appropriate "base rate" more
in line with awards in
personal injury cases or by private insurance
-
Arms-length funding for the Ontario Network of
Injured Workers' Groups
to enable them to participate in consultations
on how best to fund the
WSIB
In conclusion, calling for immediate
restitution to workers, the IWC says:
 "This
consultation is hampered by the Speer-Dykeman's
report's unwillingness
to examine how the unfunded liability was
eliminated and who paid for
it. As a result, it therefore asks the wrong
questions and sets out to
reward the wrong party for the so-called
"victory" over the unfunded
liability. Said another way: the Minister of
Labour
received lop-sided and incomplete advice, and
should show dignity and
respect for injured workers who surrendered so
much for over two
decades, by returning the benefits that were cut
over time. Above, we
have listed some measures that could be
undertaken to begin to redress
the cuts that have been made to the compensation
system, and begin
to restore the trust of injured workers.
"Finally,
try to imagine yourselves in the position of
injured workers, who
collectively have watched literally billions of
dollars get shaved off of
their benefit cheques for decades alongside a
promise that "things will
get better when we are funded," only to see that
the reward for their
sacrifices is a consultation about how to divide
their lost
benefits up amongst employers. The same
employers who injured them.
Many of whom may have suppressed and managed
their claims and those of
their community. Who are protected from lawsuits
whether they are
neglectful for not. Who fight publicly for a
system that does less for
injured workers.
"We don't make these submissions
only because we are on the side of workers. We
make them because we are
on the side of fairness. We believe we have made
the case that rushing
to return money to employers is not a fair
approach to the elimination
of the unfunded liability." For the Injured Workers Community Clinic's full submission click here.
(To
access articles individually click on the black
headline.)
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