“It is difficult to get a man to understand something, when his salary depends on his not understanding it.” -- Upton Sinclair
Last week, this column discussed how the B.C. Worker’s Compensation Board (WCB or Board) uses key performance indicators to leave injured workers without benefits, regardless of their condition.
Two weeks ago, it discussed how the Board’s case management system (CMS) results in a “one size fits all” approach to adjudicating claims according to “average justice.”
This week, we consider the importance of Board culture on claims adjudication.
The New Directions Report of the Workers’ Compensation Board Review, 2019 summarized the Board’s culture this way: (p. 49-50)
Another aspect of Board culture is its general ethos or vision regarding the role and purpose of compensation benefits. Currently, this ethos includes the concept of “moral hazard”. This is a view that compensation benefits encourage a worker’s dependence, helplessness and prolonged disability and in doing so, create a moral hazard for the injured worker. According to this view, a worker who is injured needs to be “incentivized” to return to work and this is best done by making compensation benefits less financially attractive than a full working wage.
This view was very much a part of the 2002 legislative changes....
The “moral hazard” approach is still very much a part of Board culture. … Several workers reported that they were warned by case managers not to think that their traumatic injuries had just won them a “pot of gold.”
Inherent in the “moral hazard” ethos is a series of definitions and assumptions. “Disability” is effectively equated to being dependent on compensation benefits. “Independence” as a goal means being independent of compensation benefits. The Board seeks to make workers “independent” by denying benefits and when workers are more “independent”, they are “less disabled”. In this way, a “disability” is defined away, without reference to the worker’s actual experience of impairment and barriers. It is also an approach which assumes that the primary barriers for disability are within the worker’s control and primarily consist of a worker’s reluctance to return to work. According to this approach, a little financial hardship is the best medicine.
The “moral hazard” ethos…is focused on reducing benefits and entitlements, discounting the views of injured workers and dismissing disability issues rather than assessing them. It positions the Board as adversarial to the needs (“demands”) of injured workers and so systemically disregards the worker’s experience of injury. This is highly unfair and disrespectful. As one long-time worker advocate put it, in 45 years of representing injured workers, not one of the them said “This is fun” or would not have traded their compensation benefits for good health and an injury-free life.
The New Direction report summarizes what those seriously injured at work already know: (p. 74-75)
the Board has travelled along the “average justice” path in its initial adjudication practices, without giving sufficient support to the need to collect and weigh evidence. At its extreme, it is a toxic decision-making culture if a claim owner can simply use the Guidelines to make a decision, does not seek/consider/weigh evidence of individual circumstances and then say “if you don’t like it, appeal”. At its barest, the first level decision maker does not apply, or seek to apply, the “merits and justice” of the case.
Appeals require time and resources that injured workers often do not have and should not be required to have in order to get compensation. For many stakeholders the issue becomes - how much justice can you afford? Given the rigors of an appeal process, many workers, and employers, live unhappily with “average justice”, which in their particular cases, does not feel like justice at all.
This is a problem, because: (p. 76)
[this] approach effectively reverses the onus and requires the worker to “prove” the exception. It may also unfairly cast doubt on the legitimacy of non-average occurrences. …“Averages” are only guidelines based on statistical formulations and have no particular significance or weight with respect to individual cases.
The Workers’ Compensation Act mandates compensation when personal injury arises out of and in the course of employment. "Compensation" includes both financial benefits and health care.
The Workers’ Compensation Act also requires decisions to be based on the “merits and justice of the case.”
The most seriously injured – those who most need the system—may not have the physical, mental or financial ability to engage in protracted litigation with the Board. And so, many live in poverty, with dissatisfaction and injustice.
As the New Directions Report states, “the Board must develop a fundamentally different service delivery model, including how it makes, corrects and implements decisions.” (p. 52)
The New Directions Report highlights severe problems with B.C.’s current WCB system.
Will the B.C government take this report seriously and adopt its recommended changes?
In addition to listening to employers, will it listen to the voices of the injured, including those who are not unionized? Will it listen to the marginalized?
One thing is clear. It is time to breathe credibility back into B.C.’s workers compensation system.
It is time for injured workers to be provided the benefits and other supports to which they are entitled, without having to litigate for it.
This is a modified version of an article appearing in January, 2021 in online publications including the Kelowna Capital News. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.