NEW DIRECTIONS: REPORT of the WCB REVIEW 2019

In March 2019, the Honourable Harry Bains, Minister of Labour asked long time advocate Janet Patterson to undertake a review of the workers’ compensation system in British Columbia with direction to assess specific issues. Janet conducted the review with extensive public engagement and consultation.

Her final report, New Directions: Report of the WCB Review was released in October 2019, together with her review and recommendations.

Although the paper addressed many problematic issues with the workers’ compensation system in BC, this submission will only deal with her specific recommendations regarding return to work and the duty to accommodate.

The Board’s Return to Work Policy and Practice

The Board’s general approach to RTW is set out in both the policy and practice for light duties (policy item #34.11 of the RSCM II) and the RTW practices after plateau.

1. For light duties, the Board intervenes only when there is a disagreement between the worker, their physician and the employer about light duties (#34.11). It refers to a temporary work alternative typically offered at or soon after an injury and often before a Board officer is involved.

2. If the Board is involved, the general approach does not specifically include consulting the worker in developing a RTW plan. Instead, the plan is developed by the Board and the employer according to certain criteria. If the worker refuses the plan, the issue is whether the refusal is reasonable. If the Board determines that the plan is not reasonable, the worker receives no further benefits unless the decision is changed on appeal. This is illustrated on the Board’s “Injury Management Road Map” is for employers to manage an injured worker’s RTW.93 The education materials are addressed to employers only, about how they may structure a RTW as a process independent of the Board.

3. If the worker is not able to return to the pre-injury employer (for whatever reason), a VRC typically gets involved after “plateau”.

This approach leaves RTW as primarily an employer exercise; the Board only enters the RTW arena when there is a dispute. Once the worker has RTW, the file is closed. This approach leaves the parties on their own, with little guidance and then is dispute and appeal oriented.

The Patterson Report recommended that the Board adopt recognized “best practices” RTW guidelines, principles and guidelines, especially for Light Duties.

Other recommendations for an improved RTW processes include:

• Provide support for employers to conduct accommodation assessments through NIDMAR;
• Establish a process for the Board to recognize established disability management programs;
• Amend the Act to recognize the employer’s Duty to Accommodate (DTA) based on the experiences and language of other jurisdictions;•
• Establish training for Board staff on DTA and disability management
• Amend the Act to provide for a specialized appeal process for DTA issues

Although we welcome many of the recommends provided by the Patterson Report including legislative amendments to address the specific problems regarding return to work in BC, we are cautious to not make the same mistakes that other Canadian jurisdictions have committed causing counter-productive results and attitudes. Careful consideration of the evolution of return to work programs, both successes and failures are essential to consider before enacting legislation.

Creation of an Employer Re-employment Obligation

History of Re-employment Under the Ontario Workers’ Compensation ActIn Ontario the passage of Bill 162, amendments to the Workers’ Compensation Act, in 1989 brought many changes to the workers’ compensation system. It was a time that employers in Ontario were complaining of the soaring compensation premiums, the medical community was opining that return to safe and sustainable work was the best treatment protocol and course of action for injured workers and human rights law was developing that affirmed that workers had a legal right to return to work after injury and before full recovery.

One of the more important changes was in the legislative creation of an employer’s re-employment obligations, the first of its kind in Canada. These obligations that employers were given towards their injured workers were originally contained in Section 54 of the Workers’ Compensation Act but subsequently relocated to Section 41 where the obligation resides today. The provision was limited in its application and equally complex in its practice.

Only employers who regularly employed 20 or more workers were covered and the obligation lasted only a maximum of two years. This was a far cry from the superior scope of protection under human rights.

However, the provision contained protections not available in human rights legislation. The first was that if a worker was terminated within 6 months of being re-employed, the legal presumption was that they were terminated because of their disability.

The second protection was that if a collective agreement provided better protection than the legislation the collective agreement prevailed. In human rights legislation, there is little consideration given about preserving the integrity of the collective agreement.

The re-employment provisions of the Ontario Workers Compensation Act also required the duty to accommodate (and it was explained that it was the exact same duty to accommodate i.e. up to the point of undue hardship) contained in human rights statutes.

In theory the re-employment obligation was proactive and should have resulted in drastic increases to successful return to work outcomes. It did not.

The blame for the lack of significant success was bestowed onto injured workers with the belief that injured workers were under motivated to return to work after injury and that a legal obligation was required to incent them to participate in return to work efforts. In 1998 through the passage of Bill 99, new obligations were created for injured workers to co-operate in return to work efforts and more obligations were created for the employer to also co-operate in the return to work process.

The obligations were to operate conjointly between the employer and the injured worker and the legislative obligations mirror each other for the most part.

Many provinces across Canada adopted the re-employment language of Ontario. Some provinces made a few strategic tweaks to the adopted language that may have influenced the positive success of the provision.

This submission will attempt to examine some of the flaws in key areas of re-employment obligations in other jurisdictions, both in the manner in which they are administered and interpreted, and in the manner in which the Act is drafted. This submission will suggest alternatives and solutions to these problems.

Section 41(2) of the Act outlines the Workplace Safety & Insurance Board (WSIB) obligation to make a determination with respect to a worker’s fitness. As a starting point in the legislation, the WSIB must determine whether or not that worker can return to work, and if so, the worker’s level of fitness. Subsequent to this determination the WSIB is required to give notice of their determination to the employer. The formal notice triggers the exact obligation of the employer.

If the worker is healthy enough to be able to perform all of the important functions of their job, that worker will be determined fit to perform the essential duties of the pre-injury employment. If the worker is not healthy enough to do this, but could perform some kind of lighter work, that worker will be determined to be fit to perform suitable work.

If the worker’s health status changes, or new facts about the worker are discovered, the Board must re-determine the worker’s level of fitness and adjust it accordingly.

In both of these cases, the employer has a duty to accommodate the workplace which must be examined when making the determination. In other words, if all that prevents an injured worker from being able to perform the essential duties of the pre-accident employment is an accommodation to the worksite such as the provision of an ergonomic chair or a lifting device, that worker will be determined to be fit to perform the essential duties of the pre-accident employment.

Once the determination is made, the Board must send notice of its determination to the injured worker’s pre-accident employer. Upon receipt of this notice, certain obligations are imposed on the employer. If the employer receives a notice that the worker is fit to perform the essential duties of the pre-injury job, it must offer the pre-injury job, or some comparable employment.

If the employer receives notice that the worker is fit to perform suitable employment, the employer must offer the first available suitable work that becomes available after the notice.

This process was one of the more controversial topics in the field of re-employment rights under the Act. The controversy stemmed from the fact that early decisions of the Ontario Workers’ Compensation Appeal Tribunal (hereinafter the “WCAT.”) indicated that if the Board did not make a proper determination, or did not send notice of this determination to the employer then there were no re-employment obligations placed upon the employer.

Subsequent cases refused to follow these early cases, and more appropriately the WCAT recognized that there was a general re-employment obligation placed upon the employer, whether or not the WSIB made a determination of the fitness of the injured worker.

Once a determination is made and the employer is given notice of this determination, certain obligations arise upon the obligation imposed upon an employer when the injured worker is fit to perform the essential duties of the pre-injury job is much stronger than the obligation imposed when the worker is only fit to do suitable work.

When a worker is fit to perform the essential duties of the pre-accident employment, the employer has no choice but to offer the worker the pre-injury job, or a comparable job.

While there may be some question as to what constitutes the pre-injury job, and what constitutes a comparable job, there is little question that the obligation imposed is absolute. The only defense that is given to employers for failing to offer employment in these cases is that the employer had just cause to terminate the injured worker prior to the accident.

The obligation imposed upon the employer when an injured worker is found fit to perform only suitable work is anything but absolute. The employer has to offer suitable work only if it becomes available. There is no requirement that the employer make suitable work available to the injured worker.

Given the nature of this obligation, in order for the injured worker to succeed in a re- employment application, the worker would have to show that the employer did not offer suitable work, and that the suitable work was available.

In a non-unionized environment, this second requirement places substantial evidentiary burden on the injured worker, since that worker would not always have access to information as to which suitable jobs became available, and when these jobs became available.

The limited obligation placed upon an employer when the worker is only fit for suitable work and the evidentiary problems that come with this are an unjustifiable weakness in the legislation.

The second flaw is the failure of the adjudicator to make the proper determination of level of fitness. Without the intimate knowledge of the necessary and essential tasks of the pre-injury job and the expert experience of how to accommodate those tasks, it is more likely than not, that the determination by the WSIB favours only a suitable work notice.

One of the fundamental purposes of the re-employment obligation is to encourage employers to return injured workers to work as soon as they are safely able. Having a dispute about the worker’s level of fitness stands in the way of re-employing an injured worker, and giving an employer technical defenses to its failure to re-employ an injured worker, seriously undermines the purpose of the re-employment obligation.

The Presumption and Just Cause

Subsection 41 (10) of the Act, in our opinion, probably the most controversial subsection of Section 41, states:(10) An employer who, having re-employed a worker in accordance with this section, terminates the employment within six months, is presumed, unless the contrary is shown, not to have fulfilled the employer’s obligation under this section.

The controversy stems from the fact that the section does not indicate what must be shown in order for the employer to rebut the presumption that the employer has not fulfilled its obligations under the Act. As a result of this, the WSIB and the WCAT have taken radically different approaches in deciding these cases.

The WSIB has taken the position that in order for an employer to rebut the presumption, it must be shown that the reasons for the termination are unrelated to the accident or the disability, and those reasons must give the employer “just cause” to terminate the employee.

The WCAT has expressly rejected that approach and has instead adopted a standard that makes it much easier for an employer to justify the termination of an injured worker; this test may be called the “non-discrimination” test. According to the WCAT the employer may terminate an injured worker within six months of re-employment if the true reasons for the termination have nothing to do with the accident, the claim for Workers’ Compensation, or the ongoing disability.

Probably the easiest and most sensible way to implement the just cause standard would be to redraft the section so that the test is explicit in the BC Workers Compensation Act. In other words, an employer would be presumed not to have fulfilled its obligations under the Act unless it can be shown that the employer had just cause to terminate the employee within six months of the re-employment.

The Effect of Caron on Workers’ Compensation

In recent years, there have been a number of decisions related to the obligations of employers in their management of employees on long term disability. Until recently, however, the interplay between the duty to accommodate and the obligations of employers under Workers’ Compensation legislation has left various Workers Compensation Boards unsure if the duty to accommodate extends beyond the employer’s legislated obligations regarding an injured worker returning to work.

The Supreme Court of Canada recently addressed the issue . The employee, Mr. Alain Caron, worked as a special educator at Centre Miriam. While on the job, Mr. Caron injured his left elbow. The day after the injury, his employer temporarily reassigned him as the team leader for the night shift. Mr. Caron spent over two years helping with the required paperwork and with training and supporting new and existing personnel on the night shift. His employer ended Mr. Caron’s temporary assignment when the process of transferring disabled persons in its care was completed. The employer determined that Mr. Caron’s disability made him unable to return to his pre-injury position, and subsequently indicated that it had no suitable employment.

The Act Respecting Industrial Accidents and Occupational Diseases governs workers’ compensation in the province of Québec. The Quebec Act outlines a number of benefits available to injured workers. Injured workers who are able to work within a certain period of time have the right to be reinstated to their previous position or given equivalent employment. If the injury precludes the employee from returning to their original position, they have a right to the first suitable employment with the employer. The employer determined it had no suitable employment and terminated the employment of Mr. Caron.

The issue before the Supreme Court of Canada was whether the employer’s duty to accommodate applies to workers who apply for and are granted workers’ compensation benefits. The Court ruled that all Québec legislation must be interpreted in accordance with the principles in its Charter. Since the duty to accommodate is a core principle of the Québec Charter, it follows that the duty applied to the interpretation and application of the Act.

The Court stressed that the relevant considerations in demonstrating the lack of reasonable or practical accommodations requires an individualized assessment.

The Supreme Court of Canada’s decision affirms,that human rights legislation, with specific reference to the duty to accommodate, supersedes any legislative requirements regarding a worker’s ability to return to work after injury. It simply is not enough for employers to comply with their respective Workers’ Compensation legislation. They must first and foremost satisfy the duty to accommodate.

Should a disparity exist between the duty to accommodate and the relevant Workers’ Compensation legislation, the duty to accommodate must be integrated into the interpretation and application of legislation.

Employers cannot rely on the determination of Workers’ Compensation Tribunals that they have complied with their statutory obligations to the employee to prove they have satisfied their duty to accommodate.

The duty to accommodate is broader than the obligations of re-employment set out in Workers’ Compensation legislation. Employers are required to meet an overarching set of obligations in the duty to accommodate that are often more expansive than the obligations imposed by the relevant workers’ compensation legislation. A more robust analysis of their accommodation efforts is required.

We state unequivocally that it is time for a re-employment obligation to be drafted into the workers’ compensation legislation of BC. Currently the WCB has no legal jurisdiction to enforce return to work and the duty to accommodate. At best they try to influence outcomes by educating employers of the financial incentives of returning injured workers back to employment before full recovery and providing financial disincentives to injured workers for not co-operating in return to work efforts and not accepting suitable modified duties. Human Rights legislation is a reactive mechanism that is only triggered by an offence of discrimination. The WCB can be proactive in facilitating effective return to work outcomes through the creation of an employer re-employment obligation.

RECOMMENDATIONS FOR A RE-EMPLOYMENT OBLIGATION
• Require all employers who regularly employ 20 workers or more to re-employ workers who suffer injury or illness that arises out of and in the course of their employment.
• Prescribe that the Workers Compensation Board will determine a worker’s level of fitness using the treating health care provider’s recommendations of functional abilities, restrictions and limitations. To determine the level of fitness (ie able to perform essential duties) the Workers Compensation Board shall use the expertise of a professional (ergonomist, kiniseologist etc) and the union where applicable, to determine accommodation options.
• Prescribes a duty to accommodate that mirrors the duty to accommodate under human rights legislation.
• Contains the provision that if a worker is terminated within 6 months of being re-employed the presumption is that they were terminated because of their injury.
• State explicitly that if a collective agreement provides better protection for an injured worker than the legislated provision then the collective agreement prevails.

CONCLUSIONS
In summary, USW Local 2009 welcomes the opportunity to provide further feedback in regards to the development of an Employer Reemployment obligation. We hope that the Ministry of Labour will appreciate the significant concerns for workers who are injured in their work. When injured workers are medically able to return to the essential duties of the jobs held at the time of their injuries, employers should be obligated to offer to reinstate the workers in their original jobs or in alternative jobs that are comparable in tasks and earnings to the original positions. The requirement to reinstate should include a duty to accommodate the worker to the point of undue hardship.
When injured workers are not able to return to their original jobs, but can safely do other work, employers should be obligated to offer their injured workers the first opportunity to accept suitable work that becomes available. USW Local 2009 continues to call on government to enact legislation creating a re-employment obligation on employers.

It is unacceptable that BC remains the only jurisdiction in Canada without a re-employment obligation. It is unacceptable that BC injured workers have to live in poverty after a workplace injury. Government cannot forget about the most vulnerable workers in our society, injured workers.

Although this submission is quite lengthy, there remains many more important considerations that should be addressed before implementing an Employer Re-employment Obligation.