Tuesday, August 15, 2017

Store design puts profit ahead of safety

Four workers sustained minor injuries on Saturday when several sets of shelves at a Windsor Plywood in Edmonton collapsed domino-style. The shelving units were six feet wide, up to 20 feet tall, and full of thousands of pounds of lumber. It is something of a miracle that no one was killed by the shelf collapse.

It is unclear what caused the shelves to tip over. One employee reported a worker had leaned a ladder against a unit, causing it to topple over and creating a cascading effect. I’m surprised this would cause a shelving unit to topple. Most shelves are bolted down. My first thought was a forklift error would be the only way to generate enough force to topple a shelf.

The employees told reporters that the shelves were not bolted to the floor. This is surprising given that the tipiness of shelving units is a well know hazard (hell, IKEA gives you anchors if you buy a bedroom dresser taller than three feet!). Dave Greenfield, the owner of the store, asserts the shelves were bolted down. Perhaps there were unusual circumstances at play (e.g., structural weakness plus the force of the ladder). We’ll have to wait (likely a year or more) for the OHS report to come out.

The media coverage focused mostly on the event and the proximate cause of the incident (i.e., employee on ladder). It is worthwhile giving some thought to the root causes of this incident. The crush hazard in this store was ultimately created by the employer’s decision to stack stock on high shelves (a common practice in DIY stores). 

The reason employers do this is to maximize their profitability: the entire store becomes retail space with excess stock stored above the shoppers and workers (instead of in a separate stockroom space). The risk this employer choice creates for workers (and shoppers) is (normally) attenuated by bolting the shelves down, restricting access to aisles when overhead work is underway, and providing appropriate training for workers using rolling ladders and forklifts to access the stock.

But none of these strategies would be as effective at reducing the risk of workers and shoppers being crushed to death as would limiting shelf height to six or eight feet. Employers, of course, aren't prepared to double their square footage to create an adequate stockroom space in the back of the store. And, in doing so, they choose to trade their workers’ health for greater profitability.

It will be interesting to see the OHS report and (depending on the facts) whether Alberta chooses to fine or prosecute the employer for their stocking practices.

-- Bob Barnetson

Friday, August 11, 2017

Labour & Pop Culture: Dump the Bosses Off Your Back

This week’s installment in Labour & Pop Culture features “Dump the Boss Off Your Back” by Utah Philips.

This is an old IWW song from a live album in 1984 (I think set to the music of “What a friend we have in Jesus”). There is a lengthy preamble that is worth a listen to as it identifies how blame of inequity is manipulated.

The lyrics are surprisingly direct (to my ears, anyhow) such as “All the agonies you suffer/You can end with one good whack”.

Are you poor, forlorn and hungry?
Are there lots of things you lack ?
Is your life made up of misery?
Then dump the bosses off your back.

Are your clothes all patched and tattered ?
Are you living in a shack ?
Would you have your troubles scattered ?
Then dump the bosses off your back.

Are you almost split asunder?
Loaded like a long-eared jack?
Boob - why don't you buck like thunder,
And dump the bosses off your back ?

All the agonies you suffer
You can end with one good whack
Stiffen up, you orn'ry duffer
And dump the bosses off your back.

-- Bob Barnetson

Tuesday, August 8, 2017

Research: Safety audits don't predict injury

An interesting new article out of Ontario has appeared in the Journal of Safety Research entitled “Developing leading indicators from OHS management audit data: Determining the measurement properties of audit data from the field.”

The crux of the article is that OHS safety audits (which are a tool used in Alberta) don’t have much ability to predict future workers’ compensation claims (claims being a proxy for injury).

Safety audits have long been mooted as possible leading indicators of occupational injuries.
An OHS management audit is used to evaluate the state of a workplace's management structure and processes related to OHS. It determines whether an organization is conforming with a particular standard, such as its own policies and procedures, applicable legislation and regulations, or another standard external to the organization (p.2)
The author’s key hypothesis was safety audit compliance should be inversely related to workers’ compensation lost time claims. Basically, higher compliance scores on the audit should make workplaces safer and thus lower the rate of serious, compensable injuries.

Most of the firms in the sample had very high audit scores. This, the authors suggest. May be an indication of auditor bias towards passing firms (in interesting finding in itself).

The most interesting finding was that, overall, there was no statistically significant relationship between audit scores and claims records (although with enough parsing of the data some relationships could be found). The authors moot that the most likely explanations for the lack of a relationship were “audit score is reflective of recent preparation for the audit and not of true implementation, and… annual claim count data have a large amount of measurement error” (p. 9).

This reflects my own suspicion that safety audits are basically paperwork exercises that have little effect on actual operations and that claims data is an inadequate measure of injury. The upshot is that OHS audits do not, at present, show much hope as leading indicators and should not be viewed as meaningful measures of organizational OHS performance.

-- Bob Barnetsona

Friday, August 4, 2017

Labour & Pop Culture: 1632

This week’s installment of Labour & Pop Culture examines the novel 1632 by Eric Flint. Last fall, Mark McCutcheon and I published an article about the absence of trade unions in science fiction and this is last of the examples of unions I sci-fi that I’ll delve into.

In 1632, Flint throws a small modern–day Appalachian mining town back in time to the middle of Europe’s 30 Years War. A historian and labour activist, Flint gives the local chapter of the United Mine Workers of America (UMWA) an important political role in the story—providing an organizing structure, principles and leadership cadre as the characters cope with the violent and autocratic world they face.

The selection of an emergency management committee pits former CEO John Simpson against local union leader Mike Stearns:
He [Mike] forced Simpson away from the microphone with his own equivalent of assertive self-confidence. And if Mike's aura carried less of authority, and more of sheer dominance, so much the better. 
"I agree with the town council's proposal," he said forcefully. Then, even more forcefully: "And I completely disagree with the spirit of the last speaker's remarks." 
Mike gave Simpson a glance, lingering on it long enough to make the gesture public. “We haven't even got started, and already this guy is talking about downsizing.” 
The gymnasium was rocked with a sudden, explosive burst of laughter. Humor at Mike's jest was underlain by anger. The crowd was made up, in its big majority, of working class people who had their own opinion of “downsizing.” An opinion which, unlike the term itself, was rarely spoken in euphemisms.
The displaced mining town introduces several democratizing strategies to the early modern society in which it finds itself, strategies like “committees of correspondence” that disseminate democratic principles and distribute social services such as food, education, protection to citizens in adjacent cities, thus creating a democratic insurgency in otherwise autocratic states.

While 1632 frames unionization as a way to democratize society by undermining existing power structures and hierarchies, the ultimate goal of these actions is to facilitate a transition to industrial capitalism to bolster Grantville’s sole strategic advantage in the 17th century. In this way, the progressive social role of unionization identified with enlightened modernity (not to mention American patriotism). Alternative forms of organization (such as co-operatives and credit unions) are hardly mentioned anywhere in the book series and only in passing.

1632 creates an alternative universe wherein trade unions are considered normal and undertake constructive, progressive social functions: the democratic principles and processes that underlie trade unionism become a model for democratizing an autocratic society. That said, 1632 valorizes an avidly capitalistic future, as if capitalism remains an important precondition for political democracy. All Flint’s characters ultimately seek to achieve is to make the political economy of the 17th century world in which they find themselves more amenable to 20th-century middle class values.

You can get a free e-book copy of 1632 on the publisher’s website.

-- Bob Barnetson

Tuesday, August 1, 2017

Presentation: Pushing back: How to make Alberta workplaces safer

Anybody seen my hair? Can you check under your tables?
On April 28, I had the chance to make a presentation that Jason Foster and I wrote to 250 OHS delegates at AUPE’s occupational health and safety conference. Attached below is the text.

Pushing back: How to make Alberta workplaces safer
AUPE Occupational Health and Safety Conference, April 28, Edmonton
Jason Foster and Bob Barnetson

You’ve all probably seen a swing-stage scaffold. It's that big long metal platform that they hang over the side of tall buildings when they are washing windows or replacing them. It’s got the ropes and pulleys on either end and usually a little motor and goes up and down?

So it’s Christmas Eve, 2009. And there are six workers repairing balconies on a Toronto high-rise. The men are all newcomers to Canada—from Latvia, Uzbekistan, and Ukraine. And they don’t speak much English. The project supervisor is Vadim Kazenelson. He was on one of the balconies handing the workers tools.

There were only two lifelines on that scaffold. And only one worker was tied off. For some reason, Kazenelson jumped from the balcony onto the scaffold. And the impact caused the scaffold to split in two. Kazenelson managed to climb back onto the balcony. And he pulled up the one worker who was wearing a lifeline.

The other five workers fell 13 stories—more than hundred feet.

Four died. And one was permanently and horrifically injured.

The OHS investigation that followed revealed that the scaffold was faulty. It hadn't been designed or inspected properly by the scaffolding company. And the workers—remember, they didn't speak much English—hadn’t been trained on working at heights or the use of fall protection. And, even if they had, the employer didn’t bother supplying enough lifelines.

During the investigation, Kazenelson tried to cover a lot of stuff up. He gave the worker who was tied on an English-language safety manual (he didn’t read English) and told him to say that Kazenelson had been on the ground when the scaffolding broke.

Six years later, in 2015, prosecutions in the case finally wrapped up. The scaffold supplier got dinged $400k. The construction company employing the men was fined $750k. And Kazenelson got three-and-a-half years in jail.

This case is one of the few instances I’ve seen where a workplace injury resulted in a successful prosecution and jail time. Despite that, I mostly think of this case as an example of how the health and safety system is a failure.

Anyone want to guess why we think the case is an example of a failure?

In my view, the system clearly punished the employers. But mostly the punishment was monetary---and employers treat that as the cost of doing business. The one guy who got jail time was the lowest-ranking supervisor. But, most importantly, the system failed to prevent injury and death. And that’s the actual purpose of an occupational health and safety system.

So you often hear about how Alberta workplaces are getting safer. The injury stats that these claims are based on are deceptive. Employers and governments normally use lost-time claim rates as their main measure of injury. A lost-time claim is an accepted WCB claim where a worker could not go work the next day due to an injury and got wage-loss benefits from the WCB.

Over time, we’ve seen the number of lost-time claims drop significantly. But it’s not clear if that reflects safer workplaces or employers gaming the system—perhaps by pressuring workers not to file claims. Because that lowers employers WCB premiums.

A further problem with lost-time claims is that they only record a small fraction of all injuries. It ignores injuries not accepted by the WCB. It ignores injuries where the worker could go to work but had to have modified duties because they were hurt. It ignores injuries that required a trip to the doctor, but no time off. It ignores all minor injuries and most occupational diseases. And it ignores any time-loss injury that should be reported but wasn’t—which might be 40-70% of all injuries.

Setting aside those concerns about the validity the lost-time claim measures, they still shows us there were 25,000 serious injuries in Alberta last year—injuries so serious that the worker couldn’t go to work the next day. And that tells us that Alberta workplaces are really dangerous. And it also tells us the government’s injury-prevention system doesn't really work: 25,000 serious injuries a year is a catastrophe. There is no other way to view those numbers.

So why is the OHS system broken? Well, the bottom line is it’s designed to fail. The current system is 46 year olds—the same age as me! It started in Saskatchewan in 1971 and was built by Bob Sass. Alberta followed suit in 1973.

The crux of the internal responsibility system is the three safety rights: the rights to know, participate, and refuse. These rights were seen as a huge victory for workers in the 1970. Because, for the first time, they gave us some real ability to address deeply unsafe workplaces.

As a result, workplaces today are safer. There are fewer worker deaths per capita today than there were in the early 1970s. Mind you, we’re still killing the same number of workers each year—there are more workers to spread the deaths across.

The key question we should ask is whether today’s workplaces are safe enough? And 25,000 lost-time claims we saw last year suggests the answer is no. And the reason for this is that the designers of the IRS system made two mistakes that undermine the system’s potential to make workplaces safe.

The first problem is that the system downplays the significance of the power imbalance at work between workers and employers.

The second problem is that the system ignores the motivation and ability of employers to thwart the efforts of workers to make their workplace safer.

Basically the IRS system was designed with the idea that both employers and workers have an equal interest in keeping workers safe. As it turns out, workers are much more interested in safe workplaces than employers are. But workers have much less power to do anything about that than employers do.

Now, don’t get me wrong – I’m not saying employers are going out, happily hurting their workers. They are human, too, and don’t want to see anyone get hurt. The problem is that employers have other priorities that distract them and shape their decisions about safety.

In the case of private-sector employers, their interest is in profit and productivity. Employers have to profit and fail. And they try to shift costs away from their business. For the public sector, it is productivity and the ongoing pressure to keep costs down so politicians can keep taxes down. These priorities shape how much safety employers want to pay for.

This design flaw has real consequences. For example, we have performed relatively better on acute safety issues over time – preventing slips, falls, that kind of thing. However, we have made absolutely no progress at all on preventing occupational disease.

That’ s because acute injuries have an immediate cost for employers: lost productivity and higher WCB premiums. By contrast, occupational diseases don’t affect employers. Symptoms can take decades to appear. When they do, the workers who are affected are long gone.

In fact, employers are motivated to resist fixing things that cause disease, like exposure to carcinogens, because the fix is usually more expensive for the employer than letting workers get injured. Eliminating hazards or segregating workers from hazards is costly.

So, in practice, employers usually address biological or chemical hazards by equipping workers with personal protective equipment (PPE). PPE is demonstrably less effective at protecting workers than other controls. So why use PPE? Because it’s cheaper. For employers.

Employers’ have also tried to make the system work in their favour by changing the rules of the game. In the 1980s, the governments were pretty active at enforcement—much to the annoyance of employers. And in the 1990s, employers started a vigorous campaign to roll back enforcement. And Ralph Klein was right their with budget cuts to help them. And suddenly we were “partners in safety”, except it was an abusive, one-sided relationship.

The upshot is that today we have about 130 enforcement officers – AUPE members who care a lot about their jobs and the 10,000 inspections they do every year. The problem is that we have 150,000 or more employers in Alberta. So the inspection cycle for your average workplace is once a generation or less. The result is that only the worst and most obvious hazards are dealt with and most employers can do whatever they want. Unless you kill or maim a worker, its unlikely you’ll ever see an OHS inspector on your job site.

Employers have also used their power and influence to shape the nature of OHS regulations. And they use their power in the workplace to curtail worker efforts to do more about safety. So, workplaces are safer now than they were – no question – but they are not safe.

So how do employers get away with that? An important tactic they use is to blame workers for their injuries. This idea that workers are stupid or lazy or careless is everywhere—even in government injury prevention materials. It focuses our attention on workers’ behaviour and the proximate (or immediate) cause of an injury. In doing that, it obscures structural factors that are the root (or real) cause of injury.

Basically, the careless worker myth renders invisible how employers contribute to injuries by designing job to include hazards.

This is a 2008 video the government produced aimed at young workers. There are six of these—we’re going to watch the shoe-store video. It is a touch gory but not too bad. But if that freaks you out, just avert your eyes for 90 seconds. Don’t worry if you can’t hear the audio—just watch the video and story it tells. And ask yourself who is at fault for this injury? And how it could have been prevented?

The message here is pretty clear: the worker wore unsafe shoes, climbed a rickety ladder, over-reached, and fell. What a dummy. Now let’s watch the video again and ask yourself what could the employer have done to prevent that injury. Anyone have some ideas?
  • Ladder: Ladder was employer-supplied equipment that was clearly defective. Employer should have identified this hazard and replaced it. $100 fix
  • Light fixture: Light was unguarded and vulnerable to breakage. Employer should have caged it. $20 fix
  • Stock room: Stock was stacked up high and unstable. Employer likely needed a bigger stock room to lower the stacks and maybe also better shelving. Both of those are costly fixes and trading retail space for stock space reduces sales.
  • Clothing: Worker works in a shoe store so likely faces employer pressure to wear fancy shoes. She’s not going to keep the job if she’s wearing flats with a ladder-safe tread. So the employer could have mandated safer shoes or prohibited ladder work on heels.
  • Working alone: We don’t see this hazard clearly but this worker is likely working alone. So she is vulnerable—if she gets hurt there is no one to call for help and she may also be at greater risk of robbery or assault. The employer should double up staffing. But that doubles labour costs. And tin the minds of employers, that’s “not reasonably practicable”.
The key lesson of the video is that the focus on worker behaviour is so pervasive that even the government blames workers for injuries. The role of employers in causing injuries is rendered invisible. Videos don’t have to be this way. Here is a short Ontario video that covers the same ground:

Note the questions that the injured worker asks about how her employer could have prevented the injury. This video preceded the Alberta video and it shows you how hard Alberta worked to incorporate blaming the worker into its videos.

So this is a pretty gloomy presentation so far! Let’s change tracks and focus on what we can do to make workplaces healthier and safer. The solution starts in the past. We need to take back OHS as a bargaining issue, as an activism issue, and as a political issue.

The laws of the 1970s didn’t just come out of nowhere. Part of the history that I left out – and is usually left out – is that the 1960s were marked with strikes – in some cases wildcats – over safety. Rank and file workers knew work was killing them. Their employers were killing them. And they mobilized to force their employers to do something about it. In Canada, Elliott Lake is the example to look up.

Their unions were, at first, reluctant to do that. But, as Ralph said, smart politicians figure out where the parade is going and get in front. And the unions eventually got on board and started agitating governments for legal changes. That lobbying and pressure resulted in OHS laws and the system we have today. Which aren’t perfect but are agood start.

The problem is that we thought we had won. When really things had just gotten started.

Over the last 40 years, we’ve allowed OHS to become professionalized. There is an entire industry of consultants, safety officers, and technical experts who have emerged to show us how to “be safe”. And a good portion of work is about shifting blame and responsibility from employers—where it belongs—onto workers.

Even in our unions, we’ve delegated safety to a sub-set of our activists and staff. They are without a doubt committed, dedicated, smart people. But they are often left to do their “safety thing” in the corner.

The answer to this is that safety has to become an issue for all of us. And I don’t mean we all have to make sure we work safely – although we do. I mean that agitating and advocating and arguing and fighting for safety needs to become something we all do.

You don’t need to know how to calculate load ratings for harnesses. Or what the toxicological reports say about a chemical. Or the physiological effects of shift work.

You just need to know EVERY job has dangers. And that more can be done to remove those dangers. And then we need to have the determination to work with our co-workers and union brothers and sisters to force the employer to do more.

It is about organizing. And to be honest, that is the only way any worker issue will get fixed. Ever. The clear lesson of labour history is that employers don’t give shit about you. They don’t. So we need to shift the power balance at work so the system works the way Bob Sass intended. And that takes all of us.

Now people—very powerful people—aren’t going to like that.

Think back to the 2013 jail-guard wildcat. There were a lot of issues there, but that was a safety strike. The government came down hard—in part because the escalation of the wildcat strike profoundly challenged the government’s authority.

If the government had gotten a court and directed cops to arrest jail guards and court house staff and the cops had refused, the government would have effectively lost control of the province. That shit makes governments—especially authoritarian governments like the Tories—very angry and very scared.

And, job actions like that also make unions nervous. Union executives don’t like real wildcat strikes because its shows that they don’t have control over their members. Phony wildcats are totally cool. But real ones hints that the exec are in the wrong side of an issue.

Think back to the 1995 laundry worker’s strike in Calgary. That resistance to the Klein cuts got squashed, in part, by the union leaderships. Because an all-out fight wasn’t want the union leadership wanted. In retrospect—as a civil servant—an all-out fight might have been a good thing. Cause the last 20 years have sucked.

It also takes time to build organizational commitment to things like workplace injury. Most of us don’t really want to think about it. It is really uncomfortable to realize that our employer might well be poisoning us. Or exposing us to dangers that could kill us. Or are happy to have managers bully us into working harder. Because how do we fight back? Do we refuse unsafe work? In theory ,the employer can’t punish for that. But the reality is that refusing is a career-limiting move.

One place to start is organizing within bargaining units and work groups around health and safety. Maybe identify a safety issue that is easy for the employer to fix: loose carpet, uncomfortable temperature, noise, lighting.

Ideally you want an issue affecting a popular worker (or everyone) and you wanna have a sympathetic manager. Then build some support for the issue among the work group. Then politely confront the manager with both the problem and the solution. Or, better yet, get the workers to make the pitch.

The report the win back to the workers. A win helps build confidence and commitment. Then pick a harder issue and repeat.

Eventually, the employer’s gonna push back. But, by that time, workers will be used to winning. And they’ll have internalized the ideas that they have a right to a safe workplace and that they have collective power. That’s the time for an escalation: maybe threaten to call OHS or take some very minor job action.

Bringing an issue up every single day, that’s really disruptive. And its upsetting to employers because it confronts them with the fact that they are acting immorally. This isn’t some regulatory violation. They are threatening our health and our lives and that wrong.

Or have the workers do a safety audit. There’s lots of things you can do. The point is to have a plan. Because what you’re building is a culture of injury prevention and empowerment in the workforce—one that’s separate from the tedious management safety crap that we normally have to endure.

This culture is contagious—especially if you start claiming the victories in meetings with other work groups. It builds the kind of support needed for pushing a bigger issue, like a harassing manager or structural hazard.

I think I’m going to stop here and open up the floor. Anyone have experience about improving safety they want to share--a success or a failure. Or maybe you think I’m full of crap and wanna have go? I’m up for that.

-- Bob Barnetson

Friday, July 28, 2017

Labour & Pop Culture: Manic Monday

This week’s installment of Labour & Pop Culture is “Manic Monday” by the Bangles. Written by Prince, this song chronicles the life of working woman who wakes up Monday morning and wishes it were still the weekend.

You can see why. She has a long commute to work and, as we see near the end of the song, she’s paying the freight for both of them while he is unemployed and depressed about it.

Perhaps not the deepest song ever written about employment. But it captures the sense of work as a treadmill that we might prefer to step off.

Six o'clock already
I was just in the middle of a dream
I was kissin' Valentino
By a crystal blue Italian stream
But I can't be late
'Cause then I guess I just won't get paid
These are the days
When you wish your bed was already made

It's just another manic Monday
I wish it was Sunday
'Cause that's my fun day
My I don't have to run day
It's just another manic Monday

Have to catch an early train
Got to be to work by nine
And if I had an air-o-plane
I still couldn't make it on time
'Cause it takes me so long
Just to figure out what I'm gonna wear
Blame it on the train
But the boss is already there

It's just another manic Monday
I wish it was Sunday
'Cause that's my fun day
My I don't have to run day
It's just another manic Monday

All of the nights
Why did my lover have to pick last night
To get down
Doesn't it matter
That I have to feed the both of us
Employment's down
He tells me in his bedroom voice
C'mon honey, let's go make some noise
Time it goes so fast
(When you're having fun)

It's just another manic Monday
I wish it was Sunday
'Cause that's my fun day
My I don't have to run day
It's just another manic Monday
I wish it was Sunday
'Cause that's my fun day
It's just another manic Monday

-- Bob Barnetson

Tuesday, July 25, 2017

"Culture of denial": Alberta's workers' compensation review

In early July, the government released the final report of Alberta’s Workers’ Compensation Review Panel. The central message of the review is that the Alberta WCB has drifted away from doing right by workers. For example, the panel notes:
…the WCB can be overly efficient, and tends to manage the claim in aggressive accordance with strict rules, even when the resulting decisions fly in the face of common sense. This raises frustration among workers and employers alike and it contributes to a perception that the WCB has a “culture of denial” (p.8).
The panelists don’t explain what has motivated the WCB to act this way. My belief is that the WCB has been trying to navigate both political pressure and its legal obligations.

Beginning in the early 2000s, employers and the former Tory government pressured the WCB to minimize the cost of injury to employers. The WCB was then compelled to find to legally defensible mechanism by which to achieve employer premium reductions. The result is a system of policies and practices that seek to minimize benefits to workers and manifests itself as a culture of denial. This is most visible in the experiences of injured workers.

The panel makes a number of recommendations designed to increase the perceived and actual fairness of the WCB. Recommendations of particular interest to injured workers include:

The panel recommends establishing an independent ombudsperson office (Fair Practices Office) to monitor and address the procedural fairness of the WCB system to address concerns that the WCB treats workers unfairly. In addition, the existing appeals advisor office would be carved out of the WCB and located in the Fair Practices Office and would provide assistance to workers and employers.

The panel recommends that, while a worker is appealing a claims decision, the worker should be entitled to apply for relief of any benefit loss. This recommendation is designed to reduce the negative impact of erroneous decisions on workers’ lives.

The panel also recommends implementing a roster system for independent medical examinations (IMEs) here the worker chooses the IME (not the WCB). This should reduce the sense that the fix is in when the WCB sends workers for an examination to resolve a medical question about a claim. And the panel recommends changing the role of WCB-employed medical consultants to attenuate conflicts between treating physicians and the consultants.

The panel also recommends the WCB educate doctors and other medical professionals about the WCB in the hope that this will reduce the reluctance of medical professionals to engage with the system. This recommendation seems a bit Pollyanna because it assumes the root problem is ignorance by medical professionals, not their consistently poor treatment by the WCB.

The panel recommends workers be allowed to select their own treatment providers (beyond their own physician). The panel also recommends the WCB stop its cookie-cutter approach to treatment limits. For example, the WCB limits physiotherapy to six weeks based on medical literature that suggests most patients make a maximum recovery after six weeks. This limit means that: (1) workers who require more than six weeks of treatment are refused necessary treatment while (2) other workers are pushed through treatment too quickly, creating the potential for additional injury.

The panel recommends creating an obligation on employers to assist injured workers to return to work. This is intended to address the moral hazard faced by employers who may wish to evade their duty to accommodate injured workers. This recommendation contains some notable carve outs around employer size, employee tenure, and duration of the obligation.

The panel recommends that when the WCB deems a worker to be employed for the purposes of determining the workers’ wage-loss entitlement, that the WCB should use data that reflects the jobs a worker can realistic acquire and perform give the labour market and the worker’s skills and restrictions. That the panel would make such a recommendation gives weight to concerns that deeming decisions are often illegitimate and designed to reduce employer claim costs. The new deeming process will also contain a way for workers to better understand and contest the WCB’s deeming order.

The panel recommends the development of an ongoing process by which certain diseases can be granted presumptive status. The current process (which sets these out in Regulation) has meant that the list of diseases with presumptive status reflects the state of medical knowledge in about 1982 (with some recent legislative exceptions won for workers in more “heroic” occupations).

The panel also recommended that the WCB review the threshold test for compensability for some injuries (e.g., chronic onset stress) to determine if requiring work being the predominant cause is too high a bar (effectively creating two classes of injured workers).

The panel made a number of other recommendations about the WCB system. It declined to address the wage-loss replacement rate (currently set at 90% of net earnings). The panel did recommend temporary (and tapering off) increases in compensation for workers earning above the maximum insurable earnings of $98,700 (in 2016).

This is a strange saw-off in that it benefits the highest-earning injured workers (by giving them additional wage-loss compensation, albeit for a fixed term on a tapering system) while continuing to penalize the lowest-earning injured workers (who only get 90% of their net earnings as benefits). This might be a recommendation for the government to amend when it issues a response this fall.

The panel also recommended the WCB stops its practice of distributing surpluses from the accident fund to employers. The panel helpfully clarifies that these distributions are not “over-paid premiums” but rather reflect investment earnings. The panel suggests this money should be retained by WCB and used to fund things that make workplaces safer and compensation more just.

The panel kicked the issue of premiums and rate-setting down the road, recommending further study (perhaps along the lines of the principles set out in Ontario’s Stanley Report). The panel declined to recommend dispensing with experience rating altogether, but suggested that the current process may too heavily weight firms’ individual claims records.

The panel’s decision to not recommend the elimination of experience rating boils down to (1) many factors beyond experience rating contribute to claims suppression behaviours and (2) experience rating creates an incentive for employers to reduce injury rates.

While the panel’s first assertion is true, it should also be noted that experience-rating intensifies employers’ incentive to suppress claims and thereby externalize injury costs. Maintaining this arrangement is bad public policy (“Well, they’re gonna dump mercury in the river anyhow, so what can you do?”).

The panel’s second assertion assumes that experience rating results (at least to some degree) in a reduction in injury numbers and safer workplaces. There is little evidence to support this putative effect, which seems to be the only argument for retaining experience rating. Perhaps the limited utility of (and significant downside to) experience rating will become clearer in further study.

An interesting omission here is the absence of any gender analysis around the functioning of WCB or its outcomes. Perhaps such an analysis awaits the government's response to the report in the fall. For example, the government might examine whether pregnant and nursing mothers ought to have access to workers' compensation if their employer declines to reassign them when their work poses a hazard to their pregnancy or child (as Quebec does).

Overall, this report offers a much-needed review of the system and makes sensible recommendations. I expect the senior leadership of the WCB will find the report discomforting since it suggests (however diplomatically) that management decisions have given rise to many of the WCB’s current shortcomings. Many of the current executives are long serving and I wonder if we’ll see some change at the top over the next year or so.

-- Bob Barnetson