Alberta WCB review foreshadows worse compensation for injured workers

Alberta is consulting about changes to the Workers’ Compensation Act, putatively in response to stakeholder concerns about 2018 changes made by the NDs. The UCP government is examining worker benefits, return to work, how to distribute any surplus in the accident fund, and a significant number of issues related to governance and processes.

The survey foreshadows some changes:

• Maximum insurable earnings: In 2018, the maximum insurable earnings cap was removed. Previously, injured workers would get 90% of their lost wages up to a cap of about $100k. The UCP seems to be looking at the return of a cap, which will negatively affect injured workers with high incomes.
• Inflation: Presently, benefits are indexed to Alberta’s consumer price index to offset the erosive effect for inflation. The UCP appears to be suggesting CPI minus 0.5% is appropriate to account for “measurement error” in CPI. Under-adjusting benefits for inflation will particularly harm workers with long-term or permanent wage loss.
• Presumptive status for psychological injuries: Presently psychological injuries that occurred at work due to traumatic events are presumed to be compensable unless proven otherwise. Presumptive status exists because proving causation is often difficult with non-acute physical injuries resulting in work-related injuries going uncompensated. I expect we’ll see traumatic psychological injuries no longer being deemed as compensable.
• Maintaining health benefits: Employers are required to maintain workers’ health benefits for up to a year if the worker is on WCB. Since this requirement as implemented, eight employers have found to have violated the requirement. The UCP seems to be flirting with allowing employers to cut workers and their families off from things like dental and vision and drug care when workers are injured (and experiencing an income drop). This seems terribly cold hearted.
• Interim relief: Workers can presently apply for interim relief to avoid financial hardship while the appeal a decision (generally to cut off their benefits). The UCP is asking if this is really necessary. Such relief is necessary to avoid injured workers being unable to make rent or feed their kids. Jesus Christ, already.
• Reinstatement: Workers have a right to reinstatement to this job at time of injury for 12 months after an injury. Employers refusing to reinstate or terminating a worker without reason is presumed to be retaliatory and penalized. This 2018 change was made because employers would often refuse to reinstate and efforts to pursue duty to accommodate cases through human rights was an ineffective remedy. The UCP appear to be considering returning things to 2018, where employers could basically dump injured workers with no consequences, although this exception may be limited to small employers (who comprise the vast majority of employers in Alberta).
• Termination on modified work: Presently, injured workers who get fired while on modified work, are returned to compensation (since they still have an injury-related wage loss). “Stakeholders” (i.e., employers) want these workers cut off WCB benefits, likely to reduce employer claims costs (which drive premiums). The courts say such a proposal is not cool, so why is Alberta exploring this?
• Accident fund surplus distribution: The WCB needs to maintain an accident fund with enough dosh to cover the current and future costs of current injuries. The accident fund is funded by employer premiums as well as returns on investments made by the WCB (since the fund has a lot of cash sitting in it). Sometimes, the fund is in surplus. When the fund is at 114% of estimated total liabilities, it is considered to be fully funded (this gives some slippage to cover injuries that occur today but are not yet recognized, such as diseases). When the accident fund is at 128% funded, the excess is used to fund safety and disability management work. Some of it can also be distributed to employers (although there have not been any distributions since 2017 since the find has not been in surplus). The UCP seems to be considering ways to restart employer distributions by lowering the thresholds for fully funded and/or for distributions. This has the potential to allow today’s employers to foist injury (specifically disease) costs onto tomorrow’s employers.
• Shorter appeal timelines: Presently, worker have two years to file an appeal of a decision. This two-year period reflects that may appellants are not sophisticated and may also be dealing with the effects of an injury. The UCP appears to be looking at shortening the timeline to one year. There is no indication that extending the timeline to two years (in 2018) resulted in any negative effects. Solving a non-problem in a way that will reduce worker access to appeals seems dumb.
• Benefit of the doubt: Where the evidence in a WCB matter is approximately equal, the Act gives workers the benefit for the doubt (i.e., is applied in the workers’ favour). This reflects that the point of workers’ compensation is to compensate workers, not to split hairs and screw them when the facts are a bit uncertain. The UCP is soliciting ideas about how to change this; the resulting suggestions are almost certain to result in worse outcomes for injured workers.
• Occupational disease review committee: The Regulation sets out certain occupational disease that are granted presumptive status (i.e., if you worked in the industry and get the disease, you get compensation). Prior to 2018, the list of diseases had basically been left unreviewed for 35 years (excepting some additions around firefighter cancers). In 2018, a periodic review process was established. The UCP is now asking if that is necessary.
• Physician choice: If the WCB requires a worker to undergo an independent medical exam, the worker chooses a doctor from a list of specialists maintained by the WCB. The UCP is proposing eliminating the workers’ option to choose in order to speed things up. Oddly, the WCB reports that 93% of workers choose a doc as soon as the decision is put to them and, for the rest, the 1-3 days they take to make a choice does not delay the assessment (because of how booking occur). So, again, we have the UCP trying to solve a non-problem at the expense of workers.
• Lost-time claims: Some employers are seeking the option of paying the first 2 or 3 days of a workers lost time (instead of it being paid through the WCB) in order to avoid a lost-time claim that will affect their ability to bid on projects. Changing the legislation to accommodate bad screening practices in private-sector bidding is crazy and opens up more room for employers to suppress injury claims than already exists. This change would also disproportionately benefit employers with the worst lost-time claims records by effectively allowing them to hide these injuries through direct pay and then moving them to modified work (whether real or bogus).
• WCB Board members: In 2018, the WCA was changed to require the government to appoint members of the workers’ compensation board from separate lists of people nominated by unions, employers, and the public. The UCP is suggesting this is unduly restrictive. About the only thing this requirement restricts is patronage appointments of unqualified or partisan members.
• WCB Reviews: In 2018, a legislative requirement for periodic reviews by committees comprising stakeholder representatives were enacted. The UCP appears to be considering eliminating the need for commissioners to be nominated by stakeholder communities. This is a terrible idea and will lead to stacked panels. How would the UCP have reacted if the previous WCB review was staffed entirely by union types?

Overall, this consultation looks designed to rollback important changes to the WCB that the NDs made. The foreshadowed changes will benefits employers and harm workers. This consultation is open until August 10.

-- Bob Barnetson