By Kevin Love, Community Law Program Lawyer

The Ombudsperson has released a distressing and disturbing report chronicling how mistakes and mistreatment within the workers compensation system caused an already injured worker to suffer further catastrophic injuries. “Severed Trust: Enabling WorkSafeBC to do the right thing when its mistakes hurt injured workers” describes how a worker who had already lost the tips of four fingers in a saw accident was wrongly forced back to work. The result? Another accident in which this worker lost three fingers, his thumb, and suffered other catastrophic tissue and bone damage to his hand.

This worker’s tragedy is intensified by the response – or lack of it – from the government to the Ombudsperson’s recommendations. In what has become an unfortunate pattern, the government has stubbornly refused to implement recommendations to fix the WCB system.

The devastating injuries noted in the Ombudsperson Report may be unusual. But the underlying problems that caused them to occur are all too common. The Ombudsperson Report notes:

  • Medical evidence from the worker’s doctors was ignored or misinterpreted;
  • The worker was forced back to work when he was clearly not able to do so;
  • Without benefits, the worker was forced to choose between homelessness and returning to a job he could not safely perform;
  • Barriers in the system prevented WorkSafeBC from correcting the situation;
  • The worker spent years languishing in the convoluted WCB appeal system;
  • The worker got nothing to reflect the years of pain required to sort out his claim; and
  • The worker was initially not even dignified with an apology.

These problems are eerily similar to the problems noted when the government hired respected lawyer and workers compensation expert Janet Patterson to review the workers compensation system. Ms. Patterson’s report “New Directions: Report of the WCB Review 2019” describes the problems as follows:

Complex injuries often resulted in multiple decisions and a procedural complexity that defeated many [workers]. In addition, many individuals, workers and employers, stated that they were not treated respectfully, that the Board was hard to communicate with and that the Board did not investigate or consider their evidence in decision-making. There appears to be almost no effective remedial avenues for stakeholders or individuals, especially injured workers.

Board decisions on medical issues were an area of particular conflict. Many felt that seriously injured workers were pre-maturely “plateaued” and forced back to work, only to experience reinjury or further disability. Both workers and employers are highly dissatisfied with the Board’s approach to Light Duties and the availability or reliability of medical evidence in such cases.

New Directions goes on to note:

Many medical and treatment decisions are taken out of the hands of the worker’s health professionals and put in the hands of either a [Board Medical Advisor], who does not see the worker or a case manager, who has no medical training. The approach often forces workers to choose whether to attend treatment programs or [return to work] against the advice of their doctor or to lose the Board’s financial support while healing and/or appealing. Neither path is conducive to maximum recovery.

New Directions then makes recommendations to fix these problems. And like the recommendations in the recent Ombudsperson Report, they have been largely ignored.  New Directions makes no less than 18 recommendations directed at fixing the Board’s return to work process.  It also recommends that:

  • WorkSafeBC be given a broad power to reopen decisions in order to get the decision right without forcing the worker to languish for years in the appeal system;
  • Workers receive interest on any benefits that are wrongly denied for more than 180 days;
  • WorkSafeBC stop using the speed of return to work as key performance indicator;
  • better policies and practices be developed to ensure quality decision making based on the evidence;
  • an independent Fair Practices Commission be created to deal with unfair treatment in the workers compensation system; and
  • an independent Medical Services Office be created to help resolve medical disputes.

The continuing refusal at all levels of government to implement Ms. Patterson’s recommendations is very concerning. As concerning is the lack of an explanation why. Worker advocates remain ready and willing to engage with the government, WorkSafeBC, and employers to help implement Ms. Patterson’s report in a realistic, practical, and flexible way.

We echo the Ombudsperson’s view that staff at WorkSafeBC are dedicated, hard working individuals doing very difficult and often thankless work under extremely difficult circumstances. What is clearly lacking is leadership to fix this system and ensure no worker suffers the same fate detailed in the Ombudsperson’s report. This government promised better for workers. It’s time to deliver.

Photo by Christopher Burns on Unsplash