The year 2017 saw many developments in the labour and employment fields in Canada. One such development concerned the Alberta Workers' Compensation Board (WCB), one of several public agencies across Canada established to administer an insurance plan for injured or ill workers. The WCB's no-fault insurance system has been in place for nearly a century and covers over 1.8 million Albertan individuals working for over 160,000 employers.
In 2016 the Alberta government commissioned a panel to evaluate the entire workers' compensation system. The objective was to examine how the system was keeping up with the realities facing employers and workers. For instance, occupational causes of injuries are becoming increasingly complicated since workers now often have multiple employers (sometimes simultaneously) and complex medical conditions are becoming more frequent.
In July 2017, after conducting an extensive review, the WCB review panel issued a report which found that employers and workers overwhelmingly wanted the system to continue. Most claims are handled to the satisfaction of employers and workers alike. However, significant problems exist. Many felt that the system had "lost its way" and that the WCB had become overly focused on managing claims efficiently.
Over the years, the WCB has adopted a rigid posture of aggressive compliance with rules which sometimes results in decisions that "fly in the face of common sense". There was a clear need to reorient the WCB back to its core purpose: providing compensation to workers who suffer workplace injuries or illnesses and helping them to recover and return to work.
Based on these findings, the panel issued a list of 60 recommendations. The key recommendations are as follows:
- Establish the new Code of Rights and Conduct that articulates the rights of workers and employers in their interactions with the WCB. Regrettably, the recommendations are short on detail as to what this code might contain.
- Establish the new Policy and Practice Consultative Committee, which would include employer and worker representatives, and would play a role in the WCB's policy development process.
- Create the new independent Fair Practices Office charged with investigating concerns about the administrative fairness of the WCB and conducting regular quality-assurance audits of the system. This recommendation follows similar ombudsman-type services already offered in other provinces.
- Allow workers to choose their own health professionals, provided that WCB standards are met. This recommendation is designed to allow workers to feel more comfortable with the medical professionals involved in their care.
- Allow the independent Medical Panel Office to select a roster of acceptable physicians, rather than the WCB retaining physicians for independent medical examinations. The goal is to eliminate the apprehension of bias that exists with respect to WCB-retained physicians.
- Ensure a more holistic assessment of workers. If there is a difference in medical opinion between the WCB's medical consultant and the worker's treating physician regarding a worker's health, the consultant's opinion should not be simply accepted by the WCB. The consultant should contact the treating physician to ask questions, offer perspectives and facilitate a search for further medical evidence to support a holistic assessment of the worker.
- Change the WCB's practice of 'deeming' (deducting benefits based on income that a worker can theoretically earn). Labour market data should be used to assess suitable occupations for workers and regard should be given to Alberta's labour market to identify occupations that actually exist.
- Personalise the WCB's vocational rehabilitation services process to take into account a worker's skills, experiences, future goals and job prospects.
- Require employers to return workers to work. This recommendation follows legislation already enacted in several Canadian provinces. While the report is short on details, the panel envisioned a return-to-work process that is rooted in collaboration.
- Adopt a system-wide commitment to seek an early and collaborative resolution of disputes in order to temper the adversarial nature of the system.
The deadline for submitting feedback on the report was September 30 2017. As expected, there has been both praise and criticism of the report. While the extent to which the government ultimately adopts the panel's recommendations remains to be seen, further debate will likely be had before any significant changes are made, particularly given Alberta's economic landscape and political climate. Employers with workers in Alberta should follow the evolution of this matter closely.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Theodore Fong at Fasken Martineau DuMoulin LLP by telephone (+1 403 837 0610) or email (firstname.lastname@example.org). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.