quote:

---

Premier Dalton McGuinty said he will not heed calls to fire the embattled chair of the provincial workplace safety agency, but branded its flawed rebate program an "embarrassment" that needs to be fixed.

McGuinty's comments came as labour groups held a news conference at Queen's Park yesterday morning, demanding he fire Steve Mahoney, chair of the Workplace Safety and Insurance Board, who has said he was unaware his rebate program was defective.

Mahoney's comments came in the wake of an ongoing Star investigation into worker safety that found the WSIB has given millions of dollars in rebates to companies that have been prosecuted by the provincial government and found guilty of safety violations leading to deaths, amputations and other serious injuries.

Despite the deaths, and subsequent ministry of labour fines, those same companies received rebates over the years that ranged from hundreds of thousands to millions of dollars.

---

WSIB is an employer-funded system -- employers pay premiums, and workers give up their right to sue in exchange for statutory benefits. Employers' overriding objective is to minimize premiums, which can be very substantial.

Under the NEER system McGuinty is complaining about, employers who manage to avoid injuries are credited with a refund of part of their premiums. Unfortunately, the same is true for employers who prolong litigation or those who discourage "lost time" claims, by whatever means. Those injured workers are still entitled to benefits if they eventually make out their case, but the costs usually cannot be applied to the employer's account after a period of time has passed. Retroactive NEER adjustments (adjustment of costs after the limitation period has closed) are usually carried out only at the employer's request, ie when it is to their benefit.

This discrepancy has contributed to an enormous unfunded liability; the WSIB accident fund will not stretch to the projected costs of current and future claims. This in turn raises the premium rates.

Under these circumstances, there is a great deal of pressure on the WSIB to control claim costs. Partly this is done through applying the governing legislation stringently, denying some injured workers their rightful benefits. The law was changed about 10 years ago (under Harris) to make this easier to do.

As I see it, the WSIB ad campaign is another piece of the same agenda. By stigmatizing work injuries, workers are less inclined to file claims or to pursue their full entitlement. There may also be a reduction in the number or severity of work injuries but I'm not aware of any credible research confirming that to be the case. A reduction in the number of claims filed is not by any means a reliable indicator. The campaign itself is costing a hell of a lot of money, that could be applied to -- yes, fixing experience rating -- or supporting other initiatives, like health and safety committees, that are proven to reduce the rate of injury.

Eliminating the experience rating programs would remove some of the cost pressures on the WSIB. That has been known for many years. What is not clear is what should replace NEER, and the similar programs geared to smaller businesses and the construction industry. There is always some concern, in an employer-funded system, that the devil we know may be better than one we don't -- especially when the new guy can be ushered in quickly through the back door in a political crisis opportunity such as this.

This public scrutiny is also missing the other employer payout programs such as SIEF, where the Board is required by its own policy to absorb 25 to 100% of the costs of a claim when the worker had a pre-existing condition that contributes to or prolongs the compensable injury. There is no provision for applying those costs back to a prior employer who was responsible for the original condition.

[ 14 April 2008: Message edited by: triciamarie ]

Under NEER, after about four years have passed from the date of the accident, any further benefits allowed under a claim are not charged back to the employer. So at that point it costs the employer more to be involved in opposing the claim than to let matters take their course through adjudication.

However, there is a group of large employers who do not fall under experience rating. They pay all their claim costs directly, plus an administration fee. They are not technically eligible for SIEF. Those employers are much more likely to strongly oppose a worker's legitimate claim for benefits, using whatever means available to try to delay adjudication, delay payment or cast the worker in an unfavourable light. They will still be coming after the worker just as strongly ten or twenty years after the accident.

The same is to some extent true of larger employers who do fall under NEER but because of their size, they make up such a significant proportion of their rate group that their claims history determines their premium rate.

It makes a big difference to the worker's claim if the employer is participating in the appeals.

[ 14 April 2008: Message edited by: triciamarie ]