Work­ers’ comp — he who pays the piper doesn’t al­ways call the tune

The Compass - - Editorial - Rus­sell Wanger­sky

On the face of it, it’s straight­for­ward enough: the boards are es­tab­lished so that work­ers who are in­jured on the job get ben­e­fits, paid for by em­ploy­ers, and those same em­ploy­ers don’t have to worry about be­ing sued by their em­ploy­ees for in­juries sus­tained on the job.

But in prac­tice, there are more than a few com­plaints. In­jured work­ers of­ten ar­gue their needs aren’t fully met and their con­cerns are steam­rolled by bu­reau­cratic process, and em­ploy­ers com­plain that they are charged higher rates than re­quired to pay for the rates of in­juries in their busi­nesses.

Al­most ev­ery­where in Canada, there are com­plaints that com­pen­sa­tion boards are un­wieldy mono­liths, set­ting their own rules and thumb­ing their noses at com­plaints.

But what if one of the boards was caught gam­ing the sys­tem?

Well, one was — in Nova Sco­tia.

The de­tails only crept out in a very long court de­ci­sion in that province, so I’ll write a short ver­sion.

A com­pany called Ox­ford Frozen Foods had just reached five years of lower in­jury rates, and had ex­pected its com­pen­sa­tion rates to fall. In­stead, they rose, be­cause while the com­pen­sa­tion board set rates over five years, it had used eight year of rates in­stead. The com­pany went to an ap­peal tri­bunal and won. The com­pen­sa­tion board could then have gone to the Court of Ap­peal, but was afraid of los­ing.

In­side, it de­cided to give Ox­ford a new rate, but only par­tially.

Then, things got strange. Know­ing Ox­ford could ap­peal the par­tial rate all over again, staff at the board came up with an end run. If Ox­ford ap­pealed, the board’s hear­ing of­fi­cer would ad­journ the hear­ing and pass it on up the chain for “pol­icy” rea­sons. Then, se­nior lev­els of the board would ad­just the board’s pol­icy to make it so that Ox­ford could only lose, both at the hear­ing level and at any sub­se­quent ap­peal.

The bot­tom line? They planned to change the rules be­hind the scenes, with­out in­form­ing the com­pany, and just let the com­pany move along in an ex­pen­sive and un­winnable bat­tle.

Even­tu­ally, even that be­hind-the-scenes process came to court, with a judge rul­ing: “But, in ef­fect the ad­journ­ment here was to dis­pose of the appeals ef­fec­tively by putting them off un­til the pol­icy could be changed in a spe­cific way to tai­lor the out­come. That was not merely an in­ci­den­tal ef­fect. It was the plan. The whole idea was to put things on hold to al­low the pol­icy to be amended

They planned to change the rules be­hind the scenes, with­out in­form­ing the com­pany, and just let the com­pany move along in an ex­pen­sive and un­winnable bat­tle.

or clar­i­fied to con­firm the (Work­ers’ Com­pen­sa­tion Board’s) long-stand­ing pol­icy and dis­pose of Ox­ford’s case. When the ad­journ­ment was granted, its in­tent was to dis­pose of the ap­peal.”

And that’s plainly not fair. In lay­man’s terms, the fix was in.

“Ox­ford was not no­ti­fied be­cause the plan was al­ready in place to have the ap­peal ad­journed and re­ferred,” the judge wrote.

By then, Ox­ford al­ready had $150,000 hang­ing on the process.

In com­par­i­son, it would cost those who cooked up the ar­range­ment nothing.

Ox­ford won its case — but only inas­much as it gets to go back to the hear­ing of­fi­cer stage and make its ar­gu­ment all over again.

They’ve been fight­ing their rate in­crease since Oc­to­ber


Their win, at this point, shows that you can fight the sys­tem, even if the sys­tem is go­ing to use every power it has — even cheat­ing — to win.

But the fight isn’t cheap, and it isn’t fast.

Work­ers’ com­pen­sa­tion boards should have a hard look at them­selves, just to be sure they’re not us­ing their sub­stan­tial leg­is­lated and fi­nan­cial pow­ers to get their own way.

Work­ers’ com­pen­sa­tion was es­tab­lished to give every­one a fair shake.

Com­pen­sa­tion boards should see that as their first re­spon­si­bil­ity.

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