Dignity and Fairness – A Human Rights Approach To Injured Workers

Written by: Janet Patterson, WELLS Director

This blog series is meant to cover all things related to Workers’ Compensation. It is managed by one of our WELLS Directors, Janet Patterson. 

DIGNITY AND FAIRNESS – A HUMAN RIGHTS APPROACH TO INJURED WORKERS

In 2006, the United Nations published the Convention on the Rights of Persons with Disabilities. [1]

• Article 1 states that the Convention’s purpose is to promote and protect the human rights of persons with disabilities (PWD) and “to promote respect for their inherent dignity.”
• Article 27 specifies that the Convention applies to all PWD, including  those who acquire a disability during the course of employment; and that the signing parties will promote effective access to VR training and assistance in RTW for PWD, and  ensure that PWD are provided with  reasonable accommodation in the workplace. 

This is not a sleeper U.N. Convention. Canada, as part of its commitment to the Convention, passed the Accessible Canada Act in June, 2019 and a few months ago, the B. C. government passed provincial Accessibility legislation. 

The B.C. law [2] will be implemented over 10 years, guided by a Provincial Accessibility Committee. It will apply to government only. According to the plan, government must “lead the way”, and as lessons are learned and standards are developed, the government will engage with other organizations “based on their size and impact on people with disabilities.” [3]

 In other words, the B.C. Accessibility law will not apply to WorkSafeBC anytime soon.

It would be perverse if this 2021 law was used as a shield by the government, to avoid its supervisory role for WorkSafeBC and the results of its 2019 public consultations.  The Convention is an important standard for PWD, a standard which applies to acquired workplace disabilities.  

It may be reasonable to give other organizations a chance to adapt unrelated practices. But WorkSafeBC’s business is disabled workers.  The Convention standard should be its standard.

In this blog, I will focus on one aspect raised by the Convention:  the inherent dignity of disabled workers. 

In her article, “Preserving Workers’ Dignity in Workers’ Compensation Systems”, researcher Katherine Lippel compared WCB systems in Canada and the U.S. with other jurisdictions. She identified issues that should be addressed for a WCB system “to meet the needs of those who are injured while respecting their right to be treated with dignity.”   

The author states that she focused on worker dignity because there is a wealth of literature showing the importance of fairness in the prevention of long-term disability and that negative health outcomes are strongly correlated with the stigmatization of workers and a lack of support in their return to work (RTW). This conclusion is certainly consistent with the 2019 Review, which found that empathy, good communication and good support in RTW were almost always mentioned as key elements in a worker’s successful recovery. Workers who were stigmatized were often harmed.  

Stigma and Return to Work 

But what is stigma? Technically, stigma is defined as “a mark of disgrace”. The act of stigmatizing someone is to treat them as a disgraced person. In compensation terms, stigmatizing an injured worker means treating the worker as a lesser person, disgraced by their injury or disability. 

According to Lippel’s study, workers most often report stigmatization by the compensation system, the compensation staff, employer lawyers at appeal hearings, and adjudicators.   

Stigma is sometimes treated as an issue of disrespectful communication. Certainly, this is part of the picture. In the Review, workers reported such experiences in overwhelming numbers, where they were talked to with profound indifference, disrespect or hostility, made to feel like “criminals” or called “losers” or worse. [4] Such practices can only flourish in an environment where the mandate is to cut costs by any means possible. [5] And the hurtful impact of these words are remembered by injured workers, even years later.

But stigma is not just a matter of communication; it is also about how one is treated as a person. We cannot separate an injured worker’s right to dignity from the way that they are treated by the compensation system and particularly how they are treated in the RTW process.

Lippel identifies two common RTW considerations which negatively impact a worker’s inherent dignity.

1. There is a lack of respect for workers in broad policies for early RTW.  They incite an early RTW regardless of the nature of the injuries or the RTW programs and do not measure the impact of pain on a worker’s ability to work.   Studies show that perceived injustice in the RTW process itself can impede success and/or result in injury. 
2. There is a lack of respect for workers in the measurement of RTW as being the ending of compensation benefits.  This measurement marks the end of financial support for injured workers, but it does not acknowledge the actual RTW outcomes for those workers or even whether they have returned to work at all.   The use of this measurement embeds indifference to the employment consequences of a worker’s injury and denies further responsibility or support, all while claiming “RTW” success.  

In both RTW processes, workers are not given agency and their reality is dismissed, often with negative comments on their credibility. Stigmatizing injured workers in the RTW process has profound consequences for their recovery, employment and quality of life. One worker, R,  presented to the Review from a wheelchair.  He had been seriously injured in a forestry accident as a young man and had gone on to train as a high school teacher many years later. He compared the experience of his injury to his treatment through the compensation system. 

The quality of one’s life after suffering a minor or major injury, may be profound.  [But] how I’ve been treated, to the lack of professionalism to the removal of personal choice, respect, recognition and input has been in a lot of ways harmful… [6]

Nor is this an insignificant problem for injured workers who experience a violation of their inherent dignity. As one advocate said: 

Over the years I have worked with quite a few of our Members who have sustained injury or illness at work.  The biggest, most resounding complaint they have had, is not being treated with Respect and Dignity. This of course varied, but on the not so run of the mill Claims, the majority felt unheard and disrespected. [7]

The Convention states that disabled persons have a right to appropriate VR support and accommodation, the same quality and range of health care as other persons, and the engagement of these services on the basis of free and informed consent. Measured by this human rights yardstick, the current B.C. workers compensation system (WCB)  systemically violates the inherent dignity of injured workers in its RTW approach. 

The Bigger Picture 

The pressures which created the current B.C. compensation processes, including RTW, should be recognized. Since the mid 1990’s, employers and law makers across North America pursued profound changes to workers compensation systems in order to lower employer-paid claim costs. In the United States, researchers documented the slow “unwinding of workers’ comp laws”, finding that since 2003, 33 states have passed workers’ compensation laws that reduce benefits or made it harder to qualify. [8] Some findings are painfully familiar. In Florida, benefits to its most severely disabled workers have been cut by 65% since 1994. These profound changes occurred largely without public notice – by design. The scope of the changes, and the extent to which taxpayers began paying the costs of workplace accidents attracted almost no national attention, in part because the federal government stopped monitoring state workers’ comp laws.

In Canada, a similar story emerges. One researcher made a case study of Ontario’s disability systems, including of the workers’ compensation system (or WC), and found that the WC’s cost-cutting agenda was part of a general “welfarization of  disability” – a process of shifting the cost of disability away from employers and onto public welfare programs. [9] In the case of WC, this transfer occurred primarily through the “deeming” of injured workers as able to earn in a suitable job, whether or not that job was or ever would be available. Again, this finding is painfully familiar.  

These changes were introduced in a drive to reduce or transfer the cost of workplace accidents away from employers. 

But without a doubt, these cost cutting efforts were achieved (and maybe could only have been achieved) by devaluing the credibility of injured workers and dismissing their reality. A plateau policy which looks neutral on paper is anything but in practice. For example, P., a worker who appeared before the Review, recounted her experience with RTW after being  attacked, choked and badly beaten by a patient, at her hospital.   

“..the claims division becomes your worst nightmare.  WorkSafeBC is an insurance corporation and it is in their best interest to get you off their books as soon as possible. To accomplish this, they discredit your character and dismiss any medical documentation that supports your symptoms. In the midst of absolute crisis and insanity, they begin to label you and document that you are resistant to treatment. Their bullying tactics are counterproductive.  Instead of supporting an individual in their recovery it is about plateauing. As soon as it is determined that you have plateaued your claim is closed. [10]

This worker brought her case forward in the hopes that it would be “studied and learned from…”, so that its “far reaching impact” would never happen to anyone else. She is still waiting.  

Conclusion

There are real issues of cost in any compensation system. To date, WorkSafeBC has erred on the side of reducing claims costs to its system by cutting worker benefits. One could, if one wished, also calculate the increased costs to other disability systems in B.C. of this approach.

But today, I ask you to consider the other costs to workers and their families of their treatment in the compensation system – poor vocational outcomes, distress from stigma, lack of RTW support, increased disability and general violation of their inherent dignity as people. 

Lippel concludes..”it should not be presumed that a human rights approach is antithetical to an approach based on economic considerations.”  I suggest that when the real cost of workplace accidents – to workers as well as to employers – are properly calculated and fully measured, effective rehabilitation will be seen as cost effective, as well as equitable.

And for the record, an injury is not a mark of disgrace. It may only be the badge of an unsafe workplace.    

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[1] United Nations. Convention on the Rights of Persons with Disabilities. December 13, 2006

[2] The plain language summary of the B.C. Accessibility Law is available at https://www2.gov.bc.ca/gov/content/governments/about-the-bc-government/accessibility/legislation/summary

[3] Preserving Workers’ Dignity in Workers’ Compensation Systems”. Katherine Lippel, American Journal of Industrial Medicine 55:5 19-536 (2012)

[4] New Directions:  Report of WCB Review 2019, page 68.

[5] WorkSafeBC introduced a Gainsharing or Bonus Plan in 2002 and its history is summarized in Appendix 5, New Directions [ND] report. Through this program, staff and executives were offered bonuses for reducing “days on claim”.  And although this program is no longer in place, its footprint remains.  See ND, pages 28-29.

[6] ND, page 68

[7] ND, page 38

[8] “The Demolition of Workers’ Comp”  Michael Grabell and Howard Berkes, ProPublica, July 7, 2016

[9] “Making the Law Keep Down the Costs.  Why Canada’s public systems designed to support unemployed workers with a disability are making the decisions that they are.” Andrew King, Centre for Research on Work Disability Policy, July 2016.

[10]  Addendum to New Directions Report, Case #6, page 14

Originally published September 15, 2021