The Ombudsperson Speaks Out On WorkSafeBC

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. 

The Ombudsperson of B.C., Jay Chalke, has just issued an important report, “Severed Trust:  Enabling WorkSafeBC to do the right thing when its mistakes hurt injured workers.” [1] The report focuses on the tragic case of a cabinet-maker, Mr. Snider. 

Today, this blog belongs to Mr. Snider, the Ombudperson’s report and the issue of WorkSafe’s accountability to injured workers.

THE AMPUTATIONS

Mr. Snider’s first injury occurred when four fingers on his left hand were partially amputated while operating a power saw. After the resulting surgery and rehabilitation, the case manager discounted the medical evidence that Mr. Snider was left with an impaired grip and terminated his benefits, saying that he could return to his full duties without restrictions. Mr. Snider thought he was not ready to resume the use of power tools, but to avoid financial ruin he returned to work. Within a week after his return to work (RTW), Mr. Snider lost control of high-speed saws twice due to his impaired grip. He reported these events to WorkSafeBC and said that he did not feel safe at work. However, he received no response and the RTW decision was not changed.

While Mr. Snider was appealing the RTW decision, his grip slipped again and his hand was pulled into an industrial saw.  This time, he suffered a catastrophic injury and loss of blood. He was rushed to emergency, underwent 26 hours of surgery and spent 10 days in the ICU. WorkSafeBC accepted this second claim but said that it was not related to his first injury (at a higher wage rate). Only after many appeals over 5 years, did Mr. Snider begin receiving the benefits he was due.”[2]  

FINDING: WORKSAFEBC CAUSED EGREGIOUS HARM  

The Ombudsperson found that WorkSafeBC’s original RTW decision was unjust.

Mr. Snider’s situation is tragic for many reasons, one that there was little ambiguity in the evidence indicating that he had physical limitations that would place him at risk of harm should he return to his pre-injury occupation at full capacity.  It is clear that WorkSafeBC made decisions that were either unsupported by evidence or in direct contradiction with that evidence.[3]

The Ombudsperson then concluded that this original decision was followed by a series of errors that overall, “it was clear to us that Mr. Snider’s workplace injury claim was mishandled and that he suffered egregious harms as a result.”[4]    His public report makes two formal findings:

  • WorkSafeBC acted unjustly when it determined that Mr. Snider was capable of returning to work at full capacity without limitations and suspended his temporary disability benefits related to his first injury.
  • This action directly led to Mr. Snider’s second injury. [5]

REMEDIES ACCEPTED: APOLOGY AND CHANGES TO WORKSAFEBC RTW PROCESS

WorkSafeBC at first denied responsibility for its role in causing Mr. Snider’s second injury and refused to apologize for the RTW decision. However, as the investigation progressed, WorkSafeBC agreed to provide an apology to Mr. Snider and implement certain improvements, including using a recommended “activities and limitations form” [6] and requiring a mandatory manager review process for RTW after serious injuries. [7]

REMEDIES REJECTED: RECOMMENDATIONS FOR FINANCIAL COMPENSATION

The Ombudsperson states that while an apology is a good first step, it is “simply insufficient” without financial compensation to Mr. Snider for the physical, financial and psychological hardships that he endured as a result of WorkSafe’s mishandling of his claim. A financial remedy would have a systemic effect as well. “Were WorkSafeBC to provide Mr. Snider with meaningful compensation for its errors, not only would it provide a measure of relief for Mr. Snider, but it would also demonstrate that it is committed to being accountable for its actions in a manner that aligns with its core values.” [8]

In this spirit, Mr. Chalke made three highly specific recommendations for compensation to Mr. Snider.  Given their unusual nature and specificity, I have set them out in full . [9]

  • By April 1, 2022, the Minister of Labour propose amendments to the Workers Compensation Act to create a mechanism and a fund that will enable WorkSafeBC to provide monetary compensation which it concludes are grievously and irreparably harmed by its own mistakes.
  • By December 31, 2021, the Minster of Labour provide Mr. Snider with an ex-gratia payment in recognition of the second accident which occurred because of WorkSafeBC mistakes. The amount of this payment is to be determined by a retired judge of the Supreme Court of B.C., applying the common law for the assessment of damages, and taking into account the amounts paid or payable by WorkSafeBC.
  • The Ministry of Labour pay the reasonable legal expenses incurred by Mr. Snider to make representations to the retired judge.

These recommendations were rejected by the Ministry of Labour based on certain provisions in the Workers Compensation Act. [10] Mr. Chalke replied:

Government has taken the position that allowing WorkSafeBC to voluntarily make a payment in circumstances such as these is inconsistent with the “no-fault” basis of workers compensation – the “historic trade-off” that allows the workers compensation to function. I disagree. The no-fault principle ensures injured workers are compensated without having to show their employer caused the injury. It has nothing to do with preventing WorkSafeBC from fixing its own errors that cause further harm, if that is the right thing to do. …

And so, it comes down to this. A worker loses part of his hand in a horrific, painful and disabling accident that will impair his quality of life forever. And it happened because of a mistake by a public body. And the worker bears the loss – not the public body that erred, nor the government that established and preserved the legislative framework that prevents the public body  from doing the right thing.

I am disappointed to date that all three of my recommendations have not been accepted and am issuing this report to bring public attention to what I consider a regrettable shortcoming in the worker’s compensation scheme in this province. [11]  

(emphasis added)

MY COMMENTS

I have quoted extensively from Mr. Chalke’s important report, now available on the Ombudsperson’s website.

In my view, the remedy crafted by the Ombudsperson for this case is brilliant and creative, and it is legally defensible. WorkSafeBC clearly forced a disabled man back into dangerous work and then denied responsibility while impugning his credibility for years. Their actions caused great harm to Mr. Snider; a financial recognition by WorkSafeBC of its egregiousness conduct is just, and the remedy is fair.   

Unfortunately, there are many other Mr. Sniders. The Review report sets out the case of M., a 30-year-old roofer who suffered catastrophic injuries when he fell off a roof after being forced to RTW with an unstable knee.[12] The Tyee has been reporting on complaints about WorkSafeBC forcing workers back on the job too soon, focusing on the stories of Kevin Bentson, James Mansell and others (see link below).  And there are many unknown workers with similar stories. Absent the Ombudsperson’s time-consuming intensive investigation and public report, we would not know about Mr. Snider. How many cases like this does it take?  

WorkSafeBC cites “Accountability” as one of its core values. But accountability to who? For what? If Mr. Snider’s case shows nothing else, it is the profound lack of accountability at all levels to Mr. Snider and to injured workers. At the same time, these unjust RTW decision contribute to the WCB’s measures of “success” in RTW, and they delay payments to workers out of the Accident Fund by months or years.[13]  Such unfair decisions may cut claims costs, but at a terrible price. The many cases and multiple appeals highlight how common this practice really is.

The question is whether WorkSafeBC can be allowed to continue unfair or negligent activities which harm the physical and mental health of vulnerable workers, without consequences, without accountability and with impunity. The government is aware of these issues at least since the 2019 New Directions report.  

While voluntary compensation is a good start to accountability, there must be more – safeguards to prevent and amend unfair decisions, especially when they are made without evidence or contrary to evidence. Real accountability must be available in all cases and must occur as a matter of course.

When the 2019 Review report was met with deafening silence, the B.C. Federation of Labour issued a follow up report – Workers Deserve Better: How We Can Build the Workers’ Compensation System that Injured Workers Need[14]. Both reports identify specific changes to the Workers Compensation Act to restore WorkSafeBC.’s accountability to injured workers. These include:  

  • Create a Fair Practices Commission that is independent of the WCB, with the specific remedial powers. [15] This framework was drafted by a previous Ombudsperson and requires review by the Provincial Ombudsperson. AND
  • Pay interest when the WCB wrongly denies a worker benefits and the worker must endure a lengthy delay to correct the situation.[16] (This remedy would be available to all but integrated with the Ombudsperson’s  extraordinary remedy in egregious cases.)

It is time to make these amendments to the Workers Compensation Act, together with the amendments recommended by the Ombudsperson, in order to restore WorkSafeBC’s accountability to injured workers.   Mr. Snider deserved better.  All workers deserve better.

LINKS

[1] Severed Trust:  Enabling WorkSafeBC to do the right thing when its mistakes hurt injured workers.”  Ombudsperson British Columbia, Public Report No. 52, September 2021

[2] Severed Trust, p. 13 and 14.   Mr. Snider began receiving a total of $1496.60 a month in March, 2016, after 5 years navigating the “serpentine” appeals process – including 6 Review Division appeals, 3 WCAT appeals and numerous WCB implementation decisions.  It notes that the impact of this experience on Mr. Snider’s mental health has never been assessed. 

[3] Severed  Trust, page 15.

[4] Severed Trust, p. 15.

[5] Severed Trust, Appendix A

[6] This form was recommended and discussed in detail by Paul Petrie in his report, Restoring the Balance:  A Worker-Centred Approach to Workers’ Compensation Policy March 2018.

[7] These improvements are described in more detail on page 16 of Severed Trust and in Appendix B, the letter from the President and CEO of WorkSafeBC to the Ombudsperson.

[8] Severed Trust, p. 14.

[9] The full recommendations are also in Appendix A.

[10] The Ministry of Labour’s full response (4 pages) was drafted by Deputy Minister Trevor Hughes and is attached to the  Severed Trust report as Appendix C.

[11] Severed Trust, “From the Ombudsperson”, page 2

[12] M. is Case #15 in the Addendum, New Directions

[13] See discussion of systemic problems in RTW decision-making, New Directions, pp. 97-102.  

[14] Workers Deserve Better: How We Can Build the Workers’ Compensation System that Injured Workers Need[14]authored by Kevin Love of CLAS. 

[15] New Directions, Recommendations #66-68,  pp. 171-177.

[16] Recommendation #29 in New Directions, pp. 117-120.

Originally published September 23, 2021