Alberta workers’ compensation: a refocus

December 03, 2017 - by: Theodore Fong 0 COMMENTS

by Theodore Fong

This year has seen many developments in the labor and employment fields in Canada. One recent development concerns the Alberta Workers’ Compensation Board (WCB), one of several public agencies across Canada to administer an insurance plan for injured or ill workers. Its no-fault insurance system has been in place for nearly a century and covers over 1.8 million Albertans 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 today’s 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 more frequent today.

WCB review panel report

The panel issued a report in July 2017 after conducting an extensive review, and they found that employers and workers overwhelmingly want the system to continue. The vast majority of claims are handled to the satisfaction of employers and workers alike. That said, 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 that sometimes result 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 recover and return to work.

Based on these findings the panel issued a list of 60 recommendations. They key ones are as follows:

  • Establish a 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 on what this code might contain.
  • Set up a 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 a 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 so long as 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 instead of the WCB retaining physicians for independent medical examinations. The goal is to eliminate the apprehension of bias that currently exists with respect to WCB-retained physicians.
  • Ensure a more holistic assessment of workers. In other words, 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 simply be taken as gospel 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). Labor market data should be used to assess suitable occupations for workers and regard should be given to Alberta’s labor market to identify occupations that actually exist.
  • Personalize 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.

Next steps

The deadline for submitting feedback on the report passed on 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, we expect that further debate will be had before any significant changes are made, particularly given Alberta’s current economic landscape and political climate. Employers with workers in Alberta will want to follow the evolution of this matter closely.

About Theodore Fong:
Theodore Fong is an associate litigator in the firm's Calgary office. He joined the firm in 2010. Theodore practices in a wide range of areas, with an emphasis on commercial, product liability, and estate litigation. Theodore has extensive experience litigating commercial disputes, including oil & gas and construction claims. He was involved in a $200 million oil sands engineering, procurement and construction claim relating to delay, and is currently participating in a delay and cost overrun dispute arising from an $83 million contract. He also has extensive experience with liens, most recently participating in the resolution of a $70 million claim. Theodore also practices in the area of commercial insolvency and restructuring. He performs security reviews of debtors for financial institutions, and recently participated in an application to appoint a receiver with respect to a corporate insolvency. Theodore has defended international manufacturers against numerous product liability actions. He defends against negligence and Sale of Goods claims, and has been involved with complex causation cases involving fire and tampering.
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