Alberta WCB Review Panel Issues Report and Recommendations

The Alberta Ministry of Labour recently released its long awaited WCB Review Report. The 190 page report, and the findings and recommendations it contains, came about as a result of the Province's decision to conduct a full scale review of Alberta's workers' compensation system. An independent three-person panel was established in March of 2016 to conduct a review of the Workers' Compensation Board, the Appeals Commission for Alberta Workers' Compensation, and the Medical Panel Office.

The Review Panel spent 16 months examining the system through technical briefings, review of written submissions, and stakeholder meetings.

Having determined that both employers and injured workers have lost trust in Alberta's workers' compensation system, which is overwhelmingly viewed as too adminstrative and "lacking transparency, openness, good communication, and fairness", the Review Panel calls for a significant overhaul of the workers' compensation system.

At the core of the Review Panel's recommendations lies the view that the workers' compensation system needs to change its overall approach to WCB claims. The Review Panel recommends a shift of focus from administrative "claims management" to putting the health and well-being of injured workers at the center of the system.

To achieve this renewed "worker-centered" system, the Review Panel made a total of 60 recommendations, 27 of which would require amendments to existing laws. Some of the key recommendations include:

• The establishment of a new Fair Practices Office (FPO). The FPO is intended to be independent of the WCB and accountable to the Minister of Labour. It would serve an ombudsman-type function, fielding, investigating, and addressing concerns about administrative fairness in the system.
• Relocating the Office of the Appeals Advisor (OAA) to the FPO. Currently, the OAA forms part of the WCB and is tasked with assisting injured workers and their dependents. Under the proposed arrangement, workers and employers alike would have access to the OAA’s assistance services.
• A new roster system for independent medical examinations (IMEs). The goal is to place responsibility for the IME roster with the Medical Panel Office, which is independent from the WCB. Ideally, this would create a stronger optic of impartiality, while reducing incentives to doctor-shop for multiple IMEs.
• Greater choice for injured workers in selecting health professionals. This is one of the recommendations likely to prove controversial. Rather than selecting from an established list of WCB-retained professionals, the recommendation is that injured workers should have greater choice in the physiotherapists, chiropractors and other types of professionals they engage for treatment.
• The establishment of an obligation to return workers to work. Currently, return to work services represent one part of a multitude of rehabilitative options that the WCB administers. The proposal, inspired by the duty to accommodate under Human Rights legislation, is to impose a statutory duty on employers to return injured workers to the workplace. This duty would be accompanied by a corollary obligation to cooperate on the part of workers. Through new policy, the WCB would establish protocols to ensure these obligations are observed.

While the proposal contemplates some limits to this obligation (e.g., it would only apply to employers of a certain size; the obligation would only subsist for 24 months unless otherwise ordered by the WCB), if accepted, it will represent a dramatic shift in how employers will be able to deal with employees with WCB claims.

The proposal contemplates that the failure to return an injured employee to work can be punished by way of administrative penalty. In addition, the proposal suggests that the duty to return injured workers is only fulfilled once the worker has returned to his or her employment for 12 continuous months. If an employer terminates the returned worker during this period, it would be assumed that the termination was inappropriate and that the employer failed in its return-to-work obligation. As a result, the employer would be left to bear the onus to rebut this presumption and convince the WCB that the termination was not related to the injury of the worker.

Should this proposal be accepted, employers can expect to face difficult issues when contemplating the termination of injured workers. While the proposal makes allowance for just cause terminations, it recommends that employers be required to demonstrate “egregious conduct” in order to justify a termination on this basis. The proposal also leaves it unclear as to what options employers have to terminate injured workers in circumstances involving restructuring, lack of work, or general downsizing.

• The obligation to continue an injured workers’ health benefit coverage. In the event the Government acts on the recommendation to legislate a mandatory return to work, the Review Panel recommends that terms and conditions of employment, such as health benefits coverage, be continued as well.
• The use of case conference models throughout the system. This recommendation seeks to serve the shift away from a “claims management” model. Formal processes such as internal reviews, appeals, and medical panels should regarded as tools of last resort. Instead, decision-makers in the system engage in meaningful dialogue with employers, workers and appropriate parties to discuss challenges and come up with solutions.
• End surplus payments to employers. Currently, when the Accident Fund exceeds its annual target, surplus funds are distributed back to employers. The Review Panel advocates an end to this practice. The Review Panel states that surplus funds should instead be used “for the benefit of workers and employers to support a sustainable workers’ compensation system.”
• Change to WCB policy to address the continuation of benefits where workers are terminated for egregious conduct. A frustrating aspect of WCB claims administration for many employers was that employees who were terminated from modified work assignments for misconduct would inevitably receive Total Disability Benefits upon termination. The WCB often defended this practice on the basis that the system was a “no fault” system and the WCB was not mandated to act as an arbiter of workplace disputes. The Review Panel advocates for a change to the current practice, enabling the WCB to look at all relevant facts to determine whether an employee was terminated for “egregious conduct”.

There was some concern amongst employers that the Review Panel would recommend adopting Saskatchewan’s practice of widely expanding presumptive coverage for PTSD style claims. Currently, presumptive coverage only extends to a category of first responders including police officers, firefighter, EMTs, and sheriffs. The Review Panel recommends expanding the definition of “first responder” slightly to also include correctional officers and emergency dispatchers. It does not, however, recommend expanding presumptive coverage to other higher-risk occupations, such as nurses or social workers.

The Review Panel declined to comment on rate setting for employers, citing the complexity of such a task. However, one of the recommendations of the Review Panel was that the Government engage in an additional independent review of this complex issue. As a result, changes to premium rates can be reasonably expected to occur in the future as well.

It remains to be seen what recommendations the Government will adopt and when any of the proposed changes will be implemented. For now, workers and employers alike must continue to tolerate the existing system.