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A GUIDE TO THE REVIEW OF THE WORKERS’ COMPENSATION SYSTEM

ALBERTA WORKERS’ COMPENSATION BOARD (WCB) REVIEW

TOGETHERWORKING

2016/2017

3 | MESSAGE FROM THE PANEL

4 | ABOUT THE WCB REVIEW

4 | ABOUT THIS DOCUMENT

5 | THE PURPOSE OF WORKERS’ COMPENSATION Meredith Principles – The Historic Compromise The WCB in Alberta

7 | THE WCB CLAIMS PROCESS Determining a Claim’s Eligibility for Benefits Determining an Accident Arose out of Employment Specific Criteria for Determining Causation Occupational Diseases and Psychological Injuries When Determining a Cause is Impossible Claims Involving Pre-Existing Conditions Claims Management and Service Delivery Medical Services Resolving Disagreements About Medical Issues in a Claim Returning to Work Return to Full or Modified Duties at Original Employer No Return to Original Employer Investigations

16 | WCB BENEFITS Benefits Available to Workers Loss of Earnings Payments for Permanent Impairment Spousal and Dependant Support Economic Loss Payments After Retirement Age Benefits Adjustments Deeming Earnings Non-Compliance and Effect on Benefits Other Income Replacement Options for Workers

TABLE OF CONTENTS

1 | WORKING TOGETHER ALBERTA WORKERS’ COMPENSATION BOARD (WCB) REVIEW

21 | REVIEW AND APPEAL OF WCB DECISIONS The Disputes Resolution and Decision Review Body The Appeals Commission Alternative Dispute Resolution (ADR) Reconsideration of Appeals Commission Decisions Judicial Appeals and Reviews Appointment and Funding of the Appeals Commission Employer Appeals Consulting Service Office of the Appeals Advisor Privacy and Confidentiality

26 | WCB GOVERNANCE Board of Directors of the WCB WCB Corporate Objectives and Key Deliverables Policies of the WCB Review of the Workers’ Compensation System

29 | PREVENTION OF WORKPLACE INJURY AND ILLNESS Role of WCB in Prevention Certificate of Recognition Safety Associations Health and Safety Information

32 | FUNDING AND FINANCIAL SUSTAINABILITY Employer Premiums Industry Custom Pricing Partnerships in Injury Reduction The WCB Accident Fund

36 | Appendix Appendix A: Workers’ Compensation vs Private Insurance Appendix B: WCB Claim Statistics Appendix C: Appeals Commission Statistics Appendix D: Organizations Responsible for Occupational Health & Safety

A GUIDE TO THE REVIEW OF THE WORKERS’ COMPENSATION SYSTEM | 2

As the members of the Workers’ Compensation Board (WCB) Review Panel, we are pleased to invite you to engage in this review process. The last comprehensive review of the WCB was conducted more than 15 years ago. The world has changed a great deal in that time.

The WCB provides coverage to over two million workers and thousands of employers across the economy. Individual workers, large industries, small and medium-sized businesses, unions, safety and industry associations, and other Albertans all have interests in the WCB.

Our Panel has extensive experience representing workers and employers through Alberta’s workers’ compensation processes. However, as we work through many complex issues, we need the input of Albertans to ensure we have a thorough understanding of different perspectives.

In this Guide, we discuss many key areas of workers’ compensation in Alberta that are of interest to stakeholders. The current state of legislation and policies are described as we understand them to be. We know that workers, employers and other stakeholders have many different views and experiences regarding how this is put into practice day-to-day.

Through this Guide, and its companion Workbook, we hope to gather and better understand those different views. The information you share will guide our Panel as we further explore the issues in the coming months.

We will be working hard to engage stakeholders throughout our review process. You all have wisdom to share and unique ideas to provide about how the WCB should operate. By working together, we will be able to develop recommendations for the Government of Alberta that are practical to implement, meaningful to stakeholders, and productive in their impact.

We look forward to your submissions.

The WCB Review Panel

MESSAGE FROM THE PANEL


As part of the review of Alberta’s agencies, boards and commissions, the Government of Alberta has appointed the panel to conduct a formal review of the workers’ compensation system, which includes the Workers’ Compensation Board (WCB) - Alberta, the Appeals Commission for Alberta Workers’ Compensation and the Medical Panel Office.

The review will help ensure that the WCB provides fair compensation and meaningful rehabilitation in a way that is sustainable and affordable.

The WCB Review Panel will not be looking at specific claims as part of the mandate. If you have questions or concerns about a specific claim, please contact the WCB at www.wcb.ab.ca.

This Guide was developed to provide more detailed information about significant topics in Alberta’s workers’ compensation system. The Guide is not intended to be a comprehensive analysis of the workers’ compensation system. The content of this Guide does not reflect existing or potential Government of Alberta policy.

You may find this Guide helpful in completing the WCB Review Workbook (available at www.alberta.ca/wcb-review-get-involved.aspx). The Workbook is a companion document that you can use to provide your views about Alberta’s workers’ compensation system.

To learn more about the WCB Review and its engagement process, visit www.alberta.ca/wcb-review.cfm

ABOUT THE WCB REVIEW

ABOUT THIS DOCUMENT


MEREDITH PRINCIPLES – THE HISTORIC COMPROMISE

In 1910, the Ontario government commissioned Chief Justice William Meredith to produce a report on workers’ compensation for that province. He recommended a program based on collective liability and a wage-loss approach to benefits. Over time, provinces and territories created workers’ compensation boards based on this. Alberta’s WCB was created by an act of the Alberta Legislature in 1918.

There are five basic principles that underlie most workers’ compensation legislation in Canada today, including Alberta. These are often called the “Meredith Principles”.

• No-fault compensation. This means workers are paid benefits regardless of how the injury occurred. The worker and the employer waive the right to sue. There is no argument over responsibility or liability for an injury.

• Security of benefits. This means a fund is established to guarantee that money exists to pay benefits.

• Collective liability. This means that, on the whole, employers covered by the system share liability for workplace injury insurance. The total cost of the compensation system is shared by all employers. All employers contribute to a common fund. Financial liability becomes their collective responsibility.

• Independent administration. This means the organizations that administer workers’ compensation insurance are separate from government.

Before workers’ compensation was developed, workers who suffered workplace injuries or illnesses had to sue their employers for damages. Many workers were not in a position to sue their employers or, if they did, were not successful. Under the law workers could be denied any compensation if they were found to have contributed in any way to their injury or illness. When a worker was successful in suing an employer, the costs could impact the continued viability of the employer’s business.

THE PURPOSE OF WORKERS’ COMPENSATION

DID YOU KNOW?

There are a number of differences between workers’ compensation and private insurance. One example is that when premiums are not paid, workers’ compensation remains available for workers and employers, and with private insurance coverage is cancelled. For more details on differences, see Appendix A.


• Exclusive jurisdiction. This means only workers’ compensation organizations provide workers’ compensation insurance. All compensation claims are directed solely to the compensation board. The board is the decision-maker and final authority for all claims.

The Meredith Principles are a historic compromise in which employers fund the workers’ compensation system, and injured workers in turn surrender their right to sue their employer for their injury.1

THE WCB IN ALBERTA

The WCB is a third-party, independent and neutral agency that is responsible for the administration of workers’ compensation in Alberta.

The WCB operates under the authority of the Workers’ Compensation Act and three regulations under that Act: the Workers’ Compensation Regulation, the Medical Panels Regulation and the Firefighters Primary Site Cancer Regulation. The Act and regulations are available through the Alberta Queen’s printer at www.qp.alberta.ca/570.cfm?frm_isbn=9780779787500&search_by=link.

For many industries in Alberta, coverage by WCB is mandatory. Employers in these industries must contribute to workers’ compensation.

Certain industries are not required to contribute to workers’ compensation, but have the option to participate voluntarily. These industries are outlined in the Workers’ Compensation Regulation. They include industries such as accounting, photography and real estate.

Approximately 92.63% of all workers in the province are covered by the WCB.2 Statistics on the volume of claims processed by the WCB are available in Appendix B.

1 Association of Workers’ Compensation Boards of Canada – About Workers’ Compensation - “What are the Meredith Principles”? awcbc.org/?page_id=57

2 Association of Workers’ Compensation Boards of Canada (http://awcbc.org/?page_id=9759 )

DID YOU KNOW?

In 2015, there were 166,968 employers who contributed $1.0 billion in premium revenue to the system. Their contributions ensured that 2,028,592 workers across the province would have access to WCB benefits if they were to have a workplace-related injury.

Source: 2015 WCB Alberta Annual Report


DETERMINING A CLAIM’S ELIGIBILITY FOR BENEFITS

When an injury or illness occurs in the workplace, a claim is submitted to the WCB. Not all claims are eligible for the payment of workers’ compensation benefits.

To be considered eligible for payment of benefits, an accident must meet two conditions:

• It must arise out of employment.

An accident arises out of employment when it is caused by some employment hazard. An employment hazard is defined as an employment circumstance that presents a risk of injury. The hazard may be directly related to the industry or occupation (e.g., machinery, chemicals, worksite ergonomics), or may be incidental (e.g., weather conditions, third-party vehicles).

• It must occur in the course of employment.

An accident occurs in the course of employment when it happens at a time and place consistent with the obligations and expectations of employment. Time and place are not strictly limited to the normal hours of work or the employer’s premises. However, there must be a relationship between employment expectations and the time and place that the accident occurs.

When the WCB is notified of an accident, it initiates a process to obtain all relevant evidence. Based on the weight of that evidence, the WCB decides whether the claim is eligible for payment of benefits.

DETERMINING AN ACCIDENT AROSE OUT OF EMPLOYMENT

For many claims, it is relatively straightforward to determine that the accident arose out of employment. For example, if a worker falls from a ladder while performing their duties at work and breaks their arm, it is clear the accident arose out of employment.

In some instances, however, it can be more challenging to determine that a worker’s injury or illness arose out of employment. For example, a person may have a heart attack while at work, but that does not necessarily mean the heart attack arose out of employment.

THE WCB CLAIMS PROCESS

DID YOU KNOW?

The Workers’ Compensation Act uses the term “accident” as a basis for many aspects of workers’ compensation. The Act defines an accident to include: disablement (an injury), a disabling or potentially disabling condition caused by an occupational disease (an illness), a chance event that has a physical or natural cause, and even a wilful and intentional act.


To determine whether an accident arose out of employment, the WCB looks at three key factors. These factors help the WCB determine causation of the worker’s injury or illness:

• Medical diagnosis – What is the worker’s diagnosis? Is it a recognized medical diagnosis? Is the diagnosis clearly established in the worker’s particular case?

• Work factors – What are the conditions at the workplace? What are the worker’s duties? What are the physical demands? What type and extent of exposures are there?

• Personal factors – Does the worker’s medical condition predate the accident? Are there non work-related risk factors that may have caused the injury or illness?

In determining causation, the WCB uses a “but for” test. That is, would the worker’s injury or illness have occurred “but for” the workplace exposures? The WCB has used this test in practice for a number of years and has recently incorporated the test within its policies.

There may be several causes that meet the “but for” test that interact in combination to cause an injury or illness. Work does not have to be the only factor, or even the primary factor, for a worker’s injury or illness to be compensable. It must, however, be a necessary factor. Put another way, if the worker’s injury or illness would have occurred anyway, regardless of the work factor, then it is not eligible for benefits.

When adjudicating a claim using the “but for” test, the WCB weighs all of the evidence (including accepted medical knowledge) and determines if it is more likely than not that, but for the worker’s employment, the injury or illness would not have occurred.

SPECIFIC CRITERIA FOR DETERMINING CAUSATION

The “but for” test is generally applied to all claims to help determine whether an accident arose out of employment. However, the issue of causation can be more problematic for certain types of injuries and illnesses. (For example, psychological injuries.)

For certain types of injuries or illnesses, WCB policies set out specific criteria for determining causation. These specific criteria need to be read in conjunction with the general “but for” test. (See the next section on “Occupational Diseases and Psychological Disorders”.)

OCCUPATIONAL DISEASES AND PSYCHOLOGICAL INJURIES

Occupational diseases can be a particularly challenging area when it comes to determining causation. This is a challenge faced by workers’ compensation systems across Canada.

In 2015 in Alberta, occupational diseases represented approximately 10% of the claims accepted by the WCB.

DID YOU KNOW?

In 2015, 66 fatalities (52.8% of all occupational fatalities) were attributed to occupational disease and this is expected to increase over time.

Source: Occupational Health & Safety work.alberta.ca/occupational-health-safety/statistics.html.


Presumptive Diseases

A list of presumptive diseases is set out in the Workers’ Compensation Regulation. If a worker suffers an occupational disease, and was employed in an industry listed in the regulation3 within the preceding 12 months, then the illness is presumed to have been caused by employment (unless the contrary is shown).

The Workers’ Compensation Regulation currently reflects the state of medical science as of January 1, 1982.4 Some have suggested the regulation should be updated to ensure it is relevant given the state of medical science today.

Over time, the scope of presumptive diseases has gradually been expanded through amendments to the Workers’ Compensation Act.

• In 2003, the Act was amended to include a specific presumption relating to firefighters and certain types of cancers.

• In 2005, the Act was amended to include a similar presumption related to myocardial infarctions suffered by firefighters when occurring within 24 hours after attendance at an emergency response.

• In 2012, the Act was amended to provide that if a first responder is diagnosed with post-traumatic stress disorder (PTSD) then it is presumed the PTSD arose out of and occurred in the course of the first responder’s employment in response to a traumatic event or series of traumatic events. First responders are defined as police officers appointed under provincial legislation, firefighters (both full and part-time), emergency medical technicians and peace officers who are authorized to use the title “Sheriff”.5

Some suggest that the entire scope of presumptive diseases should be expanded, to better reflect linkages that exist between certain occupations and certain injuries and illnesses. Others feel evidence does not support the assumption that it is the type of occupation that should presume coverage, but rather that coverage should be based on the incident and whether it was the cause of the injury.

Other Injuries or Illnesses Covered by WCB

Other injuries or illnesses may be covered if the WCB is satisfied it is caused by employment in an industry to which the Workers’ Compensation Act applies.6

Psychiatric and psychological injuries (including chronic onset stress) can be difficult from a claims standpoint, because there can be many different causes of these conditions (e.g., both work-related and non-work-related causes). This makes it challenging to determine if the injury arose out of and in the course of employment.

DID YOU KNOW?

It is estimated that approximately 2% to 8% of all cancer deaths are related to occupational exposure. This translates into 100-500 deaths from occupational cancer in Alberta. However, far fewer than this are reported.

Source: Occupational Health & Safety work.alberta.ca/occupational-health-safety/industry-initiative-occupational-disease-prevention.htm

DID YOU KNOW?

“Predominant cause” means that the occupational exposures are the prevailing, strongest, chief, or main cause of the injury. It is not necessary that the proportion attributable to the occupational exposures is a certain percentage (such as 50% or more), provided that the occupational exposures are the strongest cause.

3 Workers’ Compensation Regulation, section 204 Mah, Doug, Workers Compensation Practice in Alberta, 2nd ed, 3-21.5 Workers’ Compensation Act, section 24.26 Workers’ Compensation Regulation, section 20 (1)


The WCB will consider a claim for psychiatric or psychological injury when there is a confirmed psychological or psychiatric diagnosis as defined in the most current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the condition results from one of the following:

• Organic brain damage,

• An emotional reaction to a work-related physical injury,

• An emotional reaction to a work-related treatment process,

• Traumatic onset psychological injury or stress, or

• Chronic onset psychological injury or stress.7

For example, a claim for chronic onset stress will be accepted when:

• there is a confirmed psychological or psychiatric diagnosis as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM);

• the work-related events or stressors are the predominant cause of the injury;

• the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation; and

• there is objective confirmation of the events.8

The state of policy today represents an evolution from the past. Not long ago, the WCB generally did not cover psychological and psychiatric injuries. Over time, workers’ compensation systems have come to cover these injuries but struggle with these types of cases. In the years to come, these types of cases will likely continue to be challenging not only in terms of determining eligibility, but also in terms of return to work and vocational rehabilitation.

WHEN DETERMINING A CAUSE IS IMPOSSIBLE

There are some illnesses where it is impossible to identify the actual cause. An individual may have several risk factors for the illness, any one of which could cause their illness (for example, many forms of cancer). In such a situation, it is impossible to determine which of the risk factors caused the illness in the individual.

For these situations, the WCB determines whether work factors contributed to the risk that the individual would develop the illness. The WCB considers all available epidemiological evidence about the illness and, based on this, decides whether the worker’s occupational exposure materially contributed to the worker’s risk of developing the illness.

7 WCB Policy: 03-01 Part II, Application 6, Question 1 www.wcb.ab.ca/pdfs/public/policy/manual/printable_pdfs/0301_2_app6.pdf

8 WCB Policy: 03-01 Part II, Application 6, Question 11 www.wcb.ab.ca/pdfs/public/policy/manual/printable_pdfs/0301_2_app6.pdf

DID YOU KNOW?

Examples of normal pressures and tensions, which are not eligible for benefits, include the following:

• interpersonal relations and conflicts,

· health and safety concerns,

· union issues, and

· routine labour relations actions taken by the employer (e.g., workload and deadlines, performance management, changes in job duties, lay-offs, etc.)

Source: Policy 03-01 Part II Injuries General


CLAIMS INVOLVING PRE-EXISTING CONDITIONS

The WCB’s current policy provides that where a workplace injury causes a pre-existing condition to deteriorate or become symptomatic, the injured worker is eligible for payment of benefits.

• Medical evidence must show that the accident caused some worsening of the worker’s pre-existing condition, at least on a temporary basis.

• It is not a requirement for the worker to have sustained a permanent clinical impairment as a result of the injury to qualify for benefits.

• Benefits for the worker continue until the worker recovers to the point that their remaining disability is due entirely to the pre-existing condition or unrelated health problem.

CLAIMS MANAGEMENT AND SERVICE DELIVERY

If a worker is required to miss only the day of the accident as a result of an injury, then their claim is considered a medical-aid-only claim . These types of claims are typically handled by claims processing clerks.

If a worker is required to miss more than the day of the accident as a result of an injury, their claim becomes a time loss claim . Short-term time loss claims are typically handled by claims adjudicators. Where a workers’ time loss is not short-term, their claim may be transferred to a case manager following adjudication. The case manager makes all subsequent entitlement decisions related to that claim.

• Case managers provide services to clients who require injury, medical, vocational and/or rehabilitation management to help them return to employment or employability. They are responsible for assessing, planning and facilitating the right benefits and services to meet return-to-work goals for injured workers.9

• A case manager determines when a worker is able to return to work, based on progress reports from the worker and their doctor and other health professionals.

• If the worker has a job to return to, the case manager will work with the employer (and union, if applicable) to arrange a gradual return to work with light or modified duties.

• If a worker does not have a job to return to, the worker may become eligible for vocational rehabilitation services through the WCB. The case manager will develop a plan for return-to-work services to help the worker return to employability.

Adjudicators and case managers have their work informally reviewed by their supervisor whenever a significant decision is made, such as acceptance or denial of a claim, or the creation of a detailed return-to-work plan. In some circumstances, formal reviews are completed such as when a vocational rehabilitation plan is developed.

DID YOU KNOW?

When there is medical evidence of a pre-existing condition, WCB may relieve claim costs if the pre-existing condition causes an increase to the period or degree of disablement. The pre-existing condition may have been a separate factor or aggravated by the accident. The resulting costs from the prolonged period are relieved from the accident employer’s experience account.

Source: WCB Policy 05-02-Cost Relief Part II

9 https://wcb.ab.ca/assets/pdfs/workers/WCB-003_Worker_Handbook.pdf


Because of the key roles they play in managing claims and assisting workers with their return to work, case managers need to be effective in providing services to workers. Adjudicators and case managers are expected to adhere to service standards.

Some have expressed concern that the WCB’s tests for claim eligibility risk being interpreted and applied differently by different case managers and decision makers.

This raises questions about what skills and competencies should be required for case managers, and about the service experiences (i .e. , quality, effectiveness, timeliness) that workers and employers currently have when they interact with the WCB.

When a person in Alberta has concerns about how the WCB is managing (or has managed) a claim, they do not have a single window through which to raise these concerns. Instead, they can raise their concerns through the Alberta Ombudsman (for administrative fairness), the Office of the Information and Privacy Commissioner of Alberta (for personal information and privacy concerns), the Alberta Human Rights Commission (for discrimination complaints), their MLA, and/or the Minister of Labour, depending on the nature of their concerns.

The workers’ compensation organizations in Saskatchewan, Manitoba, and Ontario each have a Fair Practices Officer that investigates service delivery complaints and attempts to resolve them. The Fair Practices Officer is a WCB employee who examines, investigates and reports on trends and potential systemic problems to the board of the organization. The Fair Practices Officer cannot change a WCB decision.

In New Brunswick the Issues Resolution Office offers a secondary review of a claims decision and also acts as an ombudsman to help resolve service issues. The Issues Resolution Office reports to the WorkSafeNB’s corporate secretary and general counsel.

Some people have suggested that Alberta should have a mechanism in its workers’ compensation system that provides a single point for people to raise concerns about WCB claims management and service delivery.

MEDICAL SERVICES

The timely communication of accurate medical information can impact decisions about a worker’s claim, how their claim moves through the WCB process, and even the worker’s income. For example, employers and those managing claims need to know the functional ability of the worker, so that they can determine what work duties are available within the worker’s abilities.

Physicians and other health providers are therefore key partners in the workers’ compensation system.

DID YOU KNOW?

The WCB surveys 1,600 workers and 1,600 employers each year for feedback on timeliness, respectfulness and completeness of information.



Workers’ compensation is excluded from the provisions of the Canada Health Act. The WCB negotiates with physicians and other treatment providers, who have interests and expertise in work-related injuries and issues, for access to their services. This sometimes enables the WCB to have injured workers tested and treated faster than these services could be accessed in the publicly-funded health system. The WCB pays these service providers directly for these services. The benefit to this is the reduced time it takes injured workers to be ready for employment, and it reduces employer costs.

RESOLVING DISAGREEMENTS ABOUT MEDICAL ISSUES IN A CLAIM

There can sometimes be disagreements about the medical issues in a worker’s claim. For example, the cause of the worker’s injury, the worker’s medical diagnosis, the worker’s treatment, and the worker’s ability to return to work. These issues can affect a worker’s benefits.10

In Alberta’s workers’ compensation system, Medical Panels are used to provide an impartial, independent decision-making process to resolve bona fide conflicts of medical opinions. For example, the Panel can resolve medical disputes between a worker’s physician and a WCB medical consultant.

When the WCB or the Appeals Commission for Alberta’s Workers Compensation (Appeals Commission) considers it appropriate, disputed medical information can be referred to a Medical Panel for review and recommendation (disputed information is considered in the context of the entire medical claim file). The findings of the Medical Panel are binding on the WCB and the Appeals Commission.

Medical Panels are composed of three physician members who are recognized as experts in their field and who are independent from the WCB. The panelists are chosen by the claimant (worker), the employer, and the WCB, from a list prepared by the Medical Panel Commissioner. The Medical Panel Commissioner is an independent officer who is not a WCB employee. At the hearing, the Medical Panel hears from the claimant and may conduct an examination.

Some have proposed expanding the role of the Medical Panel Office.

• Currently, the Medical Panel process can only be initiated by the WCB or the Appeals Commission. Some have suggested there would be value in enabling others (such as workers and employers) to initiate the Medical Panel process.

• The Medical Panel process does not include any form of alternative dispute resolution (ADR). Some have suggested that there might be a role for ADR to provide an opportunity to resolve disputes before they go to a more formal process,

10 Medical Panels http://work.alberta.ca/occupational-health-safety/medical-panels.html


• The Medical Panel Office performs an adjudicative function, but there are suggestions it could play other roles as well. For example, some say it might be valuable for the Medical Panel Office to provide educational or consultative roles with respect to the WCB’s medical consultants.

RETURNING TO WORK

One objective of the workers’ compensation system is to help the injured worker return to work. An injured worker’s return to employment can take several forms:

• They return to full or modified duties at their original employer (i.e., their employer on the date of accident);

• They are considered fit for employment and return to work at a different employer;

• They are considered fit for employment but do not return to their original employer, a different employer, or any employer.

RETURN TO FULL OR MODIFIED DUTIES AT ORIGINAL EMPLOYER

Ideally, when a worker is ready to return to work, they can go back to their original employer. This might entail returning with modified duties based on the worker’s abilities, which may be different than they were on the date of accident.

There is currently no requirement under Alberta’s Workers’ Compensation Act for an employer to return an injured worker to the workplace. Under Alberta’s human rights legislation, employers have a duty to accommodate workers with disabilities, unless the accommodation imposes undue hardship on the employer.

Alberta’s WCB does not handle disagreements or complaints about non-compliance with human rights legislation. Worker concerns about an employer’s failure to accommodate, or employer concerns about undue hardship, must be filed with the Alberta Human Rights Commission.

Several other jurisdictions (British Columbia and Northwest Territories are exceptions) have provisions in workers’ compensation legislation that require an employer and worker to cooperate with return to work efforts. Workers and employers in these jurisdictions can pursue their concerns through the workers’ compensation system, rather than having to initiate a separate process with a different body.

Some have questioned whether WCB should have more ability to influence or compel the employer or worker to cooperate on return to work.

A worker’s return to modified duties can have financial consequences for their employer. The employer may incur additional costs in adjusting their staffing as part of the accommodation. There are questions about whether the costs of providing modified work should be borne by the employer or subsidized through the WCB.

DID YOU KNOW?

In 2014, the Medical Panel Office received 44 requests to establish medical panels from the WCB and the Appeals Commission.

DID YOU KNOW?

WCB claims are never permanently closed; new information is grounds for the WCB to re-open a file and reconsider a decision.

Source: WCB


NO RETURN TO ORIGINAL EMPLOYER

A worker may not be able to return to the employment they had on the date of accident. Several factors that impact whether a worker can return to employment are beyond the control of the WCB (for example, prevailing economic conditions, the availability of work, business’ intent to hire workers, etc.).

When an injured worker cannot return to their pre-accident position, or where there is a permanent disability requiring a work modification, the WCB may provide Vocational Rehabilitation Services. These services are aimed at helping injured workers develop the skills and capabilities that will assist them to reach a state of employability.

Vocational Rehabilitation Services can take a varying amount of time to complete, depending on individual circumstances.

The WCB will assist a worker in assessing skills and abilities within their anticipated work restrictions and will help them develop a long-term goal, upon which a vocational rehabilitation plan will be based. Once the goal and the plan are identified, the worker will start 12 weeks of assisted job search, unless other skills or training opportunities have been identified. Through the program the worker can access various services, such as short-term skills training or assistance with developing a resume.

Potential earnings in the job are assessed using a survey methodology (labour market research conducted by an independent firm). These can be used to “deem” the worker’s earnings (and adjust their benefits), if the worker remains unemployed.

INVESTIGATIONS

The WCB has a Special Investigations Unit (SIU) that was established in 1994. The SIU investigates allegations of system abuse by employers, service providers and workers. The SIU is granted Alberta Peace Officer status under the Police Act and can lay charges under the Workers’ Compensation Act or the Criminal Code of Canada when appropriate.

Some wonder if the techniques and approach used in investigations may adversely impact an injured worker. On the other hand, WCB must exercise due diligence in ensuring fraudulent behavior and abuse of the system does not occur.

Those who choose to intentionally abuse workers’ compensation face the possibility of criminal and civil proceedings, as well as fines.


BENEFITS AVAILABLE TO WORKERS

LOSS OF EARNINGS

If a worker misses time from work beyond the day of the accident (a lost time claim), an injured worker receives monetary benefits based on their earnings as of the date of accident. These payments are non-taxable.

In 2016, injured workers eligible for temporary total disability (TTD) benefits receive 90% of their net earnings, up to a maximum insurable earning of $98,700 per year. The 2016 maximum insurable earnings amount translates into weekly compensation payments of $1,225.61.

When a worker becomes capable of returning to modified duties, the worker may be converted to temporary partial disability benefits if they incur a wage loss. These are calculated based on the impairment of the worker’s earning capacity. The average time from injury to first payment for all new lost-time claims is 23.21 days.11

When the WCB deems a worker is fit to return to modified work duties, the WCB assists the worker to secure that level of employment. The WCB will then pay to “top up” the worker’s pay. (That is, WCB will pay the difference between the worker’s modified work earnings and the worker’s original earnings on the date of accident). If the worker’s restrictions are determined to be permanent, a permanent clinical impairment will be assessed and vocational assistance may be required to secure alternate suitable employment.

TTD benefits may be available to a worker who is suffering from an aggravation of a pre-existing condition (e.g., a chronic back injury). The temporary benefits are paid until the aggravation has ended or reaches a medical plateau, at which time the WCB will evaluate whether there is any permanent impairment caused by the compensable accident.12

There are questions about the WCB’s current limits on insurable earnings. Some people have suggested that the current limits may be too low, given that wages in several occupations can be much higher than the current maximums. Others have suggested that the current limits should stay the same, but that workers should have the option to purchase additional coverage from the WCB for amounts that exceed the WCB’s current limits.

WCB BENEFITS

11 WCB preliminary 2015 results12 WCB Policy: 03-02 Part II www.wcb.ab.ca/pdfs/public/policy/manual/printable_pdfs/0302_2_app1.pdf

DID YOU KNOW?

The WCB applies a formula based approach for determining maximum insurable earnings (MIE). The objective of this formula is to ensure that the annual MIE adjustment keeps pace with wage growth such that the MIE covers the full wage of 90 percent of workers covered by WCB in the province.


PAYMENTS FOR PERMANENT IMPAIRMENT

In cases of permanent loss of function (e.g., loss of a finger), the WCB operates a dual award system consisting of loss of earnings benefits and non-economic loss payment (NELP). The NELP consists of a lump- sum payment intended to compensate for a permanent loss of function caused by a work-related injury.13 The payment is based on the degree of permanent clinical impairment of the worker.

Legislation also provides for an economic loss payment (ELP) for an injured worker with a permanent clinical impairment (e.g., loss of limb) who cannot return to their previous employment. This is paid for the worker’s working lifetime, or until the worker returns to the same level of earnings that they had on the date of accident.14

In circumstances where the worker is unable to secure suitable employment following vocational rehabilitation services, the WCB uses a “deeming” process15 to determine the post-injury economic loss by identifying “suitable employment”. Once the deeming process is complete, a worker’s compensation is adjusted to reflect the difference between the deemed earnings and the earnings on the date of the accident.

SPOUSAL AND DEPENDANT SUPPORT

If a worker dies as a result of an accident that is eligible for benefits, the WCB pays compensation to the worker’s dependants and assists with the payment of costs associated with the worker’s death.

The amount of compensation is based on the legislation in effect on the date of the worker’s accident. In general, compensation for dependants includes a pension and, for a dependant spouse (or adult interdependent partner), may include appropriate vocational services. Depending on the circumstances and date of accident , a variety of benefits such as allowances and pensions may be paid to other individuals as well (e.g., a worker’s dependant children and guardians).

The benefit structure for dependant spouses and dependant adult interdependent partners has three main purposes:

• provide financial support to the worker’s dependant spouse or dependant adult interdependent partner and dependant children until the children are 18 years old;

• help the dependant spouse or dependant adult interdependent partner become gainfully employed by providing vocational services and financial support during the vocational training period;

• provide ongoing financial support to spouses or adult interdependent partners who are not capable of becoming gainfully employed.

13 Workers’ Compensation Act, section 6914 Workers’ Compensation Act, section 56(7)15 Mah, Doug, Workers Compensation Practice in Alberta, 2nd ed, 3-12.4 The process of determining

impairment of earning capacity using “suitable employment” as a benchmark is sometimes referred to as deeming.


To be dependent, a child must have been wholly or partially dependent on the worker’s earnings at the time of the worker’s death. This includes, for example, a child who was not living with the worker but was legally entitled to support from the worker – even if the worker was not paying support at the time of death. Dependant children are considered to be dependent only until they reach the age of 18.

ECONOMIC LOSS PAYMENTS AFTER RETIREMENT AGE

The WCB may adjust a worker’s benefits when the worker reaches 65 years of age, to reflect that the worker would have retired from employment. (The WCB may not do this at age 65, if the worker can prove they would have worked longer.)

The WCB uses a formula to adjust the benefits, which estimates the impact that the worker’s disability had on their retirement income (i.e., due to the worker’s reduced opportunity to contribute to retirement savings plans). The adjusted benefits are generally payable for the lifetime of the worker.

BENEFITS ADJUSTMENTS

Benefits can be adjusted through cost-of-living adjustments that are calculated by the WCB using a specific formula. The WCB Board of Directors approves the adjustments, which are effective January 1 of each year.

The WCB’s cost-of-living adjustments are calculated on the basis of the worker’s earnings on the date of accident. The adjustments do not account for earnings increases a worker may have received due to career progression. Some suggest that benefits adjustments should take a worker’s potential earnings as well as career progression into account.

Others say this would not be practical, since it cannot be assumed a worker would have progressed in their career or received earnings increases.

DEEMING EARNINGS

Based on the goal that is set for a worker as part of Vocational Rehabilitation Services, the WCB will assess potential earnings in the job using a survey methodology (labour market research conducted by an independent firm). Select employers within each community where an occupation exists are surveyed to determine what they would pay employees hired into these occupations and how those earnings would increase to reflect growing experience for the first five years.

If a worker remains unemployed, but the WCB determines they are fit and ready to work in a potential position, the worker will be deemed capable of performing this work and earning this income. The WCB adjusts the benefits paid to the worker, to reflect the income that the worker is deemed capable of earning. The deemed earnings incorporate increases based on career progression that the worker would theoretically have in the deemed job.


Some people have suggested that this deeming process may not result in successful employment outcomes for injured workers, because the rehabilitation services provided may not have a connection to a worker’s employment history nor be based on work realistically available in the economy. Others have suggested that the deeming process makes sense, since it is not always viable for a worker to return to their original position or secure employment when they are ready.

NON-COMPLIANCE AND EFFECT ON BENEFITS

The process of addressing a worker’s injury is often complex. It can involve a number of assessments and treatments to successfully return the injured worker to work. This requires co-operation and participation on the part of the injured worker. The WCB has developed a list of approved treatment providers and will generally require an injured worker to see one of these providers.

On occasion, an injured worker might refuse to participate or cooperate with the WCB’s directions regarding medical treatment. This can happen for various reasons. For example, the worker might not agree with the treatment plan; they may wish to see a provider who is not on the WCB’s approved list; or they may wish to explore other treatment options (e.g., acupuncture versus surgery). If WCB cannot resolve the issue and the worker refuses reasonable medical treatment or engages in activities that endanger recovery, WCB may reduce or suspend compensation.

The WCB may determine a worker is non-compliant when the worker refuses to return to work even though the WCB has deemed them fit to return to full or modified duties. This can happen for various reasons. For example, their personal family doctor might disagree and advise them they should not yet return to work. In these cases, WCB may contact the family doctor to discuss the proposed work duties.

In instances where the WCB considers a worker to be non-compliant, the WCB currently has the authority to suspend payment of the worker’s benefits.

There are questions about what should happen, and what the WCB should be empowered to do, in circumstances where a worker does not cooperate with WCB directions regarding medical treatment or refuses to return to work.

DID YOU KNOW?

The Millard Health Rehabilitation Centre in Edmonton is operated by the WCB. When it opened in 1952, it was the first facility in Canada designed exclusively for the rehabilitation of injured workers. More information is available at https://www.wcb.ab.ca/millard-treatment-centre/


OTHER INCOME REPLACEMENT OPTIONS FOR WORKERS

If the WCB declines the payment of benefits, an injured worker’s options for income replacement can be limited. Some workers may be able to access private long-term disability insurance. However, these plans generally pay less than the WCB and the benefits they provide are taxable. Long-term disability insurance may also be used to offset benefit costs (e.g., pension, dental, etc.) as these are not covered by WCB.

Other income replacement programs such as Employment Insurance, the Assured Income for the Severely Handicapped and Income Support, and the Canada Pension Plan (CPP) Total Disability Benefit all have specific criteria that must be met to qualify for benefits. Payments may be less then what would be paid by the WCB and may be subject to time limits. Currently, no workers’ compensation board in Canada provides an emergency fund.


THE DISPUTE RESOLUTION AND DECISION REVIEW BODY

The Dispute Resolution and Decision Review Body (DRDRB) is appointed by the WCB Board,16 and is a required step before a formal appeal may be made. The members of the DRDRB are WCB employees.

A person with a direct interest in an adjudicative decision or an employer account decision can request an internal review of that decision by the DRDRB. A person has one year from the date a decision was issued17 to request a review by the DRDRB.

The DRDRB is able to review issues related to eligibility to benefits. Generally the parties to a DRDRB review are the worker and the employer. Parties to the DRDRB review are invited to make submissions. The DRDRB will review the file material, gather information and submissions from the parties, and attempt to facilitate a resolution. DRDRB decisions are not binding on the WCB. Most reviews are handled informally. In-person meetings to discuss resolution are offered on all review requests. In 2015, DRDRB received requests for review on 2,258 claims.18 Of those requests, 830 went forward to the Appeals Commission for external review.

Some have suggested the one year timeline for requesting a DRDRB review is too short. Others indicate it is sufficient since there is an opportunity to request extensions.

The Workers’ Compensation Act establishes a review and appeal process in the workers’ compensation system. The Act provides for an internal review and an external appeal for issues brought forward by either workers or employers. For example, workers may want to bring forward issues related to the level of benefits; employers may want to have account decisions reviewed.

REVIEW AND APPEAL OF WCB DECISIONS

DID YOU KNOW?

When a request for review is made, 95% are actioned in 40 days from when the DRDRB received the request.


DID YOU KNOW?

There were 830 DRDRB requests appealed to the Appeals Commission and 346 DRDRB decisions were overturned at the Appeals Commission.


16 Workers’ Compensation Act, section 45(1)17 Workers’ Compensation Act, section 45(2)18 2015 WCB Alberta Annual Report


THE APPEALS COMMISSION

The Appeals Commission is a body established under the Workers’ Compensation Act19 that is separate from the WCB. The Appeals Commission has adjudicators appointed by the Government of Alberta through a public recruitment process, as well as the Chief Appeals Commissioner, who also acts as CEO of the Appeals Commission.

The Appeals Commission has the authority to examine, inquire into, hear and determine all matters and questions arising under the Workers’ Compensation Act in regards to decisions made by the DRDRB. Workers, employers or anyone with a direct interest in a decision made by the DRDRB may appeal a decision to the Appeals Commission.

A written notice of appeal must be received by the Appeals Commission within one year from the date of the DRDRB decision. This period may be extended by the Chief Appeals Commissioner if there is a justifiable reason for the delay.20 The Appeals Commission may confirm, vary or reverse a decision of the DRDRB, and it may entertain new evidence during the appeal hearing.

There are generally two types of hearings: an in-person hearing, and a documentary-only hearing. Approximately 87% of appeals are held as in-person hearings, and 13% are held as documentary-only hearings. Additional statistics on Appeals Commission hearings is available in Appendix C.

The Appeals Commission is required to give all persons with a direct interest in the matter an opportunity to be heard and to present any new or additional evidence.21 The Appeals Commission must permit the WCB to make representation to the Commission as to the proper application of its policies, the Act or regulations related to the matter under appeal.22 It is unclear whether the WCB can attain full party status before the Appeals Commission to present evidence and to be heard.23

The Appeals Commission is required to follow the Workers’ Compensation Act and WCB policies.24

Presently, during a hearing the Appeals Commission limits its examination to the matters that are the subject of the appeal. Some have suggested the Appeals Commission should examine all issues impacting a claim, beyond the specific matters under appeal, if it is possible to resolve the matter in its entirety. Others say this would not be desirable, as it would raise the possibility of the Appeals Commission wading into matters that neither party wanted to revisit .

19 Workers’ Compensation Act, section 1020 Workers’ Compensation Act, section 13.2(8)21 Workers’ Compensation Act, section 13.2(6)(a)22 Workers’ Compensation Act, section 13.2(6)(b)23 Mah, Doug, Workers Compensation Practice in Alberta, 2nd ed. 2.4.1(d)(1)24 A Guide to the Appeals Commission, www.appealscommission.ab.ca/howtoappeal/Pages/Guide.aspx


ALTERNATIVE DISPUTE RESOLUTION (ADR)

Some have raised concerns that the Appeals Commission process may be too legalistic and daunting in nature, rather than an accessible process that workers and employers can use without the cost of formal legal representation.

The Workers’ Compensation Act permits the Appeals Commission to conduct a consensual resolution process (such as ADR)25 during the course of an appeal. It has been suggested that implementing this process may alleviate the requirement to go to more formal proceedings. However, no such process has yet been implemented.

Since the WCB Act already provides for a consensual resolution process, a question that arises is whether the Appeals Commission should implement some form of Alternative Dispute Resolution (ADR) to help resolve disputes before they go to a more formal process.

RECONSIDERATION OF APPEALS COMMISSION DECISIONS

The Workers’ Compensation Act allows for the reconsideration of Appeals Commission decisions. A reconsideration is not an appeal. Currently, there must be very good reasons for a reconsideration application to be successful. These reasons include:

• the presence of relevant evidence that was not available at the time of the appeal decision and which is likely to change the result of the original decision; or

• a significant defect in the appeal process or the content of the decision.

Some have suggested that the criteria the Appeals Commission considers for reconsideration of appeals may require more flexibility.

JUDICIAL APPEALS AND REVIEWS

The Workers’ Compensation Act provides that a decision of the Appeals Commission may be appealed to the Court of Queen’s Bench of Alberta. The appeal can only be on a question of law or jurisdiction.

A decision, acts or omission of the Appeals Commission (or the WCB) can also be subject to judicial review by the Court of Queen’s Bench of Alberta. A judicial review might occur in situations where the Workers’ Compensation Act does not explicitly provide a right of appeal. A judicial review is not an appeal, and it is not the role of the reviewing judge to re-try the case. The Courts have recognized that the Appeals Commission is a specialized tribunal created to deal with disputes in the specialized area of workers’ compensation, and are thus reluctant to interfere directly with decisions of the Appeals Commission.26

25 Workers’ Compensation Act, section 13.526 Boyd v JBS Foods Canada Inc, 2015 ABCA 380 at para. 54


Due to the deference provided by the Courts to the Appeals Commission it can be challenging to have a decision of the Appeals Commission overturned. This is why some have suggested the criteria for factors that allow the Appeals Commission to overturn or reconsider a decision should be expanded.

APPOINTMENT AND FUNDING OF THE APPEALS COMMISSION

The Chair and the members of the Appeals Commission are appointed by the Lieutenant Governor in Council. The Minister responsible for the WCB is also responsible for the Appeals Commission.

The Chief Appeals Commissioner and other commissioners are appointed to either three-year or one-year terms. Those eligible to be appointed for three years must be representative of either the interests of workers or employers.27 These appointments may be renewed up to a limit of 12 consecutive years, as provided for by the Alberta Public Agencies Governance Act.28

The Appeals Commission is funded through an annual levy on employers. The funds are collected by the WCB and remitted to the Crown, which in turn sends them to the Appeals Commission. This ensures there is no direct financial relationship between the WCB and Appeals Commission, helping provide independence to the Commission.

EMPLOYER APPEALS CONSULTING SERVICE

Employers in Alberta can utilize the Employer Appeals Consulting Service (EACS). EACS is provided by WCB account managers.

EACS can help employers understand the facts, policies and legislation used to make a specific decision, and help them determine whether to proceed with a formal review or appeal.

EACS will not accompany or represent an employer at an appeal. EACS can provide information that may help an employer resolve their issue, and it can offer advice to an employer on how to present their position in an appeal. Some people have suggested that employers should have access to WCB-funded representation at an appeal, similar to what workers have in the Office of the Appeals Advisor.

Employer advisors are available in five provinces: British Columbia, New Brunswick, Newfoundland and Labrador, Ontario and Prince Edward Island. Employer advisors in those five provinces are available to: provide advice on rights and obligations, assist with cost relief and issues related to workplace injuries and deaths, and assist or represent employers’ interests at appeals. These services are generally funded by the workers’ compensation system and offered at no cost.

27 Workers’ Compensation Act, section 10(1)28 Alberta Public Agencies Governance Act, section 14(2)

http://www.qp.alberta.ca/1266.cfm?page=A31P5.cfm&leg_type=Acts&isbncln=9780779761333&display=html


OFFICE OF THE APPEALS ADVISOR

The Office of the Appeals Advisor is operated as a department of the WCB, but under a separate mandate established by policy.29 It makes advisors available to inform and represent workers through the review and appeal processes.

Generally, the advisors are experienced former case managers. Through their training and certification in Tribunal Administrative Justice from the Foundation of Administrative Justice, appeals advisors have expertise in administrative law and its role in the review and appeals process. They also have the ability to interpret and apply the Workers’ Compensation Act and WCB policies.

An advisor can help a person determine whether they have grounds for review of a decision. An advisor may also suggest alternatives to filing an appeal. Advisors can accompany workers and represent them at Appeals Commission hearings.30

Some people question whether the Office of the Appeals Advisor is able to provide impartial and effective advice to workers, since it is not independent from the WCB. Others feel the services being provided are effective.

PRIVACY AND CONFIDENTIALITY

When a worker appeals a decision of the WCB, the WCB is required to provide the Appeals Commission with its records and information, including personal information (e.g., medical), relating to the claim or matter that is under appeal. The WCB is also required to provide the Appeals Commission with the written decision being appealed.31

On request, the worker (or the worker’s representative), the employer (or the employer’s representative), and any other person with a direct interest in the claim may also receive redacted copies of this information from the WCB.

Recognizing that privacy rights are important to everyone, it makes sense to consider how information sharing takes place in the appeals process. Questions have arisen regarding what and how information about a worker’s claim is presently shared with parties, and what safeguards the WCB uses to determine what information is to be shared.

29 WCB Policy 01-07-01, Part III, Application 1 https://www.wcb.ab.ca/pdfs/public/policy/manual/printable_pdfs/0107_1.pdf

30 Office of the Appeals Advisor brochure http://www.workeradvocates.ca/pdfs/WCB_OAA_brochure.pdf

31 Workers’ Compensation Act, section 13.2(5)

DID YOU KNOW?

In 2015, there were 2,115 new client requests for the services of an appeals advisor. 1,998 issues were resolved, 192 issues were withdrawn and members of the Office of the Appeal Advisor represent claimants at 621 hearings.

Source: WCB – Alberta 2015 Highlights


BOARD OF DIRECTORS OF THE WCB

The WCB is governed by a Board of Directors, which is appointed by the Lieutenant Governor in Council. The Board consists of a Chair, and up to three members considered to be representative of the interests of each of: employers, workers and the general public.32

The Board of Directors:

• guides the WCB’s strategic direction;

• appoints and evaluates the performance of the WCB’s President and CEO;

• determines the salary and benefits of the WCB’s President and CEO which are paid out of the Accident Fund;

• approves and monitors the WCB’s administrative budget and financial results;

• provides oversight of the WCB’s management of its business and affairs; and

• is responsible for establishing the operating policies of the WCB.

The Corporate Governance Policy Manual provides the guidelines from the WCB under which the Board of Directors operates.

The President and CEO serves as the communication link between the Board of Directors, which focuses on the WCB’s strategic direction, and the WCB administration, which carries out the WCB’s day-to-day operations. The President and CEO is accountable for the performance and employees of the WCB.

Varying opinions have been expressed about the relationship between these board members and the stakeholders they are considered to be representative of. Interest has also been expressed in the nomination and recruitment process for new board members.

As a public agency the WCB is subject to the Alberta Public Agencies Governance Act, which includes requirements that support effective governance.

WCB GOVERNANCE

DID YOU KNOW?

The Alberta WCB operates according to Principles of Alberta Workers’ Compensation approved by the board. These principles are available at https://www.wcb.ab.ca/pdfs/public/policy/manual/printable_pdfs/table_contents.pdf

32 Alberta Workers’ Compensation Act, section 5.


https://www.wcb.ab.ca/pdfs/public/policy/manual/printable_pdfs/table_contents.pdf

On May 18, 2016, the Government of Alberta introduced the Reform of Agencies, Boards and Commissions Compensation Act, which includes the WCB. If you would like to provide your feedback to government about this legislation and the compensation philosophy and approach you can do so at www.alberta.ca/abc-compensation.aspx. The WCB review panel will have access to the input collected that relates to the WCB as it continues its review.

WCB CORPORATE OBJECTIVES AND KEY DELIVERABLES

On an annual basis, the WCB Board of Directors establishes corporate objectives and key deliverables. Some of the measures and their results (from the 2015 WCB Alberta Annual Report) include the following:

• Returning injured workers to a state of fitness needed to return to work. With WCB support, 92.5% of injured workers achieved the fitness needed to return to work. This result exceeded the target of 90%.

• Delivering fair decision. Decisions are reviewed and audited to ensure they are fair. WCB’s average audit score of all decision audited was 94%.

Performance targets can drive the culture of an organization. Some have expressed concerns about how the achievement of corporate performance targets such as early return to work for injured workers are being rewarded. Others say that an injured worker’s chances of successfully returning to work increase significantly if they return to work within 3 months. Based on this, they suggest that the WCB’s performance measures are valid.

POLICIES OF THE WCB

The Board of Directors determines the need for and nature of consultation when a policy is changed or developed.33

On an annual basis, the WCB creates a Policy Development Plan that identifies the issues it plans to address during that year. In addition, if a stakeholder believes a policy should be changed, they can send in a written request to the Chair for a policy review.

The WCB has established a policy and consultation process which includes:

• Issue Identification;

• Research and Analysis;

• Policy Development/Amendment;

• Stakeholder Consultation;

• Approval and Implementation.

33 The Workers’ Compensation Board Mandate and Roles alberta.ca/albertacode/images/ags-Workers-Compensation-Board-MRD.pdf, page 7-8

DID YOU KNOW?

Past policy development reviews of the WCB have covered topics such as causation and psychological injuries. Sometimes the subject of a policy review or policy consultation can be controversial.


Consultation can include public and/or expert consultation. For the most part, consultation is conducted through the WCB website (posted for 60 days). Depending on the nature of the issue, the WCB may convene an in-person meeting.

Stakeholders can subscribe to receive an email notice when the WCB’s Policies and Information Manual is updated online or when a new policy is posted for consultation.

In British Columbia, there is a Policy and Practice Consultative Committee made up of representatives from WorkSafeBC (the WCB equivalent in BC) and the employer and worker communities. The committee provides input and advice to WorkSafeBC’s senior executive on stakeholder consultation processes, stakeholder perspectives on priority issues (e.g., policy, legislation) and the identification of stakeholder issues. In addition, on behalf of their communities, the committee is a forum to receive updates on key operational initiatives and share relevant information.

In Alberta, the WCB covers over two million workers and thousands of employers. Its policies therefore have wide-reaching consequences in the province. It is important to consider whether the WCB’s policy development process is adequate and effective. Some have questions about the process used by the WCB to evaluate whether its policies are achieving their intended goals.

REVIEW OF THE WORKERS’ COMPENSATION SYSTEM

The last comprehensive review of the workers’ compensation system in Alberta was conducted more than 15 years ago.

The Alberta Public Agencies Governance Act contains a general requirement for the Minister to review each agency’s mandate and operations every seven years. However, there is no requirement in the Workers’ Compensation Act to conduct a review of the entire workers’ compensation system within a specific time period.

Other Canadian jurisdictions have requirements in their legislation to review their workers’ compensation statutes and regulations on a regular basis. For example, Saskatchewan has a requirement to conduct a review every four years; Newfoundland and Labrador every five years; and Manitoba every ten years. Some have suggested Alberta should adopt a similar requirement.


ROLE OF WCB IN PREVENTION

The Occupational Health & Safety (OHS) program in Alberta is responsible for improving workplace compliance with OHS legislation through evidence-based prevention initiatives, education and enforcement activities. OHS is located in the Ministry of Labour.

Among its functions, OHS:

• is responsible for prevention activities that include: Work Safe Alberta; proactive strategic programs; the Certificate of Recognition (COR) Program; and the Work Right Campaign;

• educates workers, employers and the public through the use of bulletins, publications, e-learning programs and other educational materials;

• approves training programs across Alberta, such as Workplace Hazardous Materials Information System (WHMIS) training, First Aid training, and Spirometry and Lung Function training; and

• approves worker permits, such as the Blasters Permit Program and the Asbestos Permit Program.

Since OHS falls under different legislation, the WCB Review is not intended to conduct a detailed examination of OHS. However, since the workers’ compensation system impacts OHS, the WCB Review will examine interactions between the system and OHS.

The funding for OHS in Alberta is provided through the WCB. This approach is consistent with other jurisdictions in Canada. In some jurisdictions, however, OHS and workers’ compensation are housed in one organization. (See Appendix D for details.)

CERTIFICATE OF RECOGNITION

A Certificate of Recognition (COR) is awarded to employers who develop health and safety programs that meet provincial standards established by OHS.

PREVENTION OF WORKPLACE INJURY AND ILLNESS


A COR indicates that an employer’s health and safety management system has been evaluated by a certified auditor (called a “Certifying Partner”). Certifying Partners are organizations that work in partnership with the Government of Alberta to:

• develop health and safety systems;

• provide health and safety training and services;

• coordinate the audit process; and

• provide quality assurance.

Employers must obtain and maintain a valid COR to qualify for a financial incentive through the WCB.

The COR also has reputational benefits from a health and safety perspective. For example, some companies in Alberta require that their subcontractors hold a valid COR.

SAFETY ASSOCIATIONS

The WCB also administers grants of annual operating funding to seven Alberta safety associations, for the purpose of promoting education in accident prevention to employers. These grants are funded through a levy that is added to the WCB premiums of employers in the represented industries. In some industries, safety associations are funded directly by member contributions.

Industry and safety associations can:

• assist industry members with the development and implementation of health and safety programs;

• produce publications for industry including catalogues, posters and videos;

• coordinate audit services (including auditor training) to help employers assess their programs; and

• develop and deliver health and safety training for industry members.

The decision to fund a safety association is made by employers in the applicable industry. The majority of the employers (as measured by insurable earnings) must vote in favour of a funded association. The funds are collected by the WCB and distributed to the association in quarterly installments. The release of installments is contingent on a safety association submitting financial statements to the WCB.

Right now, it is unclear who safety associations are accountable to. It is also unclear whether there are regular evaluations of the outcomes being achieved by safety programs and associations. Some suggest there may be an enhanced role for WCB or OHS to play in the monitoring of the performance of safety associations and employer prevention programs, and the provision of rewards or incentives for performance.

DID YOU KNOW?

There are approximately 70 partners committed to promoting and improving health and safety in Alberta.


HEALTH AND SAFETY INFORMATION

Information gathered by the WCB represents the only available source of health and safety information that can be compared across employers and industries. This information is useful in setting health and safety policy and program direction. It is also often used by the public to evaluate the health and safety performance of Alberta’s employers. While the value of WCB information is evident, it has been identified by some that there are challenges and gaps in the data collected and reported such as unreported claims, lack of information on root cause of injuries and leading indicators, and accessibility of information.

The users of WCB information are diverse, including: the Government of Alberta; industry and safety associations; employers; researchers; health practitioners and service providers; workers; unions; other jurisdictions; and the public. The types of information available are also diverse, including: industry level claims; employer level claims; injured workers demographics; injury and illness claims; and financial aspects of employers and claims.

While the value of WCB information is evident, it has some challenges and gaps, such as unreported claims, lack of information on root cause of injuries and leading indicators, and accessibility and quality of the information. Also, workers’ claims data collection is not harmonized across different provinces and territories. These factors limit the usefulness of the information in the prediction of injury and illness risk. The WCB’s mandate does not explicitly require it to collect data for prevention purposes.

It makes sense to examine existing data gathering, and how this might be changed or enhanced to better inform prevention programs and foster continuous improvement in workplace health and safety performance.


EMPLOYER PREMIUMS

The WCB is funded through premiums assessed to employers. There are no tax dollars involved in the workers’ compensation system, and there are no deductions made from workers’ paycheques to fund the system.

Employer premiums are established each year. Employers are charged a certain dollar amount per $100 of payroll. This is known as the “assessment rate”. In 2016, Alberta has an estimated average assessment rate of $1.01 per $100 payroll. This average rate is the lowest in Canada, with other jurisdictions ranging from $1.11 to $2.65 per $100 payroll.34

There are a variety of reasons for the difference in average assessment rates between the provinces and territories (for example, different funding policies, historical fund balances, industries covered.) This makes it difficult to make fair comparisons.

An employer’s assessment rate is determined in the following way:

• The WCB assesses the overall financial picture of the workers’ compensation system. Using actuarial reports and financial forecasts, the WCB determines what it will need to pay out. A significant piece of this puzzle is the projected present and future costs of claims that are expected to be made to the WCB in the upcoming year. Historical data helps the WCB project these figures.

• On the basis of the overall financial picture, and with a view to its Funding Policy, the WCB determines what overall amount of money it needs to collect from all employers covered by the WCB in Alberta. This amount of money is determined so that the premiums collected in the current year will pay for all estimated present and future costs of claims that are made during that year.

• Based on the overall amount of premiums that need to be collected, the WCB determines premium rates for each rate group. There are 118 rate groups covering 364 industries. Some rate groups have only one industry in them. (For example, residential construction is one rate group.) Other rate groups include up to 20 industries. The premium rates of each rate group are set based on their historical pattern of claims costs. (This is sometimes called the “industry rate”.)

FUNDING AND FINANCIAL SUSTAINABILITY

DID YOU KNOW?

Approximately 70% of the costs of a current-year injury are paid well into the future. Many injuries have costs that continue to be paid for decades beyond the date of accident.


34 Association of Workers’ Compensation Boards of Canada – Key Assessment/Premium Rate Information for 2016 http://awcbc.org/?page_id=566


• Each employer within a rate group is then assigned their premium rate based on their record of claims costs. This is called the “experience rating”. Based on how the employer stacks up to the average of their rate group (or “industry average”), their premium rate for large employers can be set up to 40% higher or lower than the industry rate. Small employer rates can be set up to 5% higher or lower than the industry rate.

This process of determining employer premiums is intended to achieve three things. First , it ensures that every employer pays something, thereby maintaining the collectivist nature of the workers’ compensation system. Second, it provides for fairness by distributing the premiums based on which employers and industries are more likely to be the source of WCB claims and costs. Third, by reflecting the different claims histories of different employers and industries, it builds accountability into the system.

Some employers pursue cost relief to mitigate claims experience costs. This is where costs are partly or fully removed from the employer’s experience record, and the costs are then shared by all employers in the rate group. Cost relief does not affect the overall costs of a claim, nor does it change the benefits received by a worker.

The WCB’s use of an “experience rating” component means that an employer’s WCB claims influence the WCB premiums they pay. Some have suggested the experience rating gives employers an incentive to suppress WCB claims. Others say the experience rating gives employers an incentive to undertake safety programs and measures that prevent injuries and illnesses in their workplaces.

INDUSTRY CUSTOM PRICING

The WCB offers Industry Custom Pricing (ICP) as an option for the calculation of employer premiums. Participation in ICP is industry- based. The WCB works with representatives of an industry to customize a pricing model for that industry. Various options exist . For example, an industry can choose to change the experience rating component, so that individual employers’ claims records are weighted more heavily in the calculation of WCB premiums.

An industry must choose to move to ICP. Employers in the industry are polled on the proposed ICP program. If a majority of the industry votes in favour, the ICP program is then implemented for all employers in the industry.

An industry can later choose to opt out of the ICP program and revert back to the WCB’s standard pricing model, by way of a similar majority vote.

In an industry-wide vote about ICP, a “majority” is defined as at least 50% of the industry as measured by insurable earnings. This means that, in some industries, a handful of very large employers can decide the vote, even if they constitute a minority of the total number of employers in the industry.


As a result , some have raised concerns that the WCB’s approach to establishing an ICP program creates inequities between smaller and larger employers. Others say the approach is not inequitable, because it is based on the number of workers in the industry, not the number of employers.

PARTNERSHIPS IN INJURY REDUCTION

The WCB contributes to the prevention of workplace injuries by participating in the Partnerships in Injury Reduction (PIR) program.

The PIR program is a voluntary program in which employer and worker representatives work collaboratively with the government to build health and safety management systems.

A Partner is an association, corporation or organization that commits to taking a leadership role in health and safety by entering into a formal agreement with the Alberta government. The Government and each Partner sign a Memorandum of Understanding outlining the specific commitments made by each organization.

The WCB offers an incentive (in the form of a premium reduction) to employers who participate in PIR. Some have questioned whether this incentive makes sense, since it is not connected to the employer’s experience rating (i.e., their claims record). Others have suggested that the incentive makes sense, as it encourages employers to build safety management systems.

THE WCB ACCIDENT FUND

The Workers’ Compensation Act requires the WCB to maintain sufficient funds in the WCB’s Accident Fund for the payment of present and future compensation to injured workers.

The concept of future compensation is important. In many instances, the WCB will be required to pay benefits to a worker for a long time period. Benefits will also be subject to inflation over time. There needs to be sufficient money in the Accident Fund to cover these long-term costs.

The Accident Fund is considered fully funded when the total of all assets equals or exceeds 100 percent of total liabilities.

The Accident Fund is managed so that it can generate investment returns. These investment returns can sometimes be better or worse than expected. Management of the Accident Fund involves a lot of actuarial science and the knowledge of investment professionals.

In managing the Accident Fund and establishing employer premiums, the WCB follows its Funding Policy, for which the Board is responsible.

DID YOU KNOW?

In 2015, $966.7 million in benefit costs were incurred by WCB (excluding administration costs.)


The Funding Policy has several goals:

• Minimize the risk of being unfunded – To ensure injured workers benefits are secure, and that there is sufficient money in the Accident Fund for the payment of current and future benefits.

• Current employers pay for today’s accidents – Stability is maintained in the Accident Fund by having today’s employers pay for the current and future costs of today’s accidents. This reduces the risk of passing the costs on to the next generation of employers.

• Minimize cost volatility to employers – To ensure that volatility of the Accident Fund does not create volatility in employer premiums. The objective is that premium rates reflect the current and future costs of today’s accidents.

• Minimize the total cost charged to employers – The Accident Fund is managed to earn a rate of return that covers the annual growth in the liabilities associated with current and prior year accidents.

To achieve the goals of the Funding Policy, the WCB has established a target funding range for the Accident Fund of between 114% and 128% . This range was developed in consultation with experts independent of the WCB and the use of asset-liability modelling tools. The WCB indicates that the funding range, and the modelling that supports the range, are reviewed each year to ensure they remain appropriate.

If the funded ratio of the Accident Fund falls below the target funding range (i.e., lower than 114%), the WCB can decide to collect additional money from employers in order to bring the Accident Fund to required levels. This will be done in the form of a levy.

Conversely, if the funded ratio of the Accident Fund rises above the target funding range (i.e., greater than 128%), the WCB can decide to distribute a portion of surplus to employers. When the WCB does this, any money distributed is from better-than-expected investment returns, not the premiums that were collected.

This is akin to using a portion of interest from an investment, without touching the principal of the investment. Employer premiums are like the principal, and they stay in the Accident Fund so that they can fully fund the present and future costs of claims. Interest amounts that are realized from better-than-expected investment returns can be taken out of the Accident Fund and distributed to employers.

Questions have arisen about the WCB’s target funding range and its implications for premiums, levies and distributions. Some people say that the WCB should freeze or cut premiums so that it does not have a surplus in its Accident Fund. Other people say that freezing or cutting premiums would go against the principle that today’s premiums pay for today’s accidents and would raise the risk that there would be insufficient money available to pay the current and future costs of benefits for workers. Still others say that the Accident Fund should retain a comfortable surplus, in case markets are volatile and the Fund’s investments fall in value.

DID YOU KNOW?

Over the past 10 years the WCB’s funded ratio has ranged considerably, from a low of 104% to a high of 140%. This reflects the volatility that can occur in the marketplace, and hence, in the Accident Fund.



Some of the differences between workers’ compensation and the private insurance industry are summarized in the table below:

Originally published in Douglas R. Mah’s book, Workers’ Compensation Practice in Alberta, 2nd ed., Carswell. Reprinted with permission of the author and publisher.

APPENDIX A: WORKERS’ COMPENSATION VS PRIVATE INSURANCE

WORKERS’ COMPENSATION PRIVATE INSURANCESelf-regulating, exclusive jurisdiction subject to statutory review and appeal and judicial review and appeal.

Regulation by the Superintendent of Insurance.

Compulsory for all industries under the Workers’ Compensation Act, voluntary for exempt industries.

Voluntary except for compulsory auto insurance.

Statutory monopoly given to the Workers’ Compensation Board (WCB).

Competitive marketplace for both brokers and providers.

Mandatory coverage cannot be cancelled, and claims must be honoured even if premiums are not paid.

Policy can be cancelled for non-payment of premiums.

The WCB has no choice of risk and cannot refuse coverage to any employer that is subject to mandatory coverage.

Insurers have choice of risk and the right to reject customers,

Mandatory coverage or the right to claim cannot be forfeited for breach of the statute by the employer or the worker.

Breach of conditions may result in forfeiture of the policy or rejection of a claim.

Claims can always be reopened. Claims can be finally settled.

Disputes are resolved by the statutory review and appeal process or administrative law proceedings.

Disputes resolved by legal action in the courts.

The WCB is not-for-profit . Excess premiums can be rebated.

Private insurers are for-profit .

The WCB has a public law duty to workers and employers.

Private insurers have a contractual duty and must act in utmost good faith.

The WCB can only pursue third party action against non-participants.

Private insurers subrogate against one another.


The information below outlines the number of claims that the WCB determined were ineligible for payment of benefits, based on the reasons identified:

The information below outlines the volume of claims administered by the WCB in 2015.

APPENDIX B: WCB CLAIM STATISTICS

CLAIMS VOLUME IN 2015Active claims as of January 1 28,586

New lost-time claims 26,029

New medical-aid-only claims 107,408

Total new claims reported 133,437

Recurrent claims (previously inactive claims that required further adjudication or case management. Claims may reopen for a number of reasons, such as payment for medical aid or requests for further compensation benefits)

18,899

Total Claims Administered 180,922

INELIGIBLE CLAIMS IN 2015

Lost-time Claim

Medical-aid-only claims

Total Ineligible Claims

Insufficient information available to process claim

133 3,827 3,960

Not covered under Workers’ Compensation Act

246 2,756 3,002

Injury or illness not arising out of/in course of employment

2,009 4,948 6,957

Total 2,388 11,531 13,919

* Recurrent claims are previously inactive claims that required further adjudication or case management. Claims may reopen for a number of reasons, such as payment for medical aid or requests for further compensation benefits. (Source: WCB Annual Report.)

Active claims as of

January 1, 2015 28,586

Total new claims reported

133,437 Including Lost-time

26,029 Medical-aid-only

107,408

Total Claims Administered

in 2015 180,922

Recurrent claims* 18,899


Of the appeals heard by the Appeals Commission in 2014-15, 57% were confirmed, 19% were varied and 24% were reversed.

The top five issues of appeal were:

• acceptability of claim 16%,

• additional entitlement 14%,

• temporary total disability 12%,

• Economic Loss Payment (ELP) Calculation 10%, and

• rehabilitation services 7%.

In 2014-15, the Appeals Commission received 1,068 requests for appeal (including 959 initial requests, 76 reconsiderations and 33 time extension requests). In that same time period, 1,128 appeals were concluded (including 991 initial requests, 111 reconsiderations and 26 time extension requests). Workers submitted 83% of the appeals and employers submitted 17%.

The average number of days from the date the appeal is filed to the first hearing date offered was 157 days.35

APPENDIX C: APPEALS COMMISSION STATISTICS

35 Appeals Commission 2014-2015 Annual Report https://www.appealscommission.ab.ca/Reports/Annual%20Reports/2014-2015%20Annual%20Report.pdf


Overview of the Organizations Responsible for Occupational Health & Safety.36

APPENDIX D: ORGANIZATIONS RESPONSIBLE FOR OCCUPATIONAL HEALTH & SAFETY

Enforcement Regulations Training/ Education

Prevention Funding

Alberta Government Government Government Government WCB

British Columbia

WorkSafe BC* WorkSafe BC WorkSafe BC WorkSafe BC WorkSafe BC

Saskatchewan Government Government Government Government WCB

Manitoba Government Government Government SAFE Work Manitoba

(independent arm of the WCB

governed by a prevention

committee of the WCB board

of Directors

WCB

Ontario Government Government Government Government Workplace Safety and Insurance

Board

Quebec Commission des normes,

de l’équité, de la santé et de la sécurité

du travail (CNESST)*

CNESST CNESST CNESST CNESST

Newfoundland and Labrador

Government Government WorkplaceNL WorkplaceNL WorkplaceNL

New Brunswick

WorksafeNB* WorksafeNB WorksafeNB WorksafeNB WorksafeNB

Nova Scotia Government Government WCB WCB WCB

Prince Edward Island

WCB WCB WCB WCB WCB

Yukon WCB WCB WCB WCB WCB

Northwest Territories and Nunavut

Workers’ Safety and

Compensation Commission







Workers’ Protection

Fund

* These entities deliver workers’ compensation.

36 Association of Workers’ compensation Boards of Canada – 2015 – Occupational Health & Safety: Who is Responsible? http://awcbc.org/?page_id=77


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