Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: 2019 new directions report on B.C.’s WCB

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

The B.C. Workers Compensation Board’s (WCB or the Board) website and annual reports contain no images of anyone injured.

This is consistent with how the Board currently administers claims.

The October, 2019 report to B.C.’s Minister of Labour, New Directions Report of the Workers’ Compensation Board Review, 2019 (at p. 35) observed three particularly influential changes within the last two decades:

  • 2002’s organizational and legislative changes;
  • 2005’s re-branding of the Board as “WorkSafeBC” and changing focus and mandate; and
  • 2008’s significant introduction of a computerized Case Management System (CMS) to its decision-making process.

BC’s Board is one of the only boards in Canada responsible for both compensation and workplace safety.

Its mandate shifted in 2005, away from compensation and toward a focus on safety.

However, as the Dyble Report, Macatee Report, Helps Report and the Coroner’s verdicts after workplace fatalities (here and here) at Babine Forest Products in Burns Lake and Lakeland Mills in Prince George (here and here) confirm, workplace injuries have not disappeared.

They cannot simply be ignored away.

The Board is heavily focused upon returning people to work (RTW). This may be with little regard to the person’s condition, or whether healing or treatment must first occur.

The New Directions Report observed (at p. 52) that:

if RTW is simply used as a quick way to get injured workers off benefits, RTW efforts will have no credibility and will not be effective for most workers. Injured workers will correctly have no confidence in such a compensation system.

The New Directions Report discusses how the RTW focus is achieved on a daily basis through the RTW KPI (at p. 101-102):

The Board’s use of “RTW” outcomes as one of its 10 Key Performance Indicators (KPIs) affects,

or may appear to affect, the Board’s decision-making practices for plateau decisions.

The KPI for RTW defines “…success is when an injured worker is able to return to work within

26 weeks…, the return to work is voluntary (the worker does not object) and it is safe and

durable (with no subsequent inability to work for 30 days after return…” As noted in the 2018

Annual Report, the 26-week milestone for return to work is used as a key statistical measure

because the [Board’s statistical] Guidelines indicate that the majority of injuries show recovery within six months.

The 2020 KPI target is to improve this number from 81.2% (the 2018 result) to 83% in 2020. In

the case management system, the “duration of disability” is measured by the number of days

that a worker receives TWL. When the plateau decision effectively ends TWL, the claim owner

enters a “RTW event”.

It is this measurement which underlies the KPI; there is no independent tracking or reporting of actual successful RTW outcomes or long term RTW outcomes (past 30 days) despite many requests for this to occur.

…Effectively the KPI is a measurement of the Board’s success at ending TWL on a statistical “norm” of recovery. Too many workers report being forced back to work “hurt” for there to be confidence in this measurement is a meaningful measure.

Further, the Review heard from many Board sources that the KPI has, in effect, supported the use of the statistical “norm” for claims adjudication…. front-line workers receive increased scrutiny from managers and senior leadership as TWL claims approached the RTW target dates in CMS and many expressed deep concern about the pressure that they received to issue “plateau” decisions in serious cases as the worker’s claim reached CMS milestones. Claims which went beyond this date were intensely watched so as not to exceed 240 days (another target) and “keeping the 240 bucket low” was an explicit target in offices. …

Given this, I recommend that the Board discontinue the practice of using the RTW KPI as a measurement of Board performance. It creates practices and perceptions which are not consistent with a worker-centred approach and substantially undermines … the fairness and quality of RTW decisions…[and] would also help change the service culture at the Board to one focused on realistic RTW successes. (p. 101-102)

So if you have been injured at work, chances are good that within 26 weeks, a decision will be made that you are to return to work, regardless of your condition. Chances are even better that this will occur within 240 days.

The New Directions Report was critical of other KPIs, too (at p. 54-55):

The 2018 KPI measurements were that 79% of injured workers reported a “good or very good” “overall experience” with the Board, 7% (56 workers) said they had a “poor or very poor” experience and presumably, the remainder 14% reported an “average” experience.

I have concerns about the use of this figure to measure “worker satisfaction”…. as a KPI, the rating purports to measure worker satisfaction for purpose of assessing the Board’s delivery of compensation services to injured workers.

… It explicitly dismisses “dissatisfaction” as primarily due to “sour grapes” and masks some serious service delivery issues. Issues which are not recognized, cannot be addressed. It is also inconsistent with the high level of complaints from injured workers, which prompted this Review. … A retired, long- term director of the Board wrote in his submission to the Review:

It is absolutely ludicrous to claim that 93% of workers and/or employers today are as satisfied as the current Board proudly boasts. I am reminded of a Disraeili quote (often attributed to Mark Twain) “There are three kinds of lies: lies, damn lies and statistics”. I have met hundreds, if not thousands, of workers during my career and I seriously doubt that even 50% were reasonably satisfied”.

… this KPI engenders little confidence that the Board appreciates or is committed to improving service to injured workers. I recommend that it be discontinued.

The Board’s 2019 annual report confirms that the Board continues to use these KPIs.

It is time to eliminate KPIs. The Board ought not to be using them to arbitrarily deny people who are injured at work their statutory entitlements.

Next week, more from the New Directions report.

In case you missed it?

Maple Leaf Foods owed no duty of care to Mr. Sub Franchisees

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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