Discussion and Recommendations

These recommendations are based on the findings of the interviews and focus group meetings with injured workers with significant disabilities, as well as previous research, workers’ compensation legislation and policies in other provinces, and consultations with community-based disability agencies, unions, advocates for injured workers, and WCB staff.

WCB staff who reviewed a draft of this report indicated that the WCB has already made some changes which address—at least partially—some of the recommendations. Nevertheless, the Workers with Disabilities Project believes that all 46 of this report’s recommendations remain relevant.

Duty to Accommodate

More than half of the injured workers who participated in this study—including most of those who had managed to return to work—felt that the employers for whom they were working at the time of their accidents did not actively facilitate their re-employment. At least six reported that their employers simply told them that there was no suitable work available for them. Other employers provided alternate work that study participants felt was demeaning because it was unsuited to their skills and previous work experience. Three to five participants felt their employers’ efforts to accommodate them were designed to result in failure.

Previous research indicates that injured workers whose employers accommodate and re-employ them are more likely to have more stable, long-term post-injury employment histories than injured workers who are not accommodated and re-employed by their pre-injury employers (Butler, Johnson, and Baldwin, 1995). A WCB Vocational Rehabilitation Consultant interviewed during this project indicated that employers’ attitudes towards persons with disabilities are a significant barrier to VRC’s efforts to assist claimants in returning to work.

The Canadian and Manitoba Human Rights Codes prohibit employers from discriminating against persons with disabilities. Injured workers with disabilities may, therefore, file a human rights complaint if an employer refuses to re-employ or accommodate them. Very few study participants had done so.

RECOMMENDATION 1: That the Workers Compensation Board of Manitoba develop a policy to advise all employers, unions, injured workers, and WCB staff that the Canadian and Manitoba Human Rights Codes prohibit discrimination against persons with disabilities, and that failure to reasonably accommodate is a form of discrimination.

RECOMMENDATION 2: That the Workers Compensation Board of Manitoba provide training on duty to accommodate to all WCB case management, vocational rehabilitation, and employment services staff. This training should include the roles and responsibilities of WCB staff in the promotion, implementation, and/or monitoring of the accommodation and re-employment of injured workers with disabilities.

Manitoba is one of the declining number of provinces whose workers’ compensation legislation does not include a statutory requirement for employers to accommodate and re-employ injured workers. Except for Newfoundland, every province east of Manitoba does include duty to accommodate in its workers’ compensation legislation, and the recent Royal Commission on Workers’ Compensation in British Columbia recommended adoption of a similar provision in that province’s legislation.

RECOMMENDATION 3: That the Government of Manitoba explore adding a provision to the Workers’ Compensation Act which would require employers to accommodate and re-employ injured workers with disabilities.

Modified Work

Three to five study participants outside of Winnipeg worked for employers who have disability management programs which, the participants felt, pressured them to return to work prematurely. One participant reported that his employer has a modified work program where injured workers with serious injuries and disabilities are sometimes paid to do nothing. These participants felt their employers’ aggressive return to work programs were not intended to facilitate the rehabilitation and employment of injured workers, but rather, to contain the companies’ workers’ compensation costs.

RECOMMENDATION 4: That the Workers Compensation Board of Manitoba promote and support the development of worker-based disability management programs which provide injured workers with disabilities with suitable, meaningful, and sustainable employment.

Study participants employed by employers with aggressive return to work programs felt that WCB staff should play a more active role in ensuring that these return to work arrangements are appropriate and sustainable (e.g. by inspecting work sites, doing physical demands analyses, on-going monitoring, etc.)

RECOMMENDATION 5: That the Workers Compensation Board of Manitoba revise policy 43.20.20 to provide for on-going monitoring of modified/alternate work arrangements, to ensure that these arrangements provide injured workers with suitable, meaningful, and sustainable employment. ^[45]

Effectiveness of Vocational Rehabilitation Services

Previous research indicates that many injured workers with disabilities in Canada have difficulty returning to work (Johnson and Baldwin, 1993). Additionally, many of those who initially return to work subsequently have unstable employment histories (Butler, Johnson, and Baldwin, 1995). The literature also indicates that benefits paid to injured workers with significant disabilities who have not returned to work account for a disproportionately large percentage of the total cost of workers’ compensation (Allingham and Hyatt, 1995; Johnson, Butler, and Baldwin, 1995).

The Workers Compensation Board of Manitoba’s 1998 annual report states that worker satisfaction with the WCB’s services has improved steadily from 6.2 (on a scale of 10) in 1994 to 7.1 in 1998. These figures, however, include a large number of claimants with simple uncomplicated claims for minor injuries which heal quickly and completely after very brief work absences. Union representatives and advocates for injured workers report that satisfaction decreases significantly for claimants whose injuries result in permanent disabilities which keep them off work for more than a few months.

According to Vocational Rehabilitation and Program Planning staff, the WCB of Manitoba has not recently conducted any internal research on the effectiveness of vocational rehabilitation services for claimants with significant disabilities. This Workers with Disabilities Project study provides a valuable qualitative “snap shot” of some of the major barriers to re-employment experienced by injured workers with disabilities in Manitoba, but it does not examine the long-term employment patterns of injured workers with disabilities who receive assistance from the WCB.

RECOMMENDATION 6: That the Workers Compensation Board of Manitoba conduct or fund a major quantitative study of the employment outcomes of claimants with significant disabilities. Given the literature which indicates that an initial return to work is not an accurate predictor of long-term employment success, this research should examine employment outcomes for at least several years post-injury.

Eligibility

WCB Policy 43.00 states that “Vocational rehabilitation may be provided, at the discretion of the WCB, where it is needed to reduce the human and financial effects of a work-related accident. While discretionary, vocational rehabilitation should be consistently applied to all eligible workers.” Policy 43.00 also states that one of the conditions resulting in eligibility for vocational rehabilitation services is a long-term loss of earning capacity. The policy defines “long-term” as the earliest of (1) six months, (2) when it is determined that the worker will not be able to perform her/his pre-injury work without help, or (3) where there are reasonable indicators that there is a risk of chronicity.

One study participant met every one of these eligibility criteria, but reported that she was never offered any vocational rehabilitation services by the WCB.

RECOMMENDATION 7: That the Government of Manitoba explore subsection 27(20) of the Workers Compensation Act and consider making vocational rehabilitation services an entitlement of all claimants who may experience a long-term loss of earning capacity, or meet other current eligibility criteria detailed in policy 43.00.

RECOMMENDATION 8: That the Policy Committee of the Workers Compensation Board of Manitoba review policy 43.00 to ensure that vocational rehabilitation services are offered to all claimants who have not successfully returned to stable employment six months after injury.

Adjustment

The Canadian Injured Workers Alliance (CIWA) reports that “Returning to work is not as simple as making the work place accessible and the job fit or even learning new skills, as important as all those things are. Injured workers must cope with fundamental changes at a deeply personal level” (CIWA, 1995a: 2).

Most of the participants in the current study who had severe disabilities reported being offered services to help them adjust to their disabilities. At least six other participants, however, did not recall being offered these kinds of services. All had significant disabilities, but generally less severe disabilities than most of the persons who were offered adjustment services. Nevertheless, many of those who reported that they did not receive adjustment counselling also reported that they had experienced difficulties coming to terms with their disabilities.

RECOMMENDATION 9: That the Workers Compensation Board of Manitoba ensure that all workers who sustain permanent disabilities—even mild or moderate disabilities—are offered services to help them through the process of adjusting to their disabilities.

Vocational Testing

Three to five participants who were dissatisfied with the vocational goals developed by their WCB Vocational Rehabilitation Consultants reported that they did not receive any formal testing to assist in the selection of an appropriate vocational goal.

RECOMMENDATION 10: That the Workers Compensation Board of Manitoba ensure that all claimants who are eligible for Vocational Rehabilitation services receive formal vocational testing to help in the selection of realistic and appropriate vocational goals.

Individualized Written Rehabilitation Plans

Policy 43.00 states “Where rehabilitation services are provided, the goals and responsibilities of the worker, the WCB, and the employer (where involved) will be identified through a written vocational rehabilitation plan.” At least six study participants reported that they did not have formal Individualized Written Rehabilitation Plans (IWRP’s). Two were persons with particularly severe disabilities who were not currently pursuing re-employment. Others were at early stages of their vocational rehabilitation (e.g. assessment, selection of vocational goals). Others, however, reported that they had received—or were still receiving—vocational rehabilitation services, but did not recall having formal Individualized Written Rehabilitation Plans.

RECOMMENDATION 11: That the Workers Compensation Board of Manitoba ensure that—as currently described in Policy 43.00—an Individualized Written Rehabilitation Plan is developed for each claimant who receives vocational rehabilitation services, and that the claimant receives a copy.