Adjudication

Three to five study participants reported that the adjudicators responsible for their claims changed frequently. Claimants were often frustrated by the inconveniences and delays which sometimes resulted before new adjudicators became familiar with their claims. An advocate for injured workers who was interviewed for this study estimated that 75% of current WCB adjudicators have less than two years experience.

RECOMMENDATION 30: That the WCB take action to provide for improved continuity of adjudicators, particularly for claimants with significant disabilities and/or complex claims.

Maintenance of Employment Benefits

At least six of the injured workers with disabilities who participated in this study experienced financial difficulties while receiving WCB wage loss benefits based on 90 per cent of the net income they were earning at the time of their injuries (80 per cent after two years). At least six participants also noted that they had lost employment benefits such as health, dental, and pension plans. Although it is difficult to place a monetary value on these benefits, it is clear that their loss constitutes an additional financial burden for workers who receive part of their total employment compensation in the form of fringe benefits.

Ontario employers are required to maintain their contributions to injured workers’ employment benefit plans for up to one year following injury. This requirement includes healthcare benefits, life insurance, and pension plans, but excludes vacation and sickness credits, Employment Insurance premiums, and Canada Pension Plan contributions. The recent Royal Commission on Workers’ Compensation in British Columbia has also recommended that that province adopt a similar “maintenance of employment benefits” requirement.

RECOMMENDATION 31: That the Government of Manitoba examine the Workers Compensation Act and consider requiring employers to maintain contributions to injured workers’ healthcare benefit plans, life insurance policies, and private/company pension plans for at least one year following injury.

This and previous research indicates that many injured workers with significant disabilities experience difficulty returning to employment, and many of those who do return to work have unstable post-injury employment histories. Section 43 of the Workers Compensation Act and Regulations states that the WCB may establish or contract for the provision of healthcare and other kinds of benefits for injured workers receiving WCB wage loss benefits for more than two years. Subsection 43(3) states that “A benefit program or group insurance plan established by the board under this section shall be funded by the board from the accident fund, by participants in the benefit program, or in such other manner as the board may determine.”

RECOMMENDATION 32: That the Workers Compensation Board of Manitoba establish a healthcare benefit program for claimants who have received wage loss benefits for more than two years.

Communication

Three to five participants reported that they were not informed of benefits and services to which they later learned they were entitled.

RECOMMENDATION 33: That the Workers Compensation Board of Manitoba provide all claimants with print materials describing the full range of benefit/service entitlements, and direct WCB staff—especially adjudicators and vocational rehabilitation consultants—to discuss these benefit entitlements with claimants.

At least six participants indicated that they felt intimidated, threatened, or pressured in their communications from/with WCB staff.

RECOMMENDATION 34: That the Workers Compensation Board of Manitoba ensure that all communications with claimants are open, non-intimidating, readily available, and in clear language.

Accident Reporting

Two study participants indicated that they sustained injuries they initially felt were too minor to bother officially reporting. When their injuries turned out to be more serious, they experienced difficulty having their claims for compensation accepted.

RECOMMENDATION 35: That the Workers Compensation Board of Manitoba undertake a broad public education initiative to advise workers that all workplace accidents—no matter how minor—should be reported promptly.

Three to five study participants sought assistance from the Government of Manitoba’s Worker Advisor Office. More than half were very pleased with the assistance they received, but others were not. The most common source of dissatisfaction was that the Worker Advisor Office did not follow the injured worker’s appeal through to its conclusion.

RECOMMENDATION 36: That the Government of Manitoba review staffing levels and caseloads at the Worker Advisor Offices in Winnipeg, Brandon, and The Pas, and increase staffing if the review indicates that current Worker Advisors cannot adequately assist the injured workers who seek assistance.

There are many community agencies in Winnipeg which provide vocational rehabilitation and job search assistance to persons with disabilities. Outside of Winnipeg, these services are more limited.

Well over half of the injured workers who participated in this study had not made use of the services provided by disability agencies. Most of those who had accessed services provided by these agencies reported that the agencies were helpful. Two participants who had not accessed these agencies’ services reported that they were reluctant to do so because they did not regard themselves as “persons with disabilities.” One community-based disability agency in Winnipeg has formed a relationship with the provincial injured workers association, and assists injured workers with disabilities referred from that association.

RECOMMENDATION 37: That community-based disability agencies in Manitoba explore methods to strengthen their ties with organizations of injured workers.

During consultations with agencies, two reported that they had previously had fee-for-service arrangements with organizations like the Workers Compensation Board (e.g. Manitoba Public Insurance.) They described conflicts between attempting to provide quality services to persons with disabilities and satisfying the contracting organization’s concerns with timeliness and costs. Two agencies funded through the federal-provincial EAPD/VRDP cost-sharing program reported that they sometimes assist former WCB claimants, but their funding agreements specifically prohibit them from providing services to persons who have active WCB claims. One agency without this restriction estimated that approximately five per cent of the agency’s caseload are active WCB claimants. The WCB provides wage subsidies for claimants who become employed with the agency’s assistance.

RECOMMENDATION 38: That the Workers Compensation Board of Manitoba maintain relationships with community-based agencies which provide other vocational rehabilitation and employment services to persons with disabilities.

When the WCB concludes claimants’ eligibility for benefits and services, claimants receive transitional services about non-WCB resources which may be able to assist them. Discussions with WCB staff indicated that transitional services may provide departing claimants with some information on external employment resources, but are primarily focused on financial and psychological issues.

The WCB booklet entitled Where to Now provides discontinued claimants with extensive information about sources of financial assistance, but it does not include any information about community-based agencies which may be able to assist injured workers with disabilities become re-employed. A recently developed WCB transitional services brochure entitled Helping you get the help you need: Your Guide to Community Support Services and Resources also provides brief information about financial and psychological counselling services. A list of community resources includes the names and telephone numbers of two agencies which provide employment services to persons with disabilities. It does not, however, provide any information about the kinds of services these agencies’ provide, their eligibility criteria, etc.

RECOMMENDATION 39: That the Workers Compensation Board of Manitoba produce a new claimant information document listing detailed information about community-based agencies which provide employment assistance to persons with disabilities. This document should describe each agency’s contact information, eligibility criteria, and services provided.

The 1989-90 Ontario survey of injured worker with disabilities found that union members were more likely to return to work—and sooner—than non-union members (Johnson, Butler, and Baldwin, 1995). Union members, however, were just as likely as non-union members to have subsequent periods of unemployment (Butler, Johnson, and Baldwin, 1995).

The Canadian Injured Workers Alliance’s 1995 survey found that most respondents who were union members—including most of those who had returned to work—were dissatisfied with the role their unions played in the return to work process. “Views about union assistance were largely based on criticism of the union for inaction on behalf of the injured worker’s case” (CIWA, 1995a: 65-66; 1995b: 151-156).

During the past decade, many unions and other labour organizations have devoted considerable attention and effort to accommodating and assisting injured workers and other persons with disabilities. In Manitoba, the Workers with Disabilities Project partnership formed in 1992 provides a forum for labour and disability organizations to better understand each others’ concerns and undertake projects of mutual interest. The Manitoba Federation of Labour’s workers’ compensation advocacy course has helped many unions in Manitoba assist and represent their injured members more effectively. Nationally, the Canadian Labour Congress will hold a conference in Montreal in November 2000 to develop strategies to address the needs of injured workers, workers with disabilities, and workers with family members who are disabled.

Like the Canadian Injured Workers Alliance study, however, this research found that at least six of this study’s participants who were union members were less than satisfied with the role(s) their unions played in their efforts to return to work. When these findings were discussed with staff of unions, many stressed that unions are not a formal part of the workers’ compensation system, and therefore have limited ability to influence injured workers’ returns to work. They argued that employers (who control re-hiring decisions) and the WCB (which controls financial benefits and vocational rehabilitation services) have far greater influence.

Some union staff also commented that some union members have unrealistic expectations of what their WCB entitlements are, and/or what their unions are able to do for them if they are injured. They also reported that some union members do not actively seek their unions’ assistance for problems the unions may be able to help them with, or only seek their unions’ assistance when the problems have grown so complex that there is no longer much assistance the union can provide.

RECOMMENDATION 40: That Manitoba unions educate their members about how their unions can assist them if they are disabled by a workplace injury. Also, that Manitoba unions educate their members about how and when to access this assistance.

Some union staff reported that some unions devote considerable resources to assisting members whose workplace injuries have resulted in significant disability, but that other unions give less priority to workers’ compensation issues. During this study, some unions who were contacted showed great interest, and devoted considerable effort to helping recruit potential study participants from their memberships. Others, however, including several large unions, did not demonstrate the same level of interest. Additionally, most unions and labour councils contacted outside of Winnipeg did not show great interest in this study.

A 1996 Canadian Labour Congress report argues that organized labour should make “health, safety, environment and workers’ compensation issues popular and political and owned by the labour movement—health and safety is a union’s issue! This means taking health, safety, environment and worker’s compensation into the mainstream of the labour movement” (New Strategies Sub-Committee, 1996).

RECOMMENDATION 41: That the Manitoba Federation of Labour educate representatives, officers, and members of Manitoba unions about issues and concerns of injured workers with significant disabilities, particularly issues and concerns related to re-employment.

The 1989-90 survey of injured workers with permanent disabilities in Ontario found that unions enhance return to work by protecting unionized workers’ jobs while they recuperate from their injuries. The survey also found, however, that union membership did not have a significant impact on the long-term success of union members’ post-injury employment (Butler, Johnson, and Baldwin, 1995).

The Manitoba Federation of Labour (MFL) developed and delivers a popular course on workers’ compensation advocacy. As a result of this course, injured workers in Manitoba who are members of unions now have greater access to advocates who can assist them with the adjudication of their claims, mediation of disputes, preparation of appeals, etc. In addition to an advocacy course like the MFL’s, the Ontario Federation of Labour has also developed a specialized course on return to work strategies. Some of the topics covered in this course include essential duties, suitable work, accommodation, job re-structuring, rehabilitation assistance, employers’ obligations, and contract language.

RECOMMENDATION 42: That the Manitoba Federation of Labour develop a specialized course on return to work strategies for injured workers with significant disabilities, and offer this course to all Manitoba unions.

During consultations with agencies which provide employment assistance to persons with disabilities, three to five agency representatives suggested that unions sometimes are barriers to employers’ efforts to accommodate injured workers. They reported that some employers who appear to be willing to accommodate an injured worker or other person with a disability argue that they cannot do so because the union might grieve the accommodation. They also expressed frustration with the priority unions’ place on seniority. (One agency representative commented “for unions, the only resolution mechanism is seniority.”)

During subsequent consultation with unions, some union staff explained that unions have a responsibility to represent all of their members, and seek accommodations that are least disruptive to the provisions of the collective agreement. Union staff also reported that employers sometimes deliberately restrict accommodation options to ones that infringe on these provisions (especially seniority), then insist they cannot accommodate the worker because of the possibility that the union might grieve such an accommodation.

This and other topics raised during conversations with disability agencies and unions suggest that there is still considerable work to be done to ensure that the two groups understand and respect each others’ priorities, concerns, and challenges. From 1992-97, the Workers with Disabilities Project provided many opportunities for disability and labour organizations to network and develop better understandings of each other, but there have been relatively few of these opportunities since 1997.

RECOMMENDATION 43: That the Workers with Disabilities Project provide regular forums for staff and representatives of disability agencies and unions in Manitoba to develop better understandings of each group’s priorities, concerns, and challenges.

Injured workers groups (a) provide peer-based support to individual injured workers, and (b) speak for and lobby on behalf of injured workers as a group. The 1995 Canadian Injured Workers Alliance survey found that most of the injured workers who participated reported that they felt that injured workers groups were helpful (CIWA, 1995b: 161-165).

Only three to five of the injured workers with significant disabilities who participated in this study were aware of the provincial injured workers’ organization based in Winnipeg. Even fewer participants outside of Winnipeg were aware of several fledgling injured workers groups in rural Manitoba.

These groups receive little, if any, funding. For example, the provincial organization is currently staffed by two part-time employees funded by project grants from the Workers Compensation Board of Manitoba.

RECOMMENDATION 44: That the Workers Compensation Board of Manitoba provide funding for the development and maintenance of consumer-driven injured workers’ groups which (a) provide services and supports to individual injured workers, and (b) lobby on behalf of all injured workers in Manitoba.

Our contacts with injured workers groups in Manitoba suggest that most have limited memberships and organizational resources.

RECOMMENDATION 45: That the Workers Compensation Board of Manitoba provide additional funding to injured workers groups for the purpose of enhancing their advocacy, community development, management, and other organizational skills.

Labour and consumer-based disability organizations have considerable experience in community development, group advocacy, project development, lobbying, etc.

RECOMMENDATION 46: That the Manitoba Federation of Labour, the Manitoba League of Persons with Disabilities, and other members of the Workers with Disabilities Project partnership strengthen their links with injured workers’ groups, and offer their expertise to assist these groups to develop and enhance the skills required to effectively support and advocate on behalf of injured workers with disabilities.