Introduction
The Canadian Union of Public Employees (CUPE) is Canada’s largest union. We represent 480,000 workers from coast to coast including 180,000 members in the province of Ontario. Prior to outlining our particular concerns CUPE would first like to thank the WSIB for the opportunity to participate in these province-wide consultations on coverage. The WSIB is to be commended for making available to stakeholders the discussion paper, Coverage Under the Ontario Workplace Safety and Insurance Act, which we believe sets forth a logical argument for the expansion of the WSIB coverage base to include more employers and workers. We agree wholeheartedly with this position.
From the discussion paper we also see that the Board is interested in hearing about the workplace insurance provided by private carriers. This brief will do just that. We will show that, when compared to WSIB coverage, private workplace insurance is inadequate and does not meet the needs of our members. To make our case we will relate the experience of one group of workers; namely, CUPE developmental service workers in Ontario.
>CUPE Developmental Service Workers in Ontario
CUPE represents approximately 4,000 developmental service workers employed in numerous Associations for Community Living (ACL’s) throughout Ontario. Developmental service workers work with children and adults who have developmental disabilities and sometimes physical disabilities as well. Developmental service workers provide clients with residential and vocational supports that enable clients to live more full lives within the community.
It is widely held that developmental service workers experience unacceptably high rates of injury due, for example, to workplace violence. Preliminary findings from a research project currently underway in Ontario has revealed this to be the case. CUPE and academic researchers, with the support of employer groups, are conducting the research project. Other research has shown that the number of accepted time-loss injuries in Ontario’s combined social services and health sector, of which developmental services is a part, has shown a significant increase in recent years. Data from the Association of Workers’ Compensation Boards of Canada shows 7,826 time-loss injuries for Ontario in the year 2000; in the previous year the number of time-loss injuries was 7,102 (AWCBC (2001), “Work Injuries and Diseases, Canada 1998-2000”: 82).
Associations for Community Living (ACL’s) may acquire WSIB coverage for its employees through application; that is, there is no mandatory requirement for ACL’s to provide WSIB coverage to its workers. It is disconcerting that our members continue to suffer workplace injuries at a time when employers have been opting out of WSIB coverage in favour of private insurance.
The costs of private insurance is far less expensive than the costs associated with WSIB coverage; however, our experience also shows that WSIB coverage is far superior to the coverage offered by private insurance carriers. In general, private insurance coverage is inferior for a number of reasons including, but not limited to, the following:
- Injured workers oftentimes have no access to an independent appeals process in instances where the carrier denies claims.
- Long Term Disability (LTD) plans are usually 100% worker funded.
- To qualify for Short Term Disability (STD) workers must be totally disabled.
- Lack of entitlement for workplace injury caused by accidents as outlined under Section 2(1) of the Workplace Safety and Insurance Act (the Act).1
- Lack of entitlement for recurrence of original workplace injury.
- Lack of entitlement for workplace aggravation of a pre-existing injury.
- Lack of vocational rehabilitation, training and upgrading services.
- Lack of entitlement for exposure to occupational disease
- Lack of entitlement for impairment due to gradual onset injury (e.g., carpal tunnel syndrome, tendonitis, bursitis, back injury, etc.).
- Lack of entitlement for non-economic loss payments due to permanent impairment.
- Lack of entitlement for full wage loss of earnings due to permanent impairment.
- Lack of entitlement for original work-related injuries that have deteriorated to the point of permanent impairment.
- Lack of entitlement to loss of earnings benefit, which is indexed to the cost of living.
- Lack of entitlement for work-related chronic pain (e.g., fibromyalgia, psychotraumatic disability, etc.).
- Lack of entitlement for secondary conditions that arise from original workplace injury.
- Lack of fairness in adjudication to establish claim entitlement. Section 13(2) of the Workplace Safety and Insurance Act (the Act) provides for fairness in decision making with respect to claims. Private carriers do not subscribe to the same philosophy.2
- Finally, private carriers tend not to provide coverage for part-time workers who are injured in the course of employment.
On the WSIB website it is written:
“Workers who are not currently employed in mandatory covered industries are completely dependent on their employer’s decision to apply for coverage and, in many cases, receive compensation that is inadequate and uneven.”
This we know to be true. As previously discussed, ACL’s are not legally required to provide WSIB coverage to its employees. In fact, in recent years some ACL’s have been opting out of WSIB in favour of private insurance due to cost considerations. But as we have shown the coverage provided by private carriers is grossly inadequate to meet the needs of developmental service workers given the high rates of workplace injury that these workers often endure. We agree with the assertion by the WSIB that,
“There is a lack of fairness in the system right now when workers in some industries are deprived of the opportunity to secure coverage” (WSIB online).
This lack of fairness can be remedied by legislating mandatory WSIB coverage for all employers and workers in Ontario, including developmental service workers employed in ACL’s throughout the province.
Conclusion
Presently, 30% of workplaces and more than one million workers in Ontario are without WSIB coverage. And in the absence of significant change to the present system, it is anticipated that even fewer workers will be covered under WSIB over the next decade. The result is that a large (and growing) number of Ontario workers lack access to fair and adequate disability insurance.
In the absence of universal, mandatory coverage it is not possible for the Board to carry out its mandate of prevention. Even the Board itself has admitted that under the present system such a mandate is impossible. The following is an excerpt from the WSIB website:
“The WSIB’s current mandate includes providing prevention services to all Ontario workplaces including those not requiring WSIB coverage. It is impossible to complete this mandate as long as 30% of the workplaces are unknown to us and outside our coverage.”
In order for the board to “eliminate all workplace injuries and diseases for all Ontario workplaces” (WSIB (Jan. 2002), Coverage under the Ontario Workplace Safety and Insurance Act: 10) all workers and employers would have to be covered under WSIB legislation.
As it now stands, employers that are not legally obligated to provide WSIB coverage to workers do not incur the health-care costs associated with workplace injuries; rather, those costs are paid for by the provincial health-care system. It is our position that health-care costs arising from workplace injuries and illnesses should not be paid for out of public dollars or by workers themselves; instead, the employer should shoulder the responsibility for such costs, since workplace injuries are just that – injuries sustained while in the course of employment. It should also be recognized that this current practice puts an added financial strain on our already beleaguered health-care system.
Injured workers who are not provided WSIB coverage, due to employer choice, are in danger of becoming doubly victimized. First, they have to cope physically and emotionally with an injury that will to some extent have a negative and enduring impact on their activities of daily living. Second, there is a real danger that injured workers may find themselves unemployed and seeking financial support from, for example, employment insurance and/or social assistance, neither of which provide ample income to provide for the necessities of daily life such as food, clothing and shelter. Employers that provide WSIB coverage are legally required to reinstate and accommodate workers who are injured in the course of employment. This legal requirement does not apply to employers that are not covered under WSIB. We believe that the remedy to these dilemmas is full, mandatory WSIB coverage for all employers and workers in Ontario.
1. Section 2(1) of the Act reads as follows: 2(1) In this Act, “accident” includes, (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment.
2.Section 13(2) of the Act reads as follows: If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contraryis shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
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