When a worker gets injured on the job, the issues that the victim and the family face can be challenging. In addition to the physical and psychological hardships, difficulties can also arise from the process involved in filing a claim, getting assistance and getting back on the job.
Sixteen-year-old Eric Olivieri was working at a summer job when a 10-tonne piece of steel became unhooked from the crane overhead. It sliced into his arm, elbow, leg, knee and pelvis and pinned him across his lap. Emergency crew didn’t know if Eric would survive the accident. When he was rushed to the hospital, blood had pooled in his right leg and he heard he might lose it: “When I woke up after the surgery, I asked if I still had my leg and they said yes.”
Everything changed that day for Eric and his family, but the events to follow were fairly typical of what happens after a workplace injury: a visit from a worker adviser two days later, who explained to Eric’s parents what to expect in the days and weeks to come; the subsequent accident investigation; visits from the Ministry of Labour and Workplace Safety and Insurance Board (WSIB); paperwork.
As far as injury claims go, Eric’s was fairly straightforward. The WSIB has paid for all his medication and other necessities, including a wheelchair and bed. His mother was surprised, however, to find out how profoundly the accident would affect the family.
Carlene Olivieri says hospital staff either didn’t seem to know or gave conflicting answers. There was talk of a social worker who was supposed to provide information and support but never materialized. Leaving Eric’s side was out of the question, so Carlene had to leave her fairly new job, where she had no seniority. The family was financially in a panic and hospital expenses were adding up, with parking and meals.
A WSIB nurse case manager helped. “She explained things to us,” says Carlene, “but we were in such a daze I probably didn’t ask the right questions.”
As time wore on, Carlene found out what kinds of assistance she was eligible for. Every step required research and patience – how to apply for employment insurance, how to find out if she was eligible for a caregiver’s allowance to hire a VON for Eric, and so on. The WSIB web site contains great information about compensation, but Carlene found much of it herself through a lot of digging.
“Someone needs to do a better job at getting people the information,” she says. “What about immigrants, or other people who don’t know how it works? How do they find out what’s available? They probably miss out.”
What’s supposed to happen
After an incident, the workers’ compensation system can provide benefits to cover both loss of function and loss of earnings. Getting there involves a barrage of paperwork and several pre-set formalities. Injured workers must get proper medical treatment immediately after the incident, and report it to the employer as soon as possible. They must report any significant change in their condition or income that may affect their benefits, and are expected to cooperate with the employer and the board in their early and safe return to work.
Employers, too, have responsibilities after an injury. They must report the incident to the board, stay in contact with the employee, and do what they can to get the employee back to work.
Ontario’s WSIB processes about 360,000 claims a year. That’s 40 claims every hour, 24/7. The board reports that within the first month after an accident, 83 per cent of claims go through without a dispute. Ninety-seven per cent of all claims are processed, and disputes resolved, within the first three months. The remaining three per cent – an estimated 10,800 cases in Ontario alone – are problematic.
Andy Emmink is a claims adjudicator, investigator and decision review specialist who has held a variety of positions with what was then called the Ontario Workers Compensation Board, and a series of management positions in the WSIB's Appeals Branch. Emmink represented employers for the 10 years of his consulting practice but has spent the rest of his career representing injured workers. He has concerns – namely that current prevention efforts often obscure the interests of the workers who do get hurt.
“I think there has to be a renewed emphasis on the interests and rights of the people for whom prevention has failed.”
Robert Lindsay hears similar accounts from injured workers all over Canada. A spokesperson for the Canadian Injured Worker Alliance, he says they often feel left out of the loop when it comes to important decisions affecting their own future.
An injured worker himself, Lindsay was caught in a blast in a coal mine in 1994 and burnt his lungs. Afterwards, hospital staff wanted to do a lung biopsy but took it from the wrong lung. Today he has chronic pain, reactive airway dysfunction, asthma and RSD reflex. He never went back to work.
Lindsay receives workers’ compensation from the Saskatchewan Workers’ Compensation Board, but says the process wasn’t easy. “Going through it was probably one of the most stressful things I’ve ever done in my life.”
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What goes wrong
Aside from the pain and confusion that result from a workplace injury, worker representatives report a litany of other issues:
Staying in touch. Injured workers and their employers are required by law to be in regular contact while the worker is recovering. Sometimes that works. Other times, says Emmink, workers feel harassed, or the employers feel like it’s a waste of time to keep checking in, especially if it’s something like a routine case of repetitive strain injury. “There’s basically a real lack of understanding amongst the parties regarding the goals and objectives around the injured worker,” he says.
Deeming. When early and safe return to work is unlikely, the compensation board assesses the need for a “labour market re-entry” (LMR) plan or “vocational rehabilitation.” The worker is “deemed” to fit a certain kind of job, based on his or her functional abilities, skills, and pre-injury salary. Often, jobs are hard to find or the injured worker might not get hired. That’s a real bone of contention, says Jorma Halonen, director of the Office of the Worker Adviser in Ontario. “Whether you get this type of job or not is immaterial,” he says.
Ontario has responded to this problem by adding the word “available” to the legislation. The proposed or “deemed” work must not only be suitable but “available.” It helps, says Emmink.
Another common concern is that of low wage earners, says Steve Mantis, a long-time injured worker advocate who has received awards for his contributions to the cause. “If you were earning $10 an hour or less, the LMR could say you could pump gas, you don’t need help, goodbye, you’re not entitled to any benefits,” he says. “And we don’t know what happens to those people. They’re no longer part of the compensation system.”
New problems with an old work-related injury. “What we have seen so often,” says Mantis, “is people will get hurt, recover over time, go back to work, get hurt again because accommodations or conditions weren’t appropriate, and they have limitations or residual injuries. Over a series of incidents, the disability gets progressively worse.”
Failure to retrain. The injured worker usually has a time limit and must be retrained by a set date as outlined in the LMR plan. “We’ve heard lots of stories of people getting sent for school while still on heavy medication,” says Mantis. These people can’t concentrate and have trouble retaining information. If they start missing days or falling behind, they may be deemed to be uncooperative. “All along the way, people seem to kind of fall off the wagon.”
Poverty. Halonen says there’s a myth out there that injured workers profit from their injuries. Unless you’re the widow of someone who worked in a uranium mine and receive retroactive benefits after years of appeals, he says, don’t expect a windfall. Even inflation protection, which workers had in the past, is no longer provided. “There are some who are successfully rehabilitated, but some don’t and become very poor.”
On the right track
For years injured worker groups have raised numerous concerns, alleging that the boards are being partial to the interests of their financial stakeholders – the employers. But Halonen, who represents worker’s interests at workers’ compensation appeals, believes the boards are generally fair. “They do have to deal with the employers in dealing with the assessments, and there’s pressure to keep the assessments down.” Still, at least in his own jurisdiction, Halonen says no one could rightfully say the WSIB has an employer bias.
The chair of the WSIB says its prime mandate is the injured worker. Since Mike Harris’ government changed Ontario’s Workers Compensation Board to the Workplace Safety and Insurance Board in the 90s, prevention has been a key focus. At the same time, the board took the word “compensation” out of its name and mission statement.
“But I’ve made our mandate very clear,” says Steve Mahoney, adding that employers have said accusingly that since he became WSIB chair two years ago, the playing field has tilted more in favour of the injured worker. He hopes that’s true.
“We want to see them get back to work, and there’s nothing worse for us than witnessing the deterioration physically and mentally of an otherwise healthy person just because of an injury.”
The board also recognizes that an injury, and the entire process, can be an emotional strain on the worker. Front-line employees take worker sensitivity training to help them show more empathy and better understand workers’ frustrations and fears.
If indeed three per cent of claimants are not getting their claims resolved, Mahoney has instructed his staff to focus on that three per cent and find out what the problems are.
“The system is not perfect, but it does work,” he says. “If there’s one thing I’ve heard for 30 years it’s that injured workers want dignity and respect…We’re striving very much to understand that and to deliver respect and dignity to the people who are injured.”
What injured workers have been reporting for decades – including a high incidence of unemployment and depression – may soon be backed by hard data. The Research Action Alliance on the Consequences of Work Injury (RAACWI) is a community-based partnership conducting research on the worker’s compensation system and its role in the economic, social and health consequences of work injury.
Ontario’s WSIB provides core funding to RACCWI and is more than receptive to the research findings. After meeting with RAACWI’s representatives, Mahoney has initiated a full review of the WSIB’s experience rating program, which sets a high standard for safety and gives monetary rebates to employers that meet the criteria. RAACWI claims that the system somehow allows a rebate even, in some cases, at facilities where a worker has died on the job.
five-year program is in its third year and promises to uncover what really happens to workers – physically, financially and emotionally – long after a workplace injury.
As for Eric Olivieri, recovery is going well. He spent three months in a wheelchair but is walking now. His limbs and pelvis are held together by screws and rods. There’s still tingling in his knee and a lot of pain, especially where healthcare providers have had to break up scar tissue. And his mother says the emotional scars persist. “He talks a lot in his sleep,” Carlene says. “I’ve heard him say, ‘Get it off me, get it off me.’”
Thankfully, he feels much better today than when friends first saw him in pain and heavily medicated after the injury. “It wasn’t a pretty sight,” he says. “They couldn’t stand seeing me like that and only stayed a couple of minutes.”
A few weeks later they visited him at home, though, and stayed the night. “We had a huge sleepover, 10 kids in our living room,” he says. “It was awesome.”
He knows he’s lucky to be back in their world.