Compensation Café: Bill 41- Stepping Stones or a Stonewall?
Written by: Janet Patterson, WELLS Director
This blog series is meant to cover all things related to Workers’ Compensation. It is managed by one of our WELLS Directors, Janet Patterson.
Over the last 5 years, the NDP government has been “inching” towards a fairer WCB system and the changes are not insubstantial. The incremental changes made by this B.C. NDP government to the Workers’ Compensation Act (Act) since 2017 include:
- Bill 9 (effective May 17, 2018) – a mental disorder presumption is added to the Act, for “eligible occupations” (defined) and the definition of “firefighter’ is extended.
- Bill 18 (effective May 16, 2019) – the presumptions for cancer, heart injury, heart disease & mental disorder are extended to wildfire fighters & investigators & First Nations firefighters.
- Act is Revised (effective April 6, 2020) – the Act is “modernized” & reorganized but not otherwise changed
Bill 23 – made many changes in 2 phases . The changes in Bill 23 are summarized in https://www.worksafebc.com/en/resources/law-policy/act-amendments/legislative-change-a-primer-on-bill-23?lang=en
- Effective August 14, 2020 – most changes in Bill 23 come into effect;
- Effective January 1, 2021 – the changes to WCB pensions (restored dual system of pensions & revised age of retirement provisions) come into effect.
Bill 41 – changes are made in 4 phases:
- Effective November 24, 2022 –CPI Indexing is restored & there is new protection from claims suppression;
- Effective April 3, 2023 – payment of interest is allowed in some circumstances and there is greater access to IHP reports at WCAT;
- Effective May 1, 2023 – a Fair Practices Commissioner is established;
Effective at some future date, to be determined by Regulation
- There is a new “Duty to Cooperate” for workers, in setting Light Duties after an injury; and
- There is a new “Duty to Continue Employment” of an injured worker if possible – for employers with over 20 workers. (This is essentially a “Duty to Accommodate” which will be addressed through the compensation system, including WCAT.)
What have these changes meant, in total, for injured workers?
This is an important question given that past efforts to modernize and reorganize the WCB, now over 100 years old, have been “wholistic”, not incremental. One past effort began in 1988, when the Social Credit government asked an Advisory Committee to make recommendations on the “Structure of the Workers’ Compensation System”. The Advisory Committee was Chaired by Don Munroe Q.C and included the Chair of the WCB, the Deputy Minster of Labour, the Presidents or CEOs of a number of Business associations, including the Business Council of B.C., the B.C. Federation of Labour and other Unions, including the CUPE, Building Trades and BCNU. This Advisory Committee issued a 12 page report, unanimously recommending significant changes to WCB’s governance structure, replacing Commissioners with a Board of Governors, and to compensation’s appeal structure, creating an internal body (Appeal Division) under a Chief Appeal Commissioner. Their 1988 report may be one of the last occasions in which all parties and their representatives, demonstrated the will to work together to establish a fair compensation system.
The next period saw employers organizing outside the WCB structure, to have a greater voice in compensation matters. The Employers’ Forum was formed in 1992, to bring together most employer associations into a single organization, to act as an advocate for employers and to be the “primary liaison” between WorkSafe and the employer community. In 1993, the Forum, represented by Alan Winter, intervened in a judicial review, Brand et. al. v. WCB A932031 (November 15, 1993). This case established the right of an employer to get disclosure of a worker’s claim file in an appeal. The remainder of the 1990’s saw increasing conflict between employers, led by the Employers Forum, and worker representatives. Near the conclusion of a multi- year OH & S Regulatory Review, the Chairman of the Board, Jim Dorsey, was fired and the Board of Governors was replaced by the Panel of the Administrators. The NDP government of the time appointed the Royal Commission, chaired by Judge Gill, to address some of these matters.
But before the recommendations of the Royal Commission could be considered, the new Liberal government of Gordon Campbell, appointed Alan Winter to conduct a wholistic compensation review, without public consultation. After a few short months, Mr. Winter issued his Core Review, and Bills 49 and 63 quickly followed, completely restructuring the compensation system, including its decision-making authority, accessibility and appeal processes. The new legislation also dramatically changed and reduced compensation benefits for injured workers. The resulting devastation was the subject of our 2009 report - Insult to Injury.
So what about the NDP’s incremental approach? We recognize, of course, that this approach is more comfortable, giving all stakeholders time to adjust to any changes.
But an incremental approach has two big disadvantages. First, it is designed to limit the scope of change. It cannot, and does not try to, address the systemic failures of the 2002 compensation system and it is unlikely to change the Board’s culture of stigmatizing injured workers. To engage in this incremental approach is to give up a “wholistic” approach to creating a modern worker-centred compensation system.
Second, an incremental approach tends to water down even limited change. The Employers’ Forum has a powerful and sophisticated voice in compensation matters and many in the Forum are hostile to even modest efforts to create a “worker-centred” system. This means that many of the incremental legislative changes are packaged with Employer-friendly modifications. Bill 41 reflects the government’s timid balancing act, in which it tries to give some workers some relief, while offering something to employers as well.
Given the incremental approach and trade-offs in Bill 41, most worker advocates have assessed this Bill as providing some important gains (e.g. payment of interest), some uncertain gains (the Duty to Accommodate for some workers) and some deeply troubling provisions. Of special concern is the workers’ new “Duty to Cooperate” with employers in the formation of Light Duties, after a work injury. Bill 41 has no requirement that the worker or their doctor be consulted about the suitability of the proposed duties. The Board will only get involved if the worker makes a complaint, an adversarial process which is detrimental to effective rehabilitation and which may delay wage loss benefits. Clearly, this new “Duty” is a step back for workers .
Bill 41 is also a missed opportunity, as most “best practices” Return to Work (RTW) Guidelines recommend that a compensation board be assigned an “honest RTW expert” role in assisting the parties to reach a safe, viable and sustainable RTW solution on a collaborative basis. Having a RTW specialist play a key role in RTW arrangements is an almost unanimous recommendation in such guidelines. Instead, Bill 41 keeps the Board outside workplace arrangements after an injury and leaves these arrangements solely to the employer.
In my view, these RTW provisions as a whole, actually prevent the Board from fulfilling its primary responsibility to ensure a safe workplace for injured workers.
The Ministry of Labour has declared that the changes in Bill 41 “will restore fairness for workers injured on the job and their families”. Many advocates disagree, flagging the “give and take” of Bill 41 quite differently. The following two assessments of Bill 41 highlight concerns about the impact of this Bill on injured workers and on the compensation system.
- The law firm of Harrison O’Leary has posted an assessment of Bill 41, characterizing it as “A Few Steps Forward, a Few Steps Back” , at: https://static1.squarespace.com/static/58f04c998419c24fe69c43e3/t/6369a9a85987c666d76c1d78/1667869096997/Bill+41O+A+Few+Steps+Forward%2C+a+Few+Steps+Back.pdf
- Paul Petrie assesses Bill 41 as “One Step Forward, Two Steps back”. This report is posted in the WELLS Resource section, together with his other Reports. Petrie asks “What was gained and what was lost?” in the Bill, and also assesses the important issue of its impact on the Accident Fund in his section “Financing Bill 41.”.
Of course, employers are also busy assessing Bill 41. Many Employer-sided law firms are laser-focused on the “significant new obligations” for employers implied in the new “Duty to Continue Employment” provision and in its provisions about timing, penalties and appeal adjudication.
But some Employers flat out reject change and Bill 41. In December, 2022, Chris Gardner, President of the Independent Contractors and Businesses Association wrote an Op-ed piece for the Journal of Commerce, titled “Leave WorkSafeBC alone.” He slams the BC Fed for asking for the expensive and confrontational recommendations in my report, New Directions, to be implemented. He reminded all, that employers had withdrawn from the Review in August, raising concerns about my ability to undertake a fair and balanced review of WorkSafeBC and stating “It’s difficult to understand what the BC Fed and Patterson are trying to fix and the risks they are willing to take with a world class workers’ compensation system.”
In addition, Gardner claims that “On Halloween 2022, the NDP government stunned employers by introducing Bill 41, again with no consultation.” This is misleading - the Employers’ Forum simply refused to participate in the Review, despite repeated invitations to do so, when the Duty to Accommodate was a central topic. It is also an ironic rant, given there was no consultation with workers by Alan Winter at all. Perhaps it is not the lack of consultation, but the lack of employer control that Gardner finds so objectionable.
He also engages in the usual fear-mongering , claiming that “ The proposed changes will drive up WorkSafeBC costs, eating up excess reserves, and force future base rate hikes.” These claims are unfounded and completely distort the economics of compensation, which includes both Employer assessments and investment income. As Petrie notes in his paper:
On the basis of the Board’s 2021 annual it appears that injured workers will receive approximately 5% ($85 million) of the $1.675 billion allocated from the accident fund investment income and employers will receive approximately 95% ($1.59 billion) from the investment income. It is apparent from this analysis that employers will receive the lions share of the allocations from the investment income. It is exceedingly difficult to see how this disproportionate allocation of available funds to employers will restore the current imbalance in the workers’ compensation system. If anything, Bill 41 will increase that imbalance.
At the end of the day, a compensation system which focuses only on employer costs and dismisses its important role for injured workers and their families is not “world class” compensation. It is a world class employer protection scheme. It appears that there are many more miles to go before balance is restored to the compensation system and before injured workers can rely on this institution to heal and rehabilitate them safely.
How far can incremental change take us on this important path? If Bill 41 is the final step, then we must conclude – not very far
Available at https://www.harrisonoleary.com/resources/2017/6/25/adding-insult-to-injury
 The International Social Security Association (ISSA) developed guidelines for worker compensation systems (among others) to assess whether their organization’s policies were in line with internationally developed best practices. ISSA’s Guidelines for Return to Work and Reintegration were founded on many expert contributions and on the UN Declaration of the Rights of the Disabled, and are reflected in both the IWH protocols and the more recent CSA Guidelines on RTW. See the New Directions report, pp 145-147.
 NOTE: Unions have standing and a role in any “Duty to Accommodate” proceeding before the Human Rights Tribunal. It is not clear if unions will have standing in the compensation adjudication/appeal processes around the employers “Duty to Maintain Employment”.
If you would like to comment on this or any blog or make suggestions as to future blogs, you may contact me at [email protected].
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