Jackson issued his final report on changes to the Workers' Compensation system on July 3rd. These recommendations will be the basis for legislation on Workers' compensation that will be introduced this fall by the Harris government.

Jackson's recommendations will reduce the number of claims substantially and that, combined with lower benefits, will rob injured workers of billions of dollars in benefits. Changes of such magnitude cannot happen without enormous suffering for injured workers and without a dramatic reduction in health and safety standards.

The billions saved go straight into the hands of business and workers suffer the consequences.

The Workers' Compensation System was first enacted in Ontario in 1914. 82 years ago the employer was obligated to provide a fund to compensate workers injured at work. The law established that injured workers, who have given their health for the profit of the employer, have the right to compensation by their employer. It was established that such a system of compensation should be controlled by a public agency in order to ensure that employers who had the power could not harass workers. Today these fundamental rights are threatened by the Jackson recommendations.

What are those recommendations? The Jackson recommendations cover four major areas:
1. reduction of benefits
2. privatization and handing control to employers
3. reduction of entitlement
4. restriction of the right to appeal.

1. Reduced Benefits

Benefit levels will be reduced from 90% of net to 85% of net earnings - a 5.6% drop. Any worker injured on the job after the new legislation becomes effective will get the lower rate.

Cost of Living protection will be reduced. Workers fought for years for the right to cost of living protection for their compensation payments. In the 1980's we finally got the right to full cost of living protection. Then in the mid '90's cost of living protection was reduced. Now Jackson proposes to reduce it further.

Future Economic Loss (NEL) Awards and Non Economic Loss (NEL) Awards Reduced. A dual award system of Future Economic Loss (FEL) awards and Non Economic Loss (NEL)awards was introduced by the Liberals to replace the pension system in 1990. Workers injured, after 1990, no longer get compensation pensions. They are eligible for FEL's and NEL's. Already a major setback, this dual award system will be further undermined if the Harris government has its way. The compensation act will provide for more reviews and it will contain changes that will allow reduction or elimination of benefits. The Jackson report recommends to "reform the dual award system to correct for the incidence of unintended overcompensation."

The system of reviews will lead to much close surveillance and monitoring of injured workers, possibly including secretly following and video taping workers.

Further explanation - FEL determinations will no longer be made unless preceded by a NEL award. Initial determinations will not be performed until completion of the LMR. The mandatory time limits for determination and reviews will be replaced by the Board's direction to review and change the FEL based on any material change in circumstances. The Board will perform periodic reviews, once per year for 6 years, post determination. The NEL system will be "streamlined".

FEL's for seasonal workers will be adjusted to reflect normal periods of unemployment. A worker who becomes permanently disabled will lose.

FEL retirement pensions will be reduced to 5% from 10%. The worker will be able to top up the other 5% by contributing from their current FEL benefits. The seriously disabled will be hurt most when they do not have access to a company pension and are not allowed to make CPP contributions.

The Board will allow workers over the age of 55 to choose to have their loss of earnings determination (FEL) based on single assessment rather than subjected to periodic reviews.

2. Privatization, Handing Control to Employers Reducing Worker Rights and Removing Worker Agencies

Direct Pay - You will file your claim directly with the company. They will make the decision to accept or reject our claim. Employers will directly pay the first 6 weeks of your compensation claim - not the compensation board. The employer makes the initial decision on entitlement to benefits and has access to your medical information. Employers and their insurance companies will make the decisions on your claim. If they cut you off, you have to appeal to the Board. This takes time. The company can use this against you.

Jackson encourages employers to hire private insurance companies to cover the first 6 weeks of compensation payment. He says this "will introduce the benefits of competition into the system, particularly the insurance industry focus on loss prevention and risk management...".

Private insurance companies will control your claim. This is the first step toward privatization of the whole system. 82 years ago we established the right to administration and adjudication by a public agency. Today if the Harris government has it's way that will be gone.

Cases of death, occupational disease, or extremely serious injuries and claims involving medical treatment only and no lost time are excluded from this approach and will be handled directly by the Board. In other words, employers and private insurance companies will be given the most profitable parts of the compensation system.

More Money for Employers through decreased costs and increased paybacks - While workers benefits will be cut, employers will get more money back. Already, last year the companies got more money in rebates from the WCB than was paid out to injured workers. Jackson recommends that employers will get a further 5% reduction in their payments (assessments) paid to the WCB.

Measures will be implemented so that more money will be refunded to the employers through "experience rating" (a system that gives employers pay backs on their assessment for a reduction in reported injuries. The experience rating system has led employers to appeal more and more claims and pressure workers not to take lost time.) This means more employer pressure on workers not to go off work on WCB claims. It also means incentive for the employers to deny claims - which they will be able to do under the new system of direct payment of claims.

Return to Work - the return to work proposal has been designed to give the employer almost total control over the worker. There are two steps in the return to work provisions - the return to work phase and the labour market re-entry phase.

Return to Work (RTW)Phase - The employer is obligated to develop a return to work plan if the worker is not back to work within 5 days. This is supposed to be " in consultation with the worker" The plan has to be filed with the WCB within 20 days. The plan is "essentially an early intervention strategy" Page 20. The worker's chosen doctor would be required to provide information on the workers functional abilities to the employers insurance company.

Early "intervention" combined with mandatory access to medical information will mean more pressure on the worker. The company and insurance doctors and personnel will be directly involved in directing your return to work.

Workers will be suspended or terminated from benefits if they don't cooperate. Employers on the other hand will get further reimbursement (pay backs) from the WCB for reemployment efforts, accommodation assistance, and in the event a reemployed worker suffers a re-injury.

So a worker will be under threat of being cut off if he/she doesn't co-operate with the insurance company. The insurance company has access to his/her medical records, the power to define under what conditions the worker must return to work, and the power to cut off the worker. The employer will receive further paybacks from the WCB for harassing the worker and forcing him/her back on the job - ready or not.

Labour Market Re-entry (LMR) Phase - If the worker is unable to return to work or "the employer has not offered a RTW (return to work) plan", the WCB and the injured worker "and, where appropriate, the employer or the health care provider" develops a Labour Market Reentry plan. At this point the worker is in danger of losing the opportunity to go back to their original job.

Under Jackson's recommendations the WCB will develop a plan that emphasizes enhancing the worker's existing skills and developing job search techniques. The injured worker, who is forced to seek new employment, will not likely get much help from the compensation board. They will be given a short course on job searching and put on the street.

The bottom line - if you do not cooperate with the company when you are injured, the company is in a good position to either cut you off from benefits or force you out on the street.

Occupational Disease Panel (ODP) eliminated. The ODP is a separate agency within the Ministry of Labour that has the power to conduct studies of workplace hazards and make recommendations on diseases that should be compensated. This panel has worker representation. Workers now have input into what research is done and the evaluation of that research. The ODP will be eliminated if Jackson has his way. Its functions will be incorporated within the Board.

The ODP, despite limitations, is the one avenue workers have to get research into occupational diseases. Significant gains have been made through the work of Panel. This will be gone.

Office Of The Worker Advisor (OWA) cut back - The OWA is an independent agency which provides assistance to non-union workers in dealing with the WCB. It has provided tremendous assistance to injured workers who have no where else to go. Jackson's recommendation is to put limitations on the OWA. This could mean curtailment of funding and assistance for workers compensation training and for injured workers groups. It also means that small bargaining units, who have little resources and who have depended on the OWA, may no longer have access to them.

Coverage not an issue. Employees at banks and insurance companies are not covered by workers compensation. The reason? They don't want to be. Needless to say the Jackson report recommends no real movement in this area. This problem will simply be studied.

3. Reduced Entitlement

Exclusions for chronic stress and chronic pain. Jackson recommends to exclude compensation for chronic stress. He also proposes to prohibit compensation for chronic pain that persists beyond the normal healing time (that is the whole issue in chronic pain - it continues on indefinitely as a result of an injury).

In the case of chronic pain his report argues that "there can be very little assurance in any one case, the employment has in fact caused a psychological disability that has so many other potential non-work causes."

In other words even though it is well known from studies that workers are suffering from chronic stress (and this is likely to worsen with the current speed up in the workplaces), they won't compensate this injury because each case is difficult to prove. Instead of looking at the merits of each case, he simply wants to deny all workers.

Further explanation:

Jackson claims that "entitlement to compensation has been expanded beyond the boundaries of a workplace accident insurance plan under which benefits are paid only to workers whose injuries have been caused by the workplace."

He is targeting the decisions of the Workers Compensation Appeals Tribunal (WCAT). The WCAT was established in the mid eighties as a final appeal body outside of the WCB. This was in response to complaints that the WCB was not capable of fairly judging appeals of its own decisions. The establishment of the WCAT made a tremendous difference. In many cases the WCAT has overruled the WCB in its interpretation of the act thus expanding workers rights to compensation. Now the Ontario government wants to turn that around.

As Jackson, himself, points out it is often difficult to determine the exact role of employment in injuries, such as those resulting from occupational exposure to toxic chemicals. These injuries can result from multiple factors.

The reality is that employers take advantage of these difficulties.

For example did the worker smoke? If so the employer argues that the smoking is the cause of his/her lung cancer, not the asbestos the worker was breathing. Or in the case of a repetitive strain injury, the employer argues it is the work around the house or sports activities that are causing the injury, not the work at the workplace.

We know from studies that workers are getting these injuries at work. But in each individual case it is extremely difficult to prove the exact cause. So employers always have the upper hand.

The WCAT has used concepts like "significant contributing factor" and "benefit of the doubt" to rule in favour of the worker when there is reasonable grounds to believe that the workplace caused or contributed to the injury. As a result workers have been compensated in cases where the WCB has refused to consider compensation for them.

Jackson proposes to solve that "problem" by tieing the hands of the WCAT. He recommends (page 41) that the Workers Compensation Appeals Tribunal be required by law "to adhere to WCB policy in adjudicating appeals, whatever its views on the policy in question." This means that Board policy on RSI's and other injuries that may involve multiple factors can be written in such a way as to effectively exclude them from coverage and the worker will have nowhere to appeal these decisions.

Workers required to file within 6 months. Right now the worker is allowed to file a claim at any time, as can his/her surviving spouse. There is effectively no time limit. Under the Jackson recommendations that is gone. Though the board will be allowed to waive the time limits in specific circumstances eg: occupational disease, the onus will switch to the worker to establish that there is grounds to waive the time limits. This provision could have a significant impact on RSI claims which are both slow to develop and which can be unclear to the worker as to the cause. It will also effect workers who are convinced by the company not to file a claim (eg: initially they do not lose time from work.) If after 6 months the injury is aggravated or reoccurs, the worker will be out of luck - no coverage.

4. Reduced Right To Appeal

Limiting Right to Appeal - 6 month time limit to appeal a decision of the Board . Right now a worker has unlimited time to appeal decisions. That changes under the Jackson recommendations. His proposal would allow the Board to waive the time limit - but the onus will be on the worker to establish that it should be waived. There is provision that the employer cannot be prejudiced by the waiver. Some decisions will have a shorter time limited (less than 6 months) for appeal: ie: employment and return to work issues.

The WCB will be able to waive the worker's right to a hearing if it chooses.

WCAT power reduced. As stated above, the WCAT will be required, by law, "to adhere to WCB policy in adjudicating appeals, whatever its views on the policy in question." There will also be a 60 day time limit on the right to appeal. The WCAT will be able to deny the right to an appeal. Some issues will not be appealable to the WCAT. A limited time frame for decisions (120 days) will be established.

The act will impose "a statutory preference for hearing panels composed of a single adjudicator". This means the effective end of labour representation on WCAT hearing panels.

These changes to WCAT will severely restrict, if not eliminate, the right to appeal WCB decisions to an independent body.

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