Recently, I came across a Blog post entitled No Right to SueEmployer for Sexual Assault by Co-Worker: WSIAT. The Blog is called Labour Pains is written by a Sean Bawden an Ottawa Employment law lawyer and has received several awards for his Blogs.
The Blog post discussed a case that went before Ontario’s
workers compensation appeals tribunal, now known as the Workplace Safety &
Insurance Appeals Tribunal - WSIAT. The case was regarding a right to sue
issue.
Side Point: Historic Trade-off
I want to take a moment and divert from the main story. I
want to discuss the Historic Trade-off and explore it a bit more. This is so you understand what it means, and its significance to the main story of this
Blog.
The Historic Trade-off also known as the Historic Compromise,
is a legal doctrine that states, workers, when injured/made ill at work have a
right to workers compensation. In return for that right, workers lost the right
to sue their employers for their injuries as a result of the employer’s workplace.
The Historic Trade-off is embodied in workers
compensation legislation across the country. In the case at bar, for example in
Ontario, the Historic Trade-off is stated in section 26 of the Workplace
Safety & Insurance Act. The section of law prevents a worker from suing their
employer for their injuries/illness as a result of their employer’s workplace.
In return, the legislation states a worker is entitled, or provided a right to
workers compensation.
- whether your employer is NOT covered by workers compensation, this maybe less than 20 employees;
- being involved in motor vehicle accident, while working;
- being a worker of a Schedule 2 employer and being injured by the conduct of a Schedule 1 employer or a worker of a Schedule 1 employer;
- conduct of the employer/workers resulting in workplace harassment (see Morningstar v. WSIAT for clarity on this issue.); and
- others rare cases.
In studying the history of workers compensation, which encompassed
the periods well before 1896’s first law to recognize injured workers, and then
to the Meredith’s reports and the famous Meredith Principles. This led to the
real purpose of workers compensation was NOT to force injured and
disabled workers back to work, but to prevent workers, when injured or ill as a
result of their employer’s workplace from ultimately becoming a financial burden
to their families and most importantly from becoming a financial burden on
taxpayers.
The real purpose
of workers compensation is to prevent workers, when injured or made ill, by
their employer’s workplace, from becoming a financial burden on taxpayers!
The Historic Trade-off has become the Historic Rip-off
While, I agree with the concept and real purpose of workers compensation,
I believe the Historic Trade-off has been severely compromised,
or more accurately been intentionally breached by government. By this I mean that in order to
claim there is an agreement or arrangement between two parties, both sides must
benefit in someway, or there is no agreement. With workers compensation, there
was a mutual benefit.
Workers benefit was they were given a right to workers compensation. Employers benefit was they were no longer sued!
Overtime the compromise has become a rip-off. Where employers are protected from lawsuits, yet workers have no right to workers compensation. In this current case only one fully benefits.
For example, in Ontario, prior to 1990, injured workers were
provided the right to workers compensation for as long as their disability lasted.
However, in 1990, the Ontario government changed the workers compensation
legislation. This was a devastating and dramatic blow to injured workers. It
was devastating because the legislation moved away from one of the key principles
of the historic trade-off. It removed the right for workers
to receive workers compensation for as long as their disability lasts.
It also provided that workers when injured must accept work from their employer
while they were still injured.
Then in 1998, a new tougher workers compensation law took effect in Ontario. It mandated that workers when injured must return to work. The purpose of the workers compensation law dramatically changed to getting workers back to work and being fiscally responsible, over caring for workers. This meant that when workers were injured, they must co-operate in a return-to-work program. While the legislation makes clear the work must be safe and suitable for the worker, in the majority of cases the work was neither safe nor suitable. Moreover, the legislation never provided any protections for the worker to refuse unsafe & unsuitable work or any punishment to the WSIB or the employers when the the work was found to be unsafe & unsuitable. If there is no accountability how can anyone trust the word of the WSIB the work is safe and suitable. Often times, workers were/are starved into performing unsafe and unsuitable work.
Moreover, the WSIB, implemented further severe austerity measures in 2010, one of which was covertly declaring all workers can work and none are ever to be declared unemployable.
The WSIB has used many unlawful and immoral tactics to force workers back to work. For example:
The WSIB and employers refer to the return-to-work program as a “Modified Work Program” as opposed to early return to safe and suitable work. The WSIB and employers alike remove the words safe and suitable. The reasoning is that if a worker raises issues of the work offered. Then the employer or WSIB states, the work has been modified for the workers restrictions. The purpose is to intentionally & knowingly mislead the worker not to raise concerns based on the work offer as being unsafe and/or unsuitable.
The WSIB and employers also state what a worker’s restrictions are. That being, what the worker cannot do because of their injuries. Often the WSIB and employers intentionally leave off any consideration for other disabilities the worker has, whether work related or not. This is extremely misleading and clearly intentional in nature. This is because while a worker is an injured worker, they are also a person with disabilities and as such under the Human Rights Code have a right to accommodation for their disabilities whether work related or not, whether accepted by the WSIB or not.
The WSIB and employer, when dealing with health professionals demand objective medical findings when the health professional is to declare a worker unable to work. This is contrary to common law on dealing with experts who, by the virtue of them being experts are expected to provide subjective evidence. First, let me explain the difference between objective and subjective. Simply put, objective is to say, “it is minus ten outside.” Subjective is to say, “it is dam cold outside”. Now in legal proceedings lay witnesses are not normally allowed to provide opinions. They are only allowed to provide testimony of what they observed, saw, heard, felt. However, the exception is that when an expert is to testify, they are, by virtue experts and rely on their expertise to give their opinions, or subjective evidence. The WSIB often not only demands objective evidence from the doctors but challenges their expert qualifications. The WSIB will then harass and bully the health professional to change their position, which is without question illegal, but hey it’s the WSIB who is going to stop them?
The previous example was often seen when a worker has the health professional complete the WSIB functional abilities form. Now, currently the functional abilities form recognizes that a health professional is an expert and as such relies on their subjective evidence, being their opinion.
As you can see on page three of the functional abilities form, in part D, question number 2. It asks about the worker’s ability to return to
work. It provides the health professional three options:
- If a worker can return to work with no restrictions,
- If the worker can return to work with restrictions, and
then the health professional is to complete section E, which identifies the worker's restrictions and complete section F. - If the worker is not able to return to work.
Which I have circled in the above form, and clearly states that the “Patient is physically unable to return to work at this time. Complete section F”.
When a health professional checks the third option and does not complete section E, often employers and the WSIB will demand the health professionals to complete section E contrary to exactly what the functional abilities form asks. Alternatively, the WSIB will demand more information.
In effect, grilling the health professional to agree the worker can return to some work. The health professional will then be forced to include the activities of the worker while at home. The WSIB and the employer will then say oh look see, see, the worker is not dead, so the worker can do some work.
It should also be important to note that the form does not include:
- home activities;
- other disabilities/injuries, whether accepted or not by the WSIB;
- the impact of and side effects of medications;
- the impact on the travel to & from work;
- the overall impact of returning to work on the worker and their injuries;
- and other factors that doctors must consider when advising you to perform activities with an injury (ies)/illness.
Another example of the WSIB covert conduct of forcing workers back to unsafe and unsuitable work is the WSIB latest Health Professional's Progress Report form 26.
Click the image to download a PDF copy
Within the form it provides under section 1 three options:
- The worker can resume regular duties,
It asks for the start date and if graduated hours are required.
Graduated hours are when a worker returns to work and first days or weeks it is say 3 then following week is 4 and so on increasing back to the full workday of 8 hours. - The worker can begin “Modified”
duties, and
It again asks for the start date and if graduated hours are required. - The third option is not titled.
It just states pain should not be the only medical restriction. Is there any other reason this worker can not return to work at this time? It also asks for details and an expected return to work date.
Again, notice how the options are worded. So, as to lead the health
professional no choice but to force the worker back to work. Even when the work
is unsafe and unsuitable for the worker. It is also interesting how the WSIB does not use any
title for the third option. So as to clearly imply not returning to work is
NOT an option for the health professional to choose.
What happens when injured workers return to work and
are injured or killed?
I have no doubt that workers have been re-injured, suffered
new injuries, or worst yet died as a result of this draconian return to work
program. That was all a direct result of the manipulative conduct on the part of
the WSIB with injured workers and healthcare professionals. I myself have proven two new injuries as a result of being forced back to work on countless times by the WSIB. One occurred days after being forced to the employer's so called modified worker program!
As such, I have started to investigate it more deeply. By this I mean I have sent a freedom of information request to the WSIB. This is to request the following:
- The number of injured workers who have been re-injured, in what the WSIB has declared as safe and suitable work;
- The number of injured workers who have suffered new work injuries, in what the WSIB has declared as safe and suitable work; and
- The number of injured workers who have died, in what the WSIB has declared as safe and suitable work.
I have no doubt the WSIB's response
will be much the same as my last freedom of information request. This was where I had
asked for the total dollar amount the WSIB had spent to advertise the WSIB's
$1.5 Billion rebate program to employers. An easy answer... one would think. The WSIB provided invoices and
redacted all the dollar amounts citing privacy.
I have no doubt the WSIB’s conduct, and practices are not just limited to Ontario. That it is similar in many other jurisdictions within in Canada.
Back to the main story:
While my explanations of the historic trade-off, its loss,
and the forced return to work may have seemed lengthy, there was a purpose to this
main story.
In this case, discussed in the Blog post, the outcome was that the WSIAT had determined that a worker cannot sue an employer if the worker was raped by a co-worker, or more accurately the employer/owner of the business. Even if the individual was charged and even convicted under the Criminal Code.
The WSIAT’s so called justification was that when a worker is entitled to workers compensation benefits then they are barred from suing the employer. This is commonly referred to as the Historic Trade-off.
It is important to note that the WSIAT decision was issued prior to Morningstar v. WSIAT. As such, one could attempt to argue under the same conditions as Morningstar to prevent being limited from suing the employer for such outrageous conduct!
It is important to note two important things.
First, as discussed in detail that the law, at least in Ontario,
has dramatically changed to force injured workers back to work. That moreover
the WSIB has taken a very draconian approach when forcing workers back to work.
This is because the WSIB’s only priority is to save money for employer rebates!
Second, that if a worker is attacked at work, whether sexually or not, and they are forced to return to work. They then develop as a direct result of the return to work post traumatic stress disorder or other mental illness. According to section 14(7) of the Workplace Safety and Insurance Act, a worker cannot claim workers compensation if they develop a mental injury as a result of the return-to-work process.
However, my point would be that if this ever happens to an injured worker, they should consider several options:
- Filing an appeal of the decision within the workers compensation system and challenging the section of law under the Human Rights Code and the Charter of Rights and Freedoms,
- File a civil suit against the employer and make the claim based on Morningstar.
- File a human rights complaint against the employer and the WSIB with the Human Rights Tribunal of Ontario.
These options have pros and cons and also are specific to Ontario.
This is why each individual has to weigh each option carefully. Also, in some situations
one can do more than one option or all the options. There may even be other options
to consider. It is always best, when possible to consult legal professionals before making any decisions.
The point is do not accept what your employer or the WSIB
says,
you need to educate yourself about all your options and make the best decision
for you!
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