Workers’ compensation board accused of rebating unsafe employers

(Canadian OH&S News) — The Ontario Federation of Labour (OFL) is charging that the Workplace Safety and Insurance Board (WSIB) has been rebating millions of dollars each year to employers that were found guilty of safety offences.

In a 40-page report commissioned by the OFL and published on Nov. 24, Rewarding Offenders: Report on how Ontario’s workplace safety system rewards employers despite workplace deaths & injuries, author Joel Schwartz — a lawyer with the Industrial Accident Victims’ Group of Ontario — pointed out that the experience rating system was allowing the WSIB to compensate companies for claims costs following penalties.

“It’s a fairly old problem,” Schwartz told COHSN. “It certainly undermines the enforcement of occupational health and safety laws. It sends a message that reducing claims costs is more important than complying with occupational health and safety obligations.”

From 2011 to 2013, the report claimed, the WSIB granted premium rebates to 135 Ontario companies that had been convicted under the Occupational Health and Safety Act; a total of almost $15 million went to 58 per cent of these employers in the respective years that their offences had occurred.

“There’s a policy that allows the board to deny employers by rebate in the same year that a worker is killed on the job, but that’s quite a narrow approach,” said Schwartz. “Otherwise, it’s essentially open season for the board to rebate employers.”

Among the numerous cases alleged in the report:

* After a Home Depot worker in Bradford was injured by a falling pallet of patio doors in April 2013, the store was fined $90,000, but then rebated $2.5 million;

* Following a serious worker injury by crane motor in 2009, Arcelormittal Dofasco Inc. received a rebate of $3 million after paying a fine of $100,000; and

* Goldcorp Canada Ltd. paid a $350,000 fine, and then received a $2.7 million rebate, after a 57-year-old employee was run over by a scoop tram.

According to the WSIB, the 2014 report contained inaccurate information that Schwartz’s researchers had not verified properly.

“The OFL report profiles seven examples of fatalities in the workplace,” said WSIB public relations specialist Christine Arnott. “In four of these examples, the report inaccurately states that rebates ranging from $675,000 to $2.7 million were paid to these employers. In fact, all four of these rebates were cancelled under the WSIB’s Fatal Claims Adjustment Policy (FCAP).”

Arnott added that Schwartz had misidentified the employers in two other cases, in which the WSIB supposedly had not paid rebates to the correct companies. “In the final example,” she said, “the employer was not eligible for a rebate in the year the fatality occurred.” The WSIB has cancelled $10.9 million in premium rebates through the FCAP since 2009, with another $4 million in rebates still pending review under the policy, Arnott argued.

But OFL president Sid Ryan told COHSN that the WSIB is merely trying to cover itself after the fact. “These folks were caught with their hands in the cookie jar,” he charged, “and they’re desperately trying to change the channel. But it’s only a fog of information.”

Ryan also speculated about the WSIB’s motivations

for the rebates. “It’s probably pressure from the employers to rebate them some money because they believe the premiums are too high,” he said.

“We reckon this is an incentive for employers to, in fact, improve their health and safety record,” Ryan continued. “There’s no empirical evidence whatsoever that says there’s a relationship between rebates in premiums and reduction of health and safety violations in the workplace. What there is a relationship between is the incentive for an employer to suppress the claims.” Previous OFL research found that about eight per cent of work-related injuries in Ontario went unreported, he added.

Schwartz’s report concluded by recommending that an expert body oversee the WSIB to hold it accountable and that the WSIB scrap its experience rating system while investing more into health and safety. “What we’d be looking at is an incentive system based on actual health and safety performance and looking at leading indicators of health and safety performance,” Schwartz suggested.

Arnott noted that a revamp of the experience-rating system was already underway. “We recognize that more can always be done to improve workplace safety,” she said.

Rewarding Offenders is available online at http://ofl.ca/wp-content/uploads/2014.11.24-Report-WSIB.Exp_.Rating.pdf.