Russell Wangersky: Workers’ comp — he who pays the piper doesn’t always call the tune

On the face of it, it’s straightforward enough: the boards are established so that workers who are injured on the job get benefits, paid for by employers, and those same employers don’t have to worry about being sued by their employees for injuries sustained on the job.

But in practice, there are more than a few complaints. Injured workers often argue their needs aren’t fully met and their concerns are steamrolled by bureaucratic process, and employers complain that they are charged higher rates than required to pay for the rates of injuries in their businesses.

Almost everywhere in Canada, there are complaints that compensation boards are unwieldy monoliths, setting their own rules and thumbing their noses at complaints.

But what if one of the boards was caught gaming the system?

Well, one was — in Nova Scotia.

The details only crept out in a very long court decision in that province, so I’ll write a short version.

A company called Oxford Frozen Foods had just reached five years of lower injury rates, and had expected its compensation rates to fall. Instead, they rose, because while the compensation board set rates over five years, it had used eight year of rates instead. The company went to an appeal tribunal and won. The compensation board could then have gone to the Court of Appeal, but was afraid of losing.

Inside, it decided to give Oxford a new rate, but only partially.

Then, things got strange. Knowing Oxford could appeal the partial rate all over again, staff at the board came up with an end run. If Oxford appealed, the board’s hearing officer would adjourn the hearing and pass it on up the chain for “policy” reasons. Then, senior levels of the board would adjust the board’s policy to make it so that Oxford could only lose, both at the hearing level and at any subsequent appeal.

The bottom line? They planned to change the rules behind the scenes, without informing the company, and just let the company move along in an expensive and unwinnable battle.

Eventually, even that behind-the-scenes process came to court, with a judge ruling: “But, in effect the adjournment here was to dispose of the appeals effectively by putting them off until the policy could be changed in a specific way to tailor the outcome. That was not merely an incidental effect. It was the plan. The whole idea was to put things on hold to allow the policy to be amended or clarified to confirm the (Workers’ Compensation Board’s) long-standing policy and dispose of Oxford’s case. When the adjournment was granted, its intent was to dispose of the appeal.”

And that’s plainly not fair. In layman’s terms, the fix was in.

“Oxford was not notified because the plan was already in place to have the appeal adjourned and referred,” the judge wrote.

By then, Oxford already had $150,000 hanging on the process.

In comparison, it would cost those who cooked up the arrangement nothing.

Oxford won its case — but only inasmuch as it gets to go back to the hearing officer stage and make its argument all over again.

They’ve been fighting their rate increase since October 2014.

Their win, at this point, shows that you can fight the system, even if the system is going to use every power it has — even cheating — to win.

But the fight isn’t cheap, and it isn’t fast.

Workers’ compensation boards should have a hard look at themselves, just to be sure they’re not using their substantial legislated and financial powers to get their own way.

Workers’ compensation was established to give everyone a fair shake.

Compensation boards should see that as their first responsibility.

Russell Wangersky’s column appears in 35 SaltWire newspapers and websites in Atlantic Canada. He can be reached at [email protected] — Twitter: @wangersky.