Monday, May 16, 2011

WorkSafe New Brunswick Complicit In Abuse...

......Of Injured Workers

For many people, retirement conjures thoughts of soaking up the sun and finally being able to read the books we only had time to skim through before.

Yolande Mongeon has accumulated five years' worth of paperwork in her battle with WorkSafeNB. But for Yolande Mongeon, retirement means fighting WorkSafeNB for compensation benefits.

Mongeon was already on the Canada Pension Plan when she was injured at work. She was surprised when WorkSafeNB said her pension benefits had to be paid back because she was now also receiving workers' compensation.

"Contrary to the Act, they reduce workers' compensation benefits dollar for dollar based on the CPP you receive," says Mongeon.

Mongeon was "already in a frail state," and her problems with WorkSafeNB weren't helping. So she called Tom Barron.

Barron, a retired labour union worker and owner of injury claims firm Barron T. Labour Relations, is concerned about the problems workers face getting their benefits.He said the problems started when the Employee Workers Compensation Act was changed several years ago.

The agency tells injured workers to apply for Canada Pension Plan benefits, and when they go into early retirement, the same agency "reduces their benefits for what they get from CPP," says Barron.

"The consequences of the decisions made in the last 10 years are not in the best interests of the stakeholders," says Barron.
Policy 38.11 of the Workers' Compensation Act states that compensation and supplemental income, including CPP, cannot be over 85 per cent of the worker's pre-accident income.

The policy also says CPP is deducted from injury benefits only if the pension was given due to the injury. Many workers are instructed to pay back CPP funds even if it is unrelated to their injuries.While many workers are concerned by the situation, they aren't the only ones.

"Eighty-six per cent of decisions made by the (WorkSafeNB) board of directors are switched by the Appeals Tribunal," says Barron. "We are the complete reverse of every other jurisdiction in Canada, where the Appeals Tribunal only overturns decisions 25 per cent of the time."Barron says the board does this in the hopes workers won't appeal, so they can "limit their liability to the workers' compensation fund."
"For every two people denied benefits who appeal, there are eight more who don't appeal," says Barron.

The WorkSafeNB Annual Report says the number of appeals for 2010 increased 20.6 per cent from the previous year. But the tribunal is having trouble keeping up.
"They instinctively deny your claim, and the Appeals Tribunal tells them to fix it, but it could be two and a half years before that happens," says Barron.

Ronald Gaffney, chairman of the Appeals Tribunal, understands Barron's concerns.
"We say pension plans are not supplemental income, but the board says they are," says Gaffney.

"We just have a different interpretation of the legislation."
But the legislation can't be changed unless the issue goes to a higher level of the legal system.

"Employers don't ever appeal our rulings, and neither do claimants, considering they are universally successful when they come to us on this issue," says Gaffney.
The board isn't "bound to apply precedents from tribunal proceedings," despite the fact a quarter of all appeal proceedings involve this issue, according to Gaffney.
"Unless it goes to the Court of Appeal, it won't change."

Barron says by the time claimants get to the Appeals Tribunal, they are exhausted.
"They get these workers involved in a revolving door process," says Barron. "Then they send them to Workers' Advocates, who have piles of work to the ceiling due to the constant appeals.

"The advocates tell people there will be a four-month wait for their services, and then another six months before it goes to the Appeals Tribunal.
"And then, the tribunal will take a year to make a decision. And you have an injured worker who has been struggling to get benefits for years."

Guy Dagenais, manager of Workers' Advocates, says this happens all the time.
"The Appeals Tribunal says if your CPP benefits have nothing to do with your injury, then they can't be deducted," says Dagenais.Dagenais said he has had every case of this nature overturned by the Appeals Tribunal, and says the record speaks for itself.

"The board of directors doesn't agree with what we say."
WorkSafeNB employs up to 36 case workers per year. Their 2010 Annual Report says they "adjudicated 12,507 applications for claims last year."
"1,360 were rejected as being non work-related or an uninsured employer," the document states.
"Of those accepted, 5,971 involved lost time of at least one day ... and 5,171 were no lost-time claims."

Martine Coulombe, minister of Post-Secondary Education, Training and Labour, is standing behind WorkSafeNB."I respect the role of WorkSafeNB and its board members in their role to implement and enforce a number of Acts that set out workplace protections for both employees and employers," Coulombe said in an email statement.

"It is the responsibility of WorkSafeNB to make recommendations to government regarding amendments to legislation as identified by their Board of Directors. Government is ready to work with WorkSafeNB should they feel adjustments need to be made," says Coulombe.Crispina Caballero says WorkSafeNB does its best to take care of injured workers.

Caballero, director of fiscal economic planning for WorkSafeNB, says the time it takes to pay out a claim "depends on how complicated the claim is."
WorkSafeNB tries to be timely, especially when the need for money is urgent, says Caballero.

"I once got a phone call from a man on prescription medication, and he was on his last day of pills," says Caballero."He needed his meds the following day, so I got his name and it was taken care of."She says all benefits are "defined by legislation," but the numbers can be adjusted if the employee needs more compensation.

"If the amount they need is less than what they get from their benefits, we communicate with them," says Caballero."There's a chance for them to say something."
Caballero says claims are only denied under specific circumstances.

"If the accident is not work-related, then we deny the claim," says Caballero.
Diane Green, executive assistant to the chairperson, president and CEO of WorkSafeNB, says the board of directors is "just following policy."
Green says the board members know it's a flawed system."We realize the tribunal has a different approach," she says.

She cites a mandate risk from WorkSafeNB's Strategic Plan and Risk Assessment as an example of their attempts to work on the issue."It says we want to reduce Appeals Tribunal decisions that are inconsistent with WorkSafeNB policy," says Green.
"We realize the issue, and we're working our way around it."

However, injured worker Mongeon says the board should be doing more than work around this."There is a long-standing questionable practice by the Workers Compensation Board," says Mongeon."They see this happening, and do nothing to crack the fingers of people doing these clawbacks on benefits."Due to the circumstances surrounding her benefits over the past few years, Mongeon is now unsure about her future.

"My retirement is up in the air at the moment, I'm not sure I have the money.".

This Story was written by Jordan Parker , Times and Transcript

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