It may not be starting from scratch, but the task force reviewing New Brunswick’s workers’ compensation/occupational health and safety (oh&s) system has recommended a reset that would beef up WorkSafeNB authority and independence, rein in appeals tribunal clout and staunch the flow of surging costs.
The revised approach is envisioned in 28 unanimous, stakeholder-balanced recommendations spelled out in the “Report of the Task Force on WorkSafeNB”, submitted to provincial government on July 17, 2018.
“Revisions to legislation have often been ad hoc and require consolidation,” argues the nine-member group comprised of an independent chair and representatives for employers, workers and WorkSafeNB’s Board of Directors. “The Task Force recommends a redrafting of WorkSafeNB’s enabling legislation, and that this be completed no later than 2019.”
Rather than “advising” government on policy developments and “proposing” legislative changes, it was argued WorkSafeNB have the “independence necessary to complete its mandate.”
The task force was charged on May 30, 2017 with identifying short-term solutions and establishing a long-term plan to ensure the transparency, accountability, predictability and sustainability of the workers' compensation/oh&s system.
Concern over rising costs and clashing authority seem to have been key drivers. For example, amending section 44 of the Occupational Health and Safety Act (OHSA) would require WorkSafeNB to, among other things, do the following:
- send employers copies of the OHSA and regulations
- ensure joint health and safety committees are effective, representative of the employer and employee groups and sufficiently trained to carry out duties
- devise mandatory requirements for self-insured employers to adopt toolbox-style meetings and place greater accountability on department heads/managers to ensure oh&s compliance and practices, and
- review the cost of OHSA enforcement in self-insured employer workplaces and require them to pay their fair share of associated costs to WorkSafeNB annually.
Self-insured employer contributions represented a sore point for some task force members. By not contributing on a pro-rata basis to those WorkSafeNB costs, insured employers were left to pick up the tab, “which resulted in higher assessment rates on those employers.”
Self-insured employer contributions were not the only drivers, of course, but rates rose from $1.11 to $1.70 per $100 of payroll in just two years.
A straight line was also drawn between higher costs and actions by the Workers' Compensation Appeals Tribunal (WCAT).
Though jurisdictionally correct, WCAT's move to vary several WorkSafeNB policies over a brief period prompted unanticipated financial effects on WorkSafeNB’s Accident Fund. Since 2015, “$100 million in annual benefit costs resulted from WCAT decisions. These costs carry into the future and also create potential unfunded liabilities.”
WCAT should be required by legislation to decide appeals based on provisions of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, the regulations, WorkSafeNB policies and facts established from evidence in proceedings. “The Task Force has concluded if the legislative jurisdiction of WCAT is not changed the sustainability of the WorkSafeNB Accident Fund will be further compromised.”
Several benefit-related suggestions also seek to reaffirm WorkSafeNB authority and contain costs:
- legislation should enhance WorkSafeNB’s exclusive jurisdiction to establish and enforce policies
- legislation should clarify definitions of pre-existing conditions and intervening conditions, and applicable benefits, and
- WorkSafeNB should be the final authority on benefit entitlement.