May 23, 2008

Letter to the Editor

WSIB policy penalizes employers who hire previously disabled

Re: WSIB experience-rating system

In Ontario, construction employers who employ a worker with a pre-existing disability who suffers a disablement while in the course of performing their regular duties, face a surcharge (penalty) levied by the WSIB. Here is the scenario:

Construction employer hires a pipefitter. After 1 month, the pipefitter, while performing regular duties, experiences discomfort due to the work.

Upon seeking medical treatment, the worker is diagnosed with HAVS, or some other repetitive strain disorder which is the result of working as a Pipefitter for 20 years. The worker’s condition is severe enough that they cannot work as a pipefitter any more. The claim is now for lost-time as loss of earnings benefits are paid.

A WSIB claim is established for this condition and the board acknowledges that the impairment is the result of working as a pipefitter for 20 years. The “accident employer” is the last employer of record. That is, the employer who employed the worker when the “disablement” occurred. The WSIB claim is registered to this employer, even though the worker only worked for them for one month. In some situations, the worker is retired and the diagnosis is made several years after they have worked. The WSIB grant the employer cost relief, recognizing that there was an underlying condition which resulted from working 20 years in the industry for multiple employers. As a result, the “accident” employer is relieved of 90% of the costs of this claim, due to the pre-existing condition (disability). While the employer is relieved of a majority of costs for this claim, the WSIB still records this claim as a lost-time injury if loss of earnings are paid. This LTI recorded against the accident employer causes the company to have a frequency count applied to their account and results in a surcharge being applied by the WSIB under the construction experience rating program (CAD-7). The surcharge (which can be upwards of $50,000) also results in a negative performance index being recorded against the employer.

This negative performance index also causes this employer to be removed from several clients bid lists because of a poor CAD-7 record. The Ministry of Labour also now labels this employer as “high risk.”

The worker had a significant underlying condition (disability) prior to being employed by the employer. The disablement occurred as a result of the worker performing their regular work duties.

As a result of hiring this worker the employer is penalized by the WSIB (experience rating). In other words, the WSIB levied a surcharge against an employer who hired a worker with a disability. Under the Human Rights code, the employer cannot discriminate by asking candidates for employment if they have a disability, so, the employer takes people “as they come.”

The Ontario Human Rights Code prevents discrimination against citizens with disabilities by employers, yet the WSIB penalizes employers who hire these citizens.

Gary Robertson,
CHRP
President,
Wellington At Work

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