CSST: Employers are active for a bad reform

Union for Workers Accident Victims Montreal

Last spring, Labor Minister of the time, David Whissell, announced that he had asked the CSST to form a working group to propose changes to compensation schemes and the prevention of occupational injuries. The Board of Directors of the CSST, which includes equal numbers of union and management members, agreed to form such a working group.

In this context, it is not surprising that employers are actively to further reduce once the rights of workers'. Although his claims "formal" are not yet known, we already know the broad guidelines referred. And it has nothing to celebrate ...

The working group's work

This working group was formed in May and is expected to produce its report in May 2010. It is composed of three union representatives (FTQ, CSN is CSD), three representatives of employers and a president "neutral", Viateur Camiré. Note, however, that before discovering the virtues of neutrality, M. Camiré had worked much of his life as pulp industry manager and papers and he was most recently vice president of AbitibiBowater.

Last spring, the working group met principally to plan its work and for members to agree on the way forward.

This autumn, both parties have presented the main elements of reform they want to see happen. For the time being, it seems that we are witnessing a dialogue of the deaf. Indeed, the union side, it focuses on strengthening prevention in the workplace while the, employers' side, we hope to reduce the rights of workers and workers under the compensation scheme.

Finally, Working group received, until end of January, briefs on possible reform of compensation schemes and prevention of occupational injuries.

Thereafter, the working group should work on the production of its report to be submitted in May.

That means employers?

Although we do not yet know the details of each of the Employer claims as part of a possible reform, synthesis that employers members of the working group made last fall on the subject tells us about the broad employer demands.

What we understand, is that in exchange for some concessions he might make in prevention, employers want many changes to Act accidents and occupational diseases.

These demands focus on the issue of an alleged "over-compensation" caused by the compensation scheme but it also affects the medical aspect, rehabilitation, remedies and "integration" with social security schemes.

The "over-compensation"

Nobody will be surprised : the main target covered by the bosses is to reduce the cost of the most expensive component of the compensation scheme : the income replacement indemnity.

The employer members of the working group based on the premise that there would be workers and victims of accidents and the working of the diseases that are "over-compensation".

We can not, from the start, note that the effrontery of the employers on this issue. Everyone should know, especially employers, that workers and workers who have accidents and occupational diseases are compensated on the basis of 90% of their net income and lose many benefits. In fact, according to estimates that were made by the CSST (see’Draft Law on Workers' Compensation, 15 August 1981, comments, p.30) the loss of income incurred by a worker or a worker, when an employment injury, equals 120% his wages; indemnified 90% its income, So the victim suffered a loss of 30%. This is also why the CSST proposed to compensate the working people on the basis of 100% net income and to pay employer contributions to workers' social security schemes, such QPP and Unemployment Insurance. Faced with an outcry initiated by employers at the time, cost reduction has once again triumphed at the expense of fair compensation and under-compensation was maintained.

Furthermore, this under-compensation which strikes the injured workers has worsened in recent years. Indeed, since 2004, the Quebec government introduced the measure "tax adjustment" with the effect of indirectly taxing the income benefits that are not yet taxable. This measure, a victim of occupational injury (or his or her spouse) may be forced to pay up 1 882 $, for the tax year 2009, in additional tax because it has received income replacement benefits.

It is therefore necessary to have the front in the back of the head to support the victims of occupational injuries are "over-compensation".

The calculation of income

As for practical steps that employers want to bring forward, the first target is referred workers compensation and work-based workers 'atypical', or all of those and those who have not been employed permanently and full time in the year preceding the occurrence of the accident or occupational disease. We speak especially of women and men call workers, part time, seasonal, contractual, and those and those who have suffered a work stoppage (unemployment, disease, parental leave, occupational injury, preventive withdrawal, leave without pay, etc.).

To solve this problem ", the employers suggested changing the current rule, which is to use the expected annual income to the employment contract, to substitute the reported income on line 101 of the tax return on income for the year preceding the event.

The proposal calls into question the very basis of the compensation of the current law principles. Indeed, the law aims to compensate for the loss of earning capacity of the worker's. For exemple, despite the fact that a worker holds a part-time job at the time of the accident, it has the ability to work full time, it can not do when it becomes unable "full-time" work following his injury.

Despite its name, and as we have seen previously, the replacement indemnity under the current law income definitely not replace the income lost due to occupational injury. It is only a measure of compensation for loss of earning capacity of the victim, rule-based calculation of general application and not an actual replacement of lost income.

Employers trying to forget the compensatory nature of compensation to replace only the actual salary earned by the worker or the worker before the event. Or, as we have already said, this is not because the worker or the worker in, for example, a part-time job at the time of the event, its ability to work and future gain is limited to part-time work.

Furthermore, if we take the income of the tax year preceding the event, the Workers would lose salary increases (salary increases, change level, promotion, etc.) occurred during the year. Indeed, if a worker has suffered an industrial accident in December 2009, it would be compensated on the basis of his employment income earned from January 1 2008 the 31 December 2008.

We can not agree to such a vision that goes against the principles underlying the compensation scheme.

The minimum salary

Other employer's proposal to solve the "problem of over-compensation" : abolish the rule of the minimum wage.

The current law provides for a minimum and maximum annual insurable. In 2010, the yearly maximum insurable amount of 62 500 $ while the minimum is equal to the legal minimum wage in Quebec for normal work week (40 hours a week 9 $ time), is 18 720$.

While the yearly maximum insurable amount is not based on any principle and has no justification, except to save costs to employers, the minimum compensation rule is based, as we have seen, on the principle of compensation for loss of earning capacity of the victim; as no one is supposed to work under minimum wage, the annual loss of earning capacity can not be less than the minimum wage.

Despite this, and in the name of "fairness", employers claiming the abolition of the current rule of a minimum compensation based on the minimum wage but, oddly enough, do no offers to abolish the rule of the maximum yearly insurable ...

What employers hope, is to enshrine in law the case "McDonalds" who fights for years to bring down the rule of the minimum wage. If this materializes, a young 19 years, working for minimum wage at the rate of 20 hours per week, becoming invalid because of a paraplegic following an accident at work, receive "in fairness" to 65 years an income replacement indemnity based on gross income 9 360 $, an annual compensation 8 039,46 $. It is far from clear that he would sing every morning "I like MacDonald"!

Workers and retired workers

Employers also wants workers and retired workers, who suffer a workplace injury, can no longer be compensated by the CSST.

As everyone knows, a retired person is not disabled and still has a working capacity. Moreover, more and more retired workers return to the labor market, while drawing their pensions if they are paid for their entire working life, or by contributing directly to their salary or even enjoying a contribution paid by the employer in exchange for their work performance.

Management representatives to the working group wish that these workers can not touch an income replacement indemnity in case of occupational injury, particularly those undergoing relapse, recurrence or worsening of a previous occupational injury.

Just like the previous examples, employers still recovering once into question the principle underlying the income replacement indemnity, or compensation for loss of earning capacity.

This questioning of the foundations of the regime is unacceptable to us.

The reduced compensation

Employers also hope the replacement indemnity reduced income received by workers', as compensation when they have to take a lower-paying job because their occupational injury prevents them from exercising their jobs, be revised according to new rules.

This allowance is, in theory, to offset the wage difference between on the one hand, not the salary drawn from the pre-injury job but the income replacement indemnity received the worker or the worker and, on the other hand, the salary CSST evaluates the worker or the worker could get a suitable job. The penalty 10% thus perpetuated in the calculation of the indemnity reduced.

This revision is done every five years, except for the first five-year period when it is expected a further review two years after the determination of the ability to take a suitable job. This revision should be done only if the salary of the job actually occupied by the worker or the worker on the date of the revision is above the fictitious salary CSST set in the determination of suitable employment. If the salary is less than the expected salary for suitable employment (or if the worker or the worker does not carry on employment), CSST does not review the compensation. The reduced compensation may therefore, the best, being maintained but not increased. In the facts, this compensation is often diminished during these revisions.

For employers, this injustice is not enough. It therefore claims that the income used for the revision of the replacement indemnity reduced income takes account of all income from all jobs during the year preceding the revision, even if the worker or the worker is no longer employed at the time of the revision or occupies a lower-paying job.

If employers really wanted to solve a perceived problem of equity and "over-compensation", he may propose that the reduced income replacement indemnity compensates the shortfall real when suitable job offers actually occupied an income below the pre-injury job. Sure, it is not part of the list of employers' claims as this would blow the costs of compensation ...

We therefore oppose such a claim.

Other changes sought by employers

1) The medical issue

As was to be expected on the issue of the medical evaluation process, employers do not call into question the usefulness and relevance of the existence of the Bureau d'évaluation médicale (BÉM) since the process is well.

The only criticism of this issue is that it regrets that the BEM was not obliged to assess the permanent impairment and functional limitations when it decides that a lesion is consolidated, even if no doctor has made such an assessment.

As BEM already has that discretion and it is now used almost systematically, and regularly flout the rights of working men and women with a true assessment of their condition, it is not clear why the employers want to "force" the BEM to comment, even in situations where the member of the BEM considers that it lacks the necessary elements to make such an assessment.

However, we agree with the employers on the fact that it is necessary to speak of the BEM and all the medical assessment process. A serious reflection on this issue should inevitably bring a recommendation to abolish the BEM and all the medical assessment process, as did the working group of the CSST on diversion in 1994 (Diversion of the Quebec system of health and work safety, CSST, 6 May 1994, pp. 49-51). and we would end this ultimate tool of convenience and Medicine interest to replace it with a medicine that heals.

Regarding the care and treatment, employers also regrets that there is no maximum physiotherapy payable by the CSST in a folder.

It is mainly through regulatory means that the CSST has managed to restrict the right to medical assistance. Recall that the law stipulates that it is the doctor who decides the care and treatment necessary for the consolidation of the lesion. so far, it is through the imposition of conditions of all kinds to stakeholders and health professionals or by the absence of such treatments covered, such osteopathy, the CSST has managed to limit medical assistance.

It is therefore understandable that employers want the law to be amended to give the CSST the regulatory power to limit the number of treatments payable, what it can do now directly.

Attribute such power to the CSST would call into question another important principle of law, whether he returns to the doctor to take medical decisions. We therefore oppose vigorously to this employers claim.

Finally, employers want the CSST can make agreements with private clinics for them to do surgeries, as she managed to do in the fields of physical therapy and occupational therapy in the years 1980, with the catastrophic impacts that we know today on public services in these areas. Is it not because of these outsourcing practices with the private clinics that the CSST should, by employers, limit the number of physical therapy because it is too expensive? We do not think either one avenue that the working group should explore.

2) rehabilitation

Employers also hope changes to the concept of suitable employment. We would like the CSST can designate several suitable jobs or generic suitable employment to a worker or a worker. According to them, the requirement to clearly identify a suitable job would be "anti-professional rehabilitation".

It misunderstands what is "anti-rehabilitation" to clearly define a job. It's like a career counselor advised a young dropout, to put the odds on his side, to complete law school, in medicine, engineering and machining technique. guaranteed success!

Recall that for working people who can not redo their jobs because of the effects of their injury, suitable employment is the heart of the vocational rehabilitation process since all CSST measures should aim to make the worker or the worker to hold such a job. How can we hope to adequately rehabilitate a worker or a worker to enable him to carry a dozen jobs?

The motivations of the employers on this issue has nothing to do with rehabilitation issues. What one seeks the introduction of such a measure, is to make almost impossible the challenge to the determination of a suitable job. Proving that a job is not proper before the CLP is already not easy; demonstrate that it is unable to do any and all jobs from a list of twenty "suitable" jobs would become a Herculean task. who, apart employers and prevention mutuals, has the means to spend a week in court to dissect the characteristics of a long job list as the arm?

We hope that the government will not go in that direction.

3) The resorts

The employers would like to limit the powers of the CLP. Indeed, management representatives deplored the fact that "the employment injuries Commission (C.L.P.) is not bound by the CSST policies even if they were adopted jointly. This situation encourages disputes because nobody has nothing to lose ".

What employers hope, is that the only independent tribunal CSST becomes bound by the policies of the latter. In fact, it is desired that the CLP is bound by the same rules as the internal review body the CSST (the DRA).

In fact, the role of the DRA can be likened to a quality control : being bound by the CSST policies, the auditor necessarily maintain a first instance decision whether CSST policies were being followed and that, even if they violate the law and the interpretation made by the courts. This is in large part what explains the fact that it has changed 1 735 of the 23 610 decisions made 2008, is a reversal rate of only 7,4%. When this reality is known, one can only agree with the assessment made employers : if the CLP was bound by the CSST policies, it would discourage dissent since nobody would have nothing to gain!

But who would control the role of the CSST? At the Superior Court? And that, apart employers, truly has the means and resources to address them?

The employers claim is probably the most dangerous of those contained in their claims because of platform challenges the opportunity to assert and enforce all rights under the law.

We are categorically opposed.

4) Integration with social security schemes

The employers would like that there is "integration" of social security systems and the compensation system of occupational injuries. When we talk about integration, mostly we talk about cost sharing.

Currently, laws provide, Well Named, the CSST pays first when another public plan may be involved. for example, if a bus driver is involved in a road accident, the CSST (and therefore employers) who should bear the compensation and not the SAAQ. If a worker is disabled due to a work accident, it's the CSST must compensate not the RRQ.

This integration should aim, according to the employers' representatives, nothing less than the pension plan, EI, Auto Insurance, the parental insurance, the OAS and the private pension schemes.

Employers request that there is "a fair and reasonable integration between all regimes".

It may be pertinent to remind employers that the occupational injury compensation scheme is not a social program : it is employers liability insurance scheme and that it would no "fair and reasonable" that the community, by its social programs, bear the costs of its lack of will to prevent occupational injuries.

We also note that, reluctanlty, employer representatives to the working group agree that the working people can be penalized by the fact that they are not contributing to social security schemes : « […] long-term disability in workers may also experience some loss over their pension benefits from the pension board. This file needs to be documented to correct it if necessary. »

This statement should be corrected. Rather than reading "the long-term disabled workers may also experience some loss", should read the short-term disability or long-term workers may also experience some loss since every day off work can have an impact on pension.

We do not believe that the case "deserves to be documented" since it is documented for a long time, both the CSST and the QPP and the National Assembly at parliamentary committees; The time for study is long gone, this situation is known and it is our opinion time to act to stop this injustice, As regarding the QPP as other social security programs.

Conclusion

The employers filing claims major elements for a reform of prevention and compensation plans of occupational injuries in the working group shows clearly the vision of the employers on the issue of prevention. No proposed change was made to improve the health and safety of the Labor Law. All the proposals rather to reduce costs of the compensation scheme, not by preventing the occurrence of occupational injuries, but rather by attempting to reduce the rights of workers'.

Many of these proposals are extremely worrying since many are questioning the foundations of the compensation scheme.

We must therefore remain vigilant in the coming months because, without active mobilization, we risk ending up with a system of compensation for occupational injuries completely denatured.