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Ombudsperson calls for changes to permit WorkSafeBC to voluntarily make payments for its own errors

Thursday, September 16, 2021

Victoria – The Ombudsperson is calling on the province to fix a rarely occurring but significant gap in B.C.’s workers compensation law.

Severed Trust: Enabling WorkSafeBC to do the right thing when its mistakes hurt injured workers arose from a case where errors made by WorkSafeBC terminating the benefits of an already injured worker directly led to a second, more serious injury resulting in a partial amputation of a worker’s hand. After the second accident, WorkSafeBC’s Review Division ruled that it was wrong to have terminated the injured worker’s benefits following the first accident.

“This is a tragic case. A significant error by WorkSafeBC resulted in a worker losing much of one of his hands,” said Ombudsperson Jay Chalke. “And under the current law, WorkSafeBC is unable to right its wrong. In the delivery of public services, errors and mistakes will happen and public organizations should not be prevented by provincial law from doing what’s right for members of the public who are seriously harmed as a result.”

During the course of our investigation, WorkSafeBC acknowledged its mistake, committed to improving several internal processes to prevent this type of error from occurring again and agreed to apologize to the injured worker. However, it refused to make restitution to the worker for its mistake, citing legal immunity.

“WorkSafeBC acknowledged its actions and apologized. And while an apology is important, there are times when saying sorry is simply insufficient,” said Chalke. “Government says our proposal would create fault-based liability for WorkSafeBC, but that’s not what we recommended. In fact, with our recommendation WorkSafeBC’s protection from civil liability would remain in place. Our proposal is that that WorkSafeBC be allowed to voluntarily provide restitution where they recognize their own error.”

The Ministry of Labour has rejected three recommendations to provide restitution to the injured worker in this case and future workers who are similarly harmed:

  1. Propose amendments to the Workers Compensation Act to create a mechanism and a fund to enable WorkSafe BC, on its own initiative and at its sole discretion, to provide monetary compensation to seriously injured workers harmed by WorkSafeBC errors.
  2. Compensate the injured worker by way of an ex-gratia payment to be determined by a retired Supreme Court of British Columbia judge pending the legislative changes.
  3. Pay the reasonable legal expenses incurred by the injured worker to present his case to the retired judge.

“While I am pleased WorkSafeBC made changes to reduce the chances of this happening again, I am surprised and disappointed by the Ministry of Labour’s response to reject giving WorkSafeBC a path to provide restitution on a voluntary basis. WorkSafeBC’s role is to protect workers and to provide sufficient funds so that injured workers receive adequate medical and financial support. This case highlights a significant gap in WorkSafe’s ability to do just that, in the rare cases where their error has such life-altering consequences,” said Chalke. “Despite our drawing this tragedy to government’s attention, the Ministry of Labour refuses to make a modest change in the law to give WorkSafeBC the discretion to voluntarily make amends in such cases.”

View the full report here.

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