Excuses for missed hearings by WorkSafe boss don’t sit well with tribunal chair

Daniel Theriault objects to explanation MLAs heard for WorkSafe’s absence from appeal hearings
By Jacques Poitras, CBC News Posted: Jan 24, 2017 6:00 AM AT Last Updated: Jan 24, 2017 8:32 AM AT

The CEO of WorkSafeNB is being accused of giving misleading information to a committee of MLAs at the legislature last week. Tim Petersen was explaining last Thursday why his Crown corporation had not even shown up to argue against rulings by an appeal tribunal, rulings that drove up costs now being passed on to employers. But several of Petersen’s statements are being challenged by Daniel Theriault, who chairs the independent Workers Compensation Appeal Tribunal.

WorkSafe decisions on benefits for injured workers are appealable to the tribunal, and the tribunal has issued several rulings overturning decisions and forcing the corporation to pay out higher benefits.

Standing was not denied
Petersen said WorkSafe wanted to defend its decisions but was turned down. “We have in fact sought standing at a number of different appeal hearings, unsuccessfully,” he told the committee. He also said his predecessor had made a “commitment” to Theriault that WorkSafe would avoid “seeking standing” except in specific cases “so as not to bog down the process” of a worker being awarded benefits.

Theriault said Monday that Petersen was wrong on both counts. He said WorkSafe doesn’t have to “seek” standing to defend its decisions. “The way the legislation is worded,” he said, “WorkSafe is a party to each and every hearing automatically. So they don’t have to seek standing.”

And he said he was not aware of any commitment by WorkSafe to limit its appearances to avoid bogging down the process.

Bogging down not a worry
In fact, Theriault said, WorkSafe attendance at a hearing would only add an hour or two to the entire processing of a worker’s claim. “Their attendance would not bog our process down,” he said. “Our process is set, dates are set, so there’d be nothing to bog it down.”

Petersen was careful last week to tell MLAs he was not criticizing the decisions by the tribunal, which began operating in April 2015 as an independent appeal body for WorkSafe rulings. “They’ve been legislated to do a job and they’re doing that job, so [it’s] not a judgment about that,” he said.

But even so, he said, several rulings had created precedents that forced WorkSafe to pay out higher benefits or account for its costs in a different way.

Blamed tribunal for part of increase
That was responsible for about 15 cents of the 37-cent increase employers were hit with on Jan. 1, he said. Employers have been complaining that the increase, to $1.48 from $1.11 for every $100 of payroll, would make it more expensive for them to hire more workers.

Petersen said one appeal ruling in particular was costly: a tribunal ruling that WorkSafe could not reduce benefits if workers’ retirement money invested in the markets lost value during a downturn.
– ‘Significant’ hike in WorkSafeNB rates likely in 2018, employers told
– Workers’ Compensation Appeals Tribunal overturns 90% of cases 

“If I’m not mistaken, we did not have notification of that appeal,” Petersen told reporters. He attributed that to the fact it happened just as the tribunal was starting to operate. “Any time there’s that type of transition, there are sort of bumps along the way, and that was probably a result of that,” he said. If WorkSafe had known, he added, “that’s one we probably would have definitely considered appearing on.”

WorkSafe wrong on all counts
But Theriault said Petersen was wrong about that, too. He said the tribunal has held six hearings since April 2015 on cases relating to the negative value of retirement benefits. “I’ve double-checked our records and on each case, [WorkSafe] was notified of the hearing date,” he says. “They chose not to attend any of the six.”

Petersen told MLAs last week that WorkSafe only has two lawyers on staff, making it difficult to take on a large number of appeals. But Theriault said he told Petersen that it doesn’t have to be a lawyer who attends the hearing. A claim manager would be enough.

He said that of 541 hearings the tribunal has held since April 2015, WorkSafe has shown up for four, which makes it difficult to consider the Crown corporation’s rationale for its decisions.

“Any argument WorkSafe would want to bring forward is not present to be considered by our tribunal,” he said. “If they’re arguing that it’s such a cost consequence to them, they should make every effort to rectify that consequence.”

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