Putting Injured Workers First

BORN ADVOCATE Langley’s Roberta Mercier pushed for changes to the province’s workers’ compensation legislation to prevent disability benefits from being eroded by inflation.

Dona Mackie loved convertible Volkswagen Beetles, Bernese Mountain dogs and her home on Salt Spring Island, where she lived with Bob, her husband of 50 years, until her death last October.

Another true love of hers, however, was working as a nurse in the operating room, something she did ever since graduating from Montreal’s Royal Victoria Hospital.

Bob MacKie chokes up when describing his late wife’s infectious personality, intelligence, and overall passion to live life to the fullest, despite being diagnosed with a rare form of cancer in 2010.

MacKie began her career in Ontario in 1973. Over the years, she honed her skills as an OR nurse at Surrey Memorial and Abbotsford Regional hospitals. She loved the teamwork mentality of the OR and felt respected by the surgeons and doctors she worked so closely with.

MacKie was well respected in her community. She also had a knack for making close friends and developed life-long friendships with many of her colleagues.

“Dona could walk into a room and shortly after, know 80 percent of the people there,” says Bob. “She was so social. She was such a good person.”

In the early aughts, a chance encounter with a beekeeper at her home on Salt Spring Island resulted in MacKie taking a job running the OR at the island’s Lady Minto Hospital.

“The beekeeper told Dona that he was allergic to bees, and she immediately asked him if he had his medication with him,” explains Bob. “Dona told him she was an OR nurse and it turned out his wife was a nurse at Lady Minto, and a couple of days later Dona got a call asking if she’d consider joining the team at the hospital. She was delighted.

“The OR was her life,” says Bob. “She just fell in love with it and it’s what she was meant to do.”

But there was little to love about the politics surrounding Lady Minto Hospital. And factors beyond the bedside had an impact on MacKie’s health, leading to a 2011 workplace injury that cost her the job she loved.

Citing low volume and efficiency concerns, Island Heath announced in 2010 that it would be closing Lady Minto OR. It was a stressful time. The community was in an uproar, as the health authority had just spent $5-million renovating the unit five years earlier, using significant community fundraising contributions.

One day in January 2011, MacKie’s manager asked her to speak about the downsizing of the OR to a person she understood was to be associated with the Island Health board of directors. MacKie did not want to take the call, but her manager told her she was the appropriate person to speak to the matter.

We made sure the government made nurses’ health and well-being a priority.”

- BCNU Executive Councillor Aida Herrera.

MacKie feared saying anything that might affect her job. She was professional, neutral and accurate in the discussion, but recalled the experience as being very stressful.

During this conversation, MacKie suffered a myocardial infarction. Injured and unable to return to the OR, she filed a compensation claim that was challenged by WorkSafeBC.

Thus began an ordeal that saw MacKie make several appeals to the Workers’ Compensation Appeal Tribunal (WCAT) before she eventually won her case. By then, more than 11 years had passed, and she was in the end stages of terminal cancer.

The WCAT’s inability to review its earlier decisions ended up being a major obstacle for MacKie. In fact, several of the province’s own reviews of the compensation appeals process recommend giving the WCAT this authority. Had this been the case, MacKie’s claim would have been decided much earlier and she could have found another five years in suitable alternative nursing work.

She died a short time after her claim was finally accepted.

Getting injured while on the job is an unfortunate and often unexpected experience for many workers in BC. And there is no shortage of stories like MacKie’s, where the WorkSafeBC compensation approval process can often seem as painful as the injury or illness that triggered a claim.

But now, for the first time in over 20 years, there have been significant amendments to the province’s workers’ compensation law that could open the door to further changes to prevent the kinds of errors and delays seen with MacKie’s claim.

Last November, the provincial government enacted Bill 41, the Workers Compensation Amendment Act (No. 2), 2022. Among other things, the legislation introduces provisions for the establishment of a Fair Practices Commissioner for complaints involving WorkSafeBC, the expansion of access to independent health professionals during WCAT proceedings, strengthened prohibitions on claim suppression by employers, the indexing of workers’ compensation benefits to inflation and, most significantly, a specific legal obligation for employers to return injured workers to work, including a duty to cooperate and to maintain employment. (See sidebar: “What’s Changing for the Better?”).

The changes were informed by a series of periodic reviews of the compensation system commissioned by the province in recent years to ensure that it continues to reflect worker and employer interests and is keeping pace with other Canadian jurisdictions. These reviews have often resulted in amendments to the act and the policies and practices of WorkSafeBC.

One of the most recent reviews was launched in April 2019 and led by Janet Patterson. Her report, released in August 2020, provided recommendations for system-wide and structural changes to achieve a more effective process for workers.

Few of the changes contained in Bill 41 would have happened without years of determined lobbying and advocacy by unions in the province. For too long, their members were dismissed or had to endure a WorkSafeBC claims process that often compounded their suffering.

Aida Herrera is BCNU Executive Councillor for occupational health and safety and mental health. She says members should celebrate the Bill 41 amendments, but also wants them to know that the union will never stop advocating to ensure all of its members are treated fairly and with respect.

Herrera recalls the 2019 regulatory changes to compensation law that gave nurses living with mental injury following workplace trauma access to services and compensation. The list of eligible occupations previously included paramedics, police officers, firefighters, corrections officers and other first responders.

I loved my job, but the system is built on a lack of trust.”

- Roberta Mercier

“Nurses had been rallying, lobbying and fighting for years before we were finally added to the list of occupations that have easier access to workers’ compensation for mental-health disorders that come from work-related trauma,” she says.

“The demands and the needs of thousands of nurses were acknowledged,” she recalls. “It took sustained advocacy on behalf of members who’d been facing barriers in getting claims accepted by WorkSafeBC, and we made sure the government made the health and well-being of nurses a priority.”

Herrera calls on all members to be advocates for themselves and each other to ensure everyone has access to the illness and disability supports they need.

Roberta Mercier is one of those advocates. Last year she wrote to labour minister Harry Bains about her compensation benefits being indexed below the rate of inflation. She told him that limiting cost-of-living increases was unfair to workers like her and eroded the value and purchasing power of benefits over time.

The Langley nurse sustained a back injury early in her career while working in the neurosurgery unit at Royal Columbian Hospital. The incident resulted in a life-long journey to find her voice as a nurse living and working in chronic pain.

Mercier was only 29 years-old when she experienced a sudden herniation of a disc in her back while on shift. After a CT scan exposed the severity of the injury, she was transferred to work at the neonatal ward at Children’s Hospital. Four years later, now 35 years-old and a mother to a one-year-old baby and three school-aged children, Mercier was again dealt a massive blow, with the rupture of a large disc in her lower back. The injury was so severe, she temporarily lost bowel and bladder function and the use of her legs and had to have emergency surgery.

“The surgeon told me I was very lucky that they were able to operate when they did or it could have been even worse,” says Mercier. “But he also said I couldn’t go back to my job.” WorkSafeBC had a different idea. “It was a battle with WorkSafeBC from the very beginning,” she recalls.

Mercier still needed to use a cane and frequently experienced severe weakness in her feet. Despite this, WorkSafeBC insisted she should be able to go back to the nursery. Instead, she turned to public health and worked in the field for two years.

She describes that time as immensely challenging.

“I was living with chronic pain and I just managed and did what I had to do. But the quality of life…it wasn’t good,” says Mercier, who was also raising four children and working full-time in between getting epidural injections every few months to get some relief for the nerve pain she was experiencing.

It got to a point where she told her surgeon she couldn’t live like this much longer.

“Things got terribly dark,” Mercier admits. “Doctors sent me to the spinal cord clinic at VGH because they were worried about how much pain I was in. There, they adjusted my pain medication, and that really turned my life around.”

Mercier never returned to the bedside, but instead, returned to school to earn a master’s degree in adult education, and landed a teaching job in the nursing department at Douglas College before retiring in 2013. She says the most frustrating thing about her fight with WorkSafeBC were the roadblocks she says kept being placed in front of her as she tried to manage a debilitating injury, and the impact it would have on a career she adored.

“I really wanted to work,” she says. “It wasn’t like I was trying to pull the wool over anybody’s eyes. I loved my job. But the system is built on a lack of trust and instead of helping you, you get nowhere.”

The benefits that Mercier did end up receiving from WorkSafeBC compounded her frustration.

Her injuries allowed her to claim a permanent partial benefit for a disability, which was noted by the board following her first surgery in 1994. In these cases, WorkSafeBC prorates an individual’s impairment, and calculates their benefit as a percentage of the function of a whole person.

 

“As I deteriorated and was reassessed, so too was the percentage of the disability,” explains Mercier.

Having a permanent partial disability and being able to work full time is something she thinks most people have a hard time understanding. “The key for me was finding things I could do.”

She says teaching was in many ways vastly different than acute care, and having a clinical placement in acute care with students was not the same as working on a unit as a nurse.

“My focus was the students and the care they gave the patients: making sure everyone was safe and that students had a good clinical experience and that they had lots of opportunities,” she says. “When I couldn’t do acute care with students anymore after my back got worse, I was lucky enough to be able to do a community experience with them.”

Mercier decided to retire from teaching in 2018, after she was no longer able to effectively manage her pain. “I think I stuck it out way longer than I should have,” she admits. “I must have had 15 to 20 epidural injections done over a couple of years, and that’s how I managed.”

Like so many other workers with disabilities, the value of her compensation was seriously eroded by the lack of full indexing to inflation.

“I am thrilled to have full indexing now,” says Mercier. “Obviously I am disappointed that the indexing isn’t retroactive, but understand that the cost would likely be prohibitive. The important thing is that it’s fixed going forward.”

She says her letter to Minister Bains was written on behalf of all workers affected by the old CPI minus one-percent formula. “I have a real problem when people are treated disrespectfully or have suffered an injustice, she says.

“I did receive a detailed response and as a result I felt like what I had to say mattered.”

Herrera says that ongoing diligence will be required to ensure the enacted amendments to the law result in tangible changes to WorkSafeBC’s policies and practices.

“The legislative changes are significant, and we still have unanswered questions about various aspects of the changes,” she reports. “We want to see who will be appointed as the fair practice commissioner, and will be scrutinizing the office’s rules and procedures when they are developed.”

She says nurses expect the fair practice commissioner’s office to be substantially more effective than the current Fair Practices Office, which has faced criticism from both the worker and employer communities as being ineffective.

“WorkSafeBC will have to create new policy for all of the changes that result from Bill 41,” she notes, “and we will be actively participating in the policy consultation process.”

In the meantime, Herrera encourages any member who’s been injured to contact their steward, regional OHS rep or the BCNU WorkSafeBC advocate assigned to their region.

“If you are injured or become ill as a result of your work, you may be eligible for WorkSafeBC benefits, including health-care expenses and wage loss compensation,” she says.

“The claims process, even following the recent changes to the Workers Compensation Act, can be challenging, even for knowledgeable workers, and it’s important to contact your union for help if you needed it,” Herrera adds.

Mercier agrees.

“Do not be afraid to reach out to your union for help,” she says. “Everyone at BCNU I’ve had interactions with has been very supportive.”

To those workers who may be having difficulties making claims, she says it’s important they do not give up, and tells them to learn as much as possible about the compensation process. “I found reading the Workers Compensation Act incredibly helpful,” she reports.

Just because people cannot see your injury doesn’t mean it isn’t there.”

- Roberta Mercier

“Injured workers are absolutely entitled to compensation and help after a workplace injury. It is the law and nothing to feel ashamed or embarrassed about.”

Mercier’s message to anyone going through a similar situation? “First, take care of yourself, especially your mental health,” she says. “Recovering from an injury, or suffering from chronic pain is draining and can be overwhelming. Just because people cannot see your injury doesn’t mean it isn’t there.”

Herrera says the struggles that so many workers like Mercier have endured have become part of an unfortunate narrative that drives people away from the supports they deserve and, ultimately, the profession they love.

She notes that many of Bill 41’s changes to the Workers Compensation Act were informed by the Patterson Review’s assessment of WorkSafeBC’s practices and culture, which found that the organization had not adequately considered injured workers’ circumstances while seeking to fully maximize their recovery. The review called for a shift away from WorkSafeBC’s current “insurance” model to one that is worker-centric, where people are treated with dignity and offered effective return-to-work services. “This shift can’t come soon enough,” says Herrera, who wants no one else to experience what Dona MacKie did.

MacKie’s dream of travelling to France came true in 2021, when she and Bob took a three-week holiday. By then, her health had deteriorated, and she was reliant on a wheelchair. While there, two international students she had known on Salt Spring Island reached out to see her one last time.

“It just shows the impact she had on people,” says Bob. “When you’re a nurse on a small island, in a small community hospital, you get to know many people. She loved helping people and even though she worked long hours, she also managed to raise three children. She was just phenomenal.” •

UPDATE (Spring 2023)