Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: Workers compensation costs bleeding into MSP

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

One of the institutions we treasure most as Canadians is our national health care system.

Under the Canada Health Act (CHA), all “insured persons” are entitled to receive “insured health services” without charge.

“Insured health services”

means hospital services, physician services and surgical-dental services provided to insured persons, but does not include any health services that a person is entitled to and eligible for under any other Act of Parliament or under any Act of the legislature of a province that relates to workers’ or workmen’s compensation

The CHA affirms five founding principles:

  1. public administration on a non-profit basis by a public authority;
  2. comprehensiveness – provincial health plans must insure all services that are medically necessary;
  3. universality –all who reside in Canada must have access to public healthcare and insured services on uniform terms and conditions;
  4. portability – residents must be covered while temporarily absent from their province of residence; and
  5. accessibility – insured persons must have reasonable and uniform access to insured health services, free of financial or other barriers.

Because health care is an area of provincial jurisdiction, each province manages its own health insurance system.

Failure by a province to abide by the CHA could result in the federal government withholding federal health care funding.

In British Columbia, health care is delivered through the Medical Services Plan (MSP) of British Columbia.

MSP is managed by the Medical Services Commission (MSC).

The MSP and the MSC are established and governed by the Medicare Protection Act.

Public health care dates back to 1947, when Saskatchewan first introduced “hospitalization”, covering hospital costs. Various subsequent developments eventually led to the CHA in 1984.

The workers compensation system pre-dated public health care. B.C’s current system dates back to the Workmen’s Compensation Act of 1916.

The CHA’s exemption of “any health services that a person is entitled to and eligible for … under any Act of the legislature of a province that relates to workers’ or workmen’s compensation” from the definition of “insured health services” seems at first blush to make sense.

Since the cost of health care services for injured workers are – presumably – already covered by the workers’ compensation system, publicly funded health care services need not be extended to them.

Once someone is “entitled to and eligible for” health services under workers compensation legislation, then the person is exempt from health services under the CHA in respect of the injury.

When a workers’ compensation board refuses to provide health care, it creates a gap. Based on the wording of the CHA, the person involved remains exempt from the CHA and therefore ineligible for publicly funded health care for his or her injury.

In such circumstances, the person is left without any healthcare whatsoever. None from the public system. None from the workers’ compensation system.

Section 163(2) of the current Workers’ Compensation Act (WCA) states that

any health care provided by the physician or qualified practitioner is subject to the direction, supervision and control of the Board.

So if you are injured at work in B.C., not only is your injury outside MSP, but – according to the WCA — the Board, not you, has full control over your health care.

While this provision may have made some sense before public health care existed, it is of questionable enforceability in light of certain Supreme Court of Canada decisions, including Carter v. Canada (Attorney General).

Carter is the case which established the right to medical assistance in dying.

In that case, the Supreme Court of Canada held that depriving a person of the right to make important and fundamental life choices about their health and their own bodily integrity infringes s. 7 of the Canadian Charter of Rights and Freedoms.

Section 7 states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Attempts by the injured or their physicians to access MSP services anyway to address this deprivation places unnecessary strain on our public health care system.

The injured, physicians, and the health care system, ought not to be placed in this position.

These costs are intended, and ought, to be absorbed by the Board, which in B.C. is fully funded by employers.

These costs are not intended, and ought not, to be forced into MSP, ultimately funded by individual taxpayers.

Of course, a precondition to the Board absorbing such costs is that it responsibly administer claims. As discussed in recent articles in this column, here, here and here, that is not happening in B.C.

Sedulously managing the provincial health care budget necessarily entails closely scrutinizing what is occurring within BC’s workers compensation system.

Public health care expenses can be significantly reduced, without a corresponding increase in taxes, simply by making significant reforms to BC’s Workers Compensation Board.

Implementing the recommendations of the New Directions Report of the Workers’ Compensation Board Review, 2019 would be a good place to start.

In case you missed it?

2019 new directions report on B.C.’s WCB

AboutSusanKootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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