Workers Compensation in Ontario A System in Crisis

Workers Compensation in Ontario A System in Crisis A Report from the Ontario Business Coalition Prepared by: J. Edward Nixon, FSA, FCIA

Contents 1. Executive Summary...1 2. Premium Rates are Too High...2 3. The $11.5 Billion Unfunded Liability...5 4. Ten Years of Benefit Cost Losses...10 5. Where Should we be Financially Today?...13 6. Competitive Comparisons...16 i

1 Executive Summary The financial crisis in Ontario s workers compensation system has created an enormous inequitable financial burden for employers in our province and produced a lack of confidence by employers in the ability of our Government and Workplace Safety and Insurance Board. Employers and employees have reduced accident rates by 40% over the past 10 years while the WSIB have allowed average claim costs to increase by 119%. Essentially the successful effort to reduce accidents has been cancelled by runaway average claim costs. Today the cost of insurance in the system is surcharged by 60% to make a payment against the unfunded liability. However, this surcharge is completely used to pay for new annual losses that are developing. The unfunded liability is close to $12 billion. Ten years ago it was projected to be about $2.5 by 2008, so at least $9 billion has been lost in the fight to liquidate this debt. This debt creates a crisis of confidence for employers in the apparent inability of the government and the WSIB to operate a financially sound system. In the past 10 years losses have totalled $6 billion on benefit costs exceeding expected levels. This dramatic evolving trend was identified by management at the WSIB in a major study on the Funding Framework done in February 2005. No action has been taken on this catastrophe yet. If strong action had been taken in 2005, there was the chance employers could have seen lower premium rates today and still paid off the unfunded liability by 2015. Since premiums paid by employers already contain a surcharge of 60% on the cost of insurance, it seems appropriate and required for the Board and Government to now set specific goals and targets for reducing claims costs. 1

2 Premium Rates are Too High The workers compensation system in Ontario is in a financial crisis which seriously undermines the competiveness of employers in the province. Employers pay the full cost of this insurance system and expect it to be operated in a sound financial manner. This financial mess will not self correct overtime - in fact it will get worse unless strong action is taken to stop the granting of excessive benefits. The composite average premium rate of $2.26, as the Schedule 1 premium rate, no longer represents a soundly structured cost of insurance to operate this system. On one hand employers are being dramatically overcharged for the benefits intended to be provided by this system. The legislative changes to the benefit structure in 1998 did not have the intention of dramatically increasing the cost of benefits. On the other hand the losses in the system are mounting so rapidly that the composite premium rate is significantly lower than required to properly fund the actual benefit costs being incurred. The premium rate has been set artificially at a level to attract the least resistance from employers without adequate attention being paid to the significant losses being incurred each year. Accident Rates Down 40% Once the past 10 years from 1998 to 2008 employers and employees have worked together to cut the accident frequency rate by 40%. Premium rates are a direct function of accident frequency rates. If accident rates drop by 40%, you expect premium rates to drop by 40%. However, the Ontario Schedule 1 rate fell by only 13% and is artificial. The cause of this financial crisis is clearly not poor accident prevention nor is it runaway administrative costs, nor is it consistently poor investment performance. There are two specific causes of this financial crisis: i. retroactive benefit increases granted to existing long tem claimants, and 2

ii. a dramatic increase in the number of long term awards and in the level of benefit granted. These were unintended when the last legislative review was done in 1998. The system has run losses on current operations every year for the past 10 years. The cost of benefit increases have outstripped any efforts to pay down the unfunded liability. Claim Costs Up by 119% In this 10 year time period, the average claim cost used to set premium rates increased by 119% from $11,006 to $24,133. The average claim cost is expected to increase in line with general wage inflation. However, in this 10 year period, the average insurable wage only increased by 26% in the Ontario System which would suggest an increase from $11,006 to $13,868 in the average claim cost. But a further 74% increase from $13,868 to $24,133 needs to be accounted for. It completely cancels out the effort of employers and employees who reduced accidents by 40%. The premium rate is also a direct function of the average claim cost. Employers believe responsibility for sound financial management of the system rests with the WSIB and the Government. However, the result has been disastrous over the past 10 years. It is apparent from an examination of the table in the appendix to this section that from 1998 through 2003 premium rate reductions were matching reduction in accident rates quite well. However, it was apparent in a Funding Framework study prepared by management in February 2005 that there were serious problems with escalating costs from the new Loss of Earnings benefit legislation introduced in 1998. To date it appears this known problem has not been addressed. The result is that employers, who supported a financially responsible system that included payments to liquidate the unfunded liability by 2014, now are cynical about the intentions of government and the Workplace Safety and Insurance Board. Employers are no longer supportive of making payments to the unfunded liability since they see such payments used to grant retroactive benefit increases and excessive long term awards. The WSIB likes to say that eliminating accidents will solve the unfunded liability problem. However, reducing or eliminating accidents will not reduce or eliminate the unfunded liability these amounts are needed to pay for benefits that have already been granted. You still need to collect funds to pay for these benefits. Alternatively the future benefits on existing claims could be reduced. Employers have a right to demand rate reductions given the success in reducing accidents. 3

Section 1 Appendix Schedule 1 Accident Frequency Rate vs. Average Claim Costs 10 years 1998 through 2008 Accident Frequency Rate Average Claim Costs Premium Rates 1998 2.50% $11,006 $2.59 1999 2.47 11,107 2.42 2000 2.46 11,638 2.29 2001 2.29 11,771 2.13 2002 2.20 12,223 2.13 2003 2.08 14,333 2.19 2004 1.98 14,356 2.19 2005 1.92 17,846 2.19 2006 1.74 19,560 2.26 2007 1.60 21,300 2.26 2008 1.50 24,133 2.26 10 Year Change Down 40% Up 119% Down 13% 10 Year Increase in Average Insurable Earnings = 26% 1998 Average Insurable Earnings - $28,252 2008 Average Insurable Earnings - $35,582 Source Premium Rate Manuals and Annual Reports of WSIB The Cost of New Injuries component in the premium rate equals: i. accident frequency rate, multiplied by ii. average claim cost, divided by iii. average insurable earnings 4

3 The $11.5 Billion Unfunded Liability The consequence of a $11.5 billion debt to be paid off by employers and indirectly by employees in upcoming years needs to be understood from several viewpoints. The ratio of assets to liabilities was 54% at December 31, 2008 and 66% at December 31, 2007. Every insurance system tries to balance assets and liabilities. In the private sector, if assets do not exceed liabilities the company is bankrupt. It is not sufficient simply to have positive cash flow. In Canada, workers compensation systems are public systems, but the entire funding cost is borne by a specific group of employers namely the insured employers, who do not represent the entire working population nor all tax payers. There is no good reason to systemically run a provincial workers compensation system in Canada where assets are continuously dramatically less than liabilities with no priority attached to balancing them. Some argue that the Ontario system only needs to have positive cash flow to be financially sound. The legislation certainly requires a soundly funded system however. The legislation does not include the power to tax the general public or every employer to cover the cost of the system. In fact British Columbia has recently gone to the other extreme and embraced the same strong capital requirements for its workers compensation system as used by chartered banks. Ultimately debt rating agencies will view weak funding as fiscal mismanagement by the Government of Ontario and attach a cost to borrowing by the province. This became an issue in the early 1990 s when the funding ratio was extremely low. 5

Cost of Insurance Loaded by 60% Currently, employers in Ontario pay 60% more than the cost of the insurance to contribute to this accumulated debt. This is a huge generational transfer of costs to current and future employers. The $2.26 premium rate consists of $1.40 for the cost of benefits and administration and the rest goes to the unfunded liability. Further we know now that the $.86 going to the unfunded liability is completely insufficient to pay off the debt in any reasonable period of time. Cost of Insurance Cost of New Injuries Administration Schedule 1 Premium Rate $1.01.39 Surcharge Unfunded Liability plus losses.86 $2.26 Workers compensation is a dynamic system of benefits the nature of employment relationships, injuries, rehabilitation procedures, rise and fall of different industries all change over time. As a result it is very important to link directly the premium charged in a time period to the insurance provided in the same period from a competitive and fairness viewpoint. The legislature requirement is that: The Board has a duty to maintain the insurance fund so as not to burden unduly or unfairly any class of Schedule 1 employers in future years with payments under the insurance plan in respect of accidents in previous years No business buys products or services which cost 60% above the cost of the product or service provided, No business chooses to pay for a provider s losses on products or services sold in prior years, certainly not if a competitive option exists. In Ontario, it appears likely the manufacturing and primary industry sectors may shrink. If so, then probably the service sector will continue to grow. The service sector is low cost sector for workers compensation. If we replace higher cost workers compensation sectors with low cost sectors and these lower cost sectors must pick up the same unfunded liability then they will pay much more than 60% above the true cost of their insurance. Ontario also has a further problem created by the definition of the insured workforce. Systemically Ontario could have a declining insured workforce. The legislation and regulations in Ontario define positively the industries that are mandatorily covered by workers compensation. The regulations do not say everyone is covered except the following. As a result many new age industries are not covered because they do not fit the archaic definitions of covered industries. As our economy changes and new technologies and industries develop, many are not required to be covered for workers 6

compensation. Who would voluntarily join when the cost of insurance is surcharged by 60% to pay for past losses and retroactive benefit increases? Completely adequate insurance coverage is available in the private market for most new age industries From time to time there is an initiative to change the coverage definition by requiring all employers and industries to be covered. This initiative has absolutely no chance of success if the actual cost of insurance needs to be surcharged by 60%. There will be fierce political resistance. However, if the system was fully funded or in surplus, then the prospective group being forced to join would at least feel they were getting value for money. Currently the large surcharge actually encourages revenue leakage. Some employers are incented to break up their company and turn the employees into independent operators who are not mandatorily covered. Ontario is the only province which consistently for the past 25 years has only paid lip service to operating their system on a sound financial basis the result has been a consistent lack of trust from the employer community. Many employers supported liquidation of the unfunded liability, only to see politicians hand out retroactive benefits to buy votes when progress was made on the unfunded liability. The ratio of assets to liabilities in aggregate for all jurisdictions in Canada, excluding Ontario, was 118% at December 31, 2007 and at the end of 2008 after the investment market meltdown, the ratio was a solid 93%. On a final note, the Ontario situation is not being exaggerated. It should be noted that Ontario used the highest real interest rate to discount its liabilities. If the basis was consistent with other provinces, the Ontario funding ratio would be even lower and the unfunded liability would have been about $12.2 billion at December 31, 2008 instead of $11.5 billion. The use of a 7% interest rate with a 2.5% inflation assumption to create a 4.5% real interest rate is highly questionable. Since 1999 the WSIB has used 4% as the real interest rate while many provinces have moved to lower rates. The use of a 4.5% rate significantly reduces liabilities and underestimates the liabilities relative to generally accepted practice. Segments of organized labour like to refer to Ontario s unfunded liability as a paper tiger. Today, as manufacturing industries suffer badly, some of these segments must have second thoughts about the virtues of financial mismanagement. In 1998, the unfunded liability was projected to be about $2.5 billion by the end of 2008. Thus we have fallen behind by at least $9 billion in the race to run a financially sound system. 7

Section 2 Appendix 1 Funding Status of Canadian Workers Compensation Systems (Values in $ billions) 2008 2007 Assets Liabilities Assets Liabilities Ontario $13.2 $24.7 $16.0 $24.1 Ratio 54% Ratio 66% Rest of Canada Quebec 8.1 11.6 11.2 11.3 Alberta 5.6 5.0 6.7 5.0 British Columbia 11.1 9.6 12.6 9.0 Saskatchewan 1.1 1.1 1.4 1.1 Manitoba 1.0.9 1.1.8 Nova Scotia.9 1.5 1.1 1.5 P.E.I.1.1.1.1 New Brunswick.9 1.1 1.1 1.0 Newfoundland.6.8.8.8 Yukon.1.1.1.1 NWT.3.3.3.2 $29.8 $32.1 $36.5 $31.0 Ratio 93% Ratio 118% 8

Section 2 Appendix 2 W.S.I.B. of Ontario CONSOLIDATED BALANCE SHEET December 31 ($ 000,000 s) 2006 2007 2008 Assets $16,455 $15,972 $13,207 Liabilities Benefit Liabilities 20,300 21,760 22,340 LOR Inc. Fund 919 974 890 Other 1,233 1,332 1,446 22,452 24,066 24,676 Unfunded Liabilities Accumulated Deficiit (8,371) (9,501) (11,917) AOCI 2,374 1,407 448 (5,997) (8,094) 11,469 % Funded 73% 66% 54% Aggregate of Other Canadian Jurisdictions 118% 93% 9

4 Ten Years of Benefit Cost Losses For the past 10 years the WSIB has consistently experienced significant financial losses on the cost of benefits. These annual losses are the excess of benefit costs actually incurred over the costs that were expected to be incurred and priced into the premium rates. The system is intended to be operated on a financial break-even basis. Premium rates, as in any insurance system, are set to cover the capitalised cost of new claims incurred in the upcoming year. What has happened to the Unfunded Liability? The attached table traces the change in unfunded liability on a year by year basis from $7.1 billion in 1998 to $11.5 billion in 2008. The total premium payments against the unfunded liability, after deducting the interest carrying cost on the debt, were $4.9 billion. Thus in very simplistic terms if the system had been run on a break-even basis, the unfunded liability should be in the range of $7.1 billion less $4.9 billion or about $2.2 billion. So why is it over $9 billion higher? Some of the $9 billion loss is not within the true control of the WSIB or government. At year end 2008, investment returns over 10 years were about $1.6 billion below required amounts, but much of this is attributable to the 2008 market meltdown and will be recovered in 2009. In the category of Other Losses about $800 million was added to the liabilities in 1999 to provide for future administrative costs on past claims this is sound and consistent with other provinces. Over 10 years the reduction in income tax rates has increased workers compensation benefits by about $400 million. However, the Board and Government created losses of $870 million through Bills 187 and 221 and the change in policy regarding integration with CPP benefits all of which increased benefits while massive losses were being incurred. 10

The system actually realized about $720 million in gains through inflation being lower than expected. However, the government gave all this back through Bill 187 which provided an indexing increase which was not warranted by inflation. The real problem however, has been that benefit costs on the new Loss of Earnings structure of benefits have totalled about $3.3 billion more than expected and required provisions for future payments on all benefits have increased by about $2.8 billion over expected levels. These losses total about $6 billion. Benefit Losses Total $6 Billion In Ontario, actual benefit costs have exceeded expected costs by $6 billion over the past 10 years. Thus, 50% of the current unfunded liability comes from unintended expenditures on benefits. This serious deterioration in control of benefit costs was noted by the WSIB in its February 2005 meetings on the funding frame work. Further, it has been documented in a joint study done by the Institute for Work and Health and the WSIB in 2008. However, there appears to be no substantial initiative undertaken by the WSIB or the government to address this problem. These types of benefit cost losses have not been experienced by other Canadian workers compensation systems. It is fair to ask why this should be allowed to go unchecked in the Ontario system both the WSIB and the Government have a duty to operate a financially sustainable system and do so at a cost that is acceptable to society. This is not happening. It should be noted that the auto insurance industry together with the Ontario Government are moving to implement some 41 changes to the minimum mandatory accident benefits to curtail and control rising costs from insurance claims. This type of action demonstrates a commitment to provide reasonable mandatory insurance at a fair price. One expects this approach where private sector providers are involved. Why does the WSIB not operate with the same type of focus on sound financial management? Within the $6 billion of losses about $1.4 billion is attributable to health care costs which consistently exceed expected levels. This problem is not unique to workers compensation insurance. But strong action, similar to that taken by the government with auto insurance, is probably the only means of controlling the excessive expenditures on loss of earnings and all types of long term disability benefits. 11

Section 3 Appendix Reconciliation of Unfunded Liability 10 Years (Figures in $millions Losses and (Gains)) Accident Year L.O.E Benefits Change in Benefit Assumptions Investment Return Indexing on Benefits Other Losses Net U.L. Payment Unfunded Liability 1998 $7,098 1999 (16) (669) (408) (69) 1028 (562) 6,402 2000 234 (70) (426) (49) 105 (521) 5,675 2001 77 469 (8) (110) 10 (456) 5,657 2002 65 780 531 10 52 (504) 6,591 2003 165 571 321 (116) - (397) 7,135 2004 400 581 (1208) (82) 109 (515) 6,420 2005 418 537 (365) (51) 33 (482) 6,510 2006 433 676 (1063) (113) 96 (542) 5,997 2007 647 224 1118 (140) 850 (602) 8,094 2008 883 (334) 3087-40 (301) 11,469 Totals $3,306 2,765 1,579 (720) 2,323 (4,882) $11,469 Comments Source is the notes to the Annual Financial Statements Net unfunded Liability Payment is the share of annual premium allocated to the unfunded liability reduced by the interest carrying cost. Other Losses consist of policy changes, legislative changes, the effect of income tax changes. Investment Return the accounting policy change for assets is in 2004 Indexing on Benefits refers to actual benefit indexing for inflation versus the actuarial expected level 12

5 Where Should we be Financially Today? The two most important financial issues for employers are: (i) fair premium rates (ii) elimination of the unfunded liability For the past 10 years employers have successfully responded to the challenge to reduce accident frequency. They had a right, in return, to expect that the WSIB and government would manage the system in a financially responsible manner. This means on a breakeven basis not on a basis that incurs massive annual financial losses. A Line in the Sand At the end of 2004, it was clear from WSIB s own report on the funding framework, that the new Loss of Earnings benefit structure was a failure and health care costs needed to be controlled. Accordingly while it may be unfair to hold the WSIB and government directly accountable for all the $9.2 billion of losses incurred over the past 10 years, at a minimum, the losses incurred since 2004 and the politically motivated indexing gift in 2007 should not have occurred. In simple terms, the unfunded liability should be no greater than the following at December 31, 2008. (millions) Actual Unfunded Liability @ 31.12.2008 $11,469 Remove 2005-08 Benefit & Assumption Losses -4,204 Remove Bill 187 costs -720 $6,545 13

Next there is a solid chance of a $1 billion investment gain in 2009 to reverse a major portion of the investment losses in 2008. The premise here is that while it is fair to expect unknown results from the 1998 legislation, which was well intentioned, when it became known by the end of 2004 that it was not working, action should have been taken by the government and the WSIB to rectify the situation. The auto insurance industry took action with government support why not the WSIB also. Unfunded Liability Eliminated by 2015 The attached table shows how the unfunded liability was capable of being eliminated by 2015 only 1 year later than planned. The premise is that the system should have corrected the benefit problem in 2005 and run benefits on a break-even basis thereafter. In the illustration, the same level of unfunded liability payment as currently exists is maintained. Only a 2% increase in total insurable earnings is assumed each year. Other than the investment gain in 2009, no other gains and losses are assumed. Premium Rates The premise on premium rates is that if the system had been run properly, at least since 2004 at a minimum, the average claim cost would not have escalated so dramatically. Once again employers did their part by reducing accidents. From 2004 to 2009, the average claim cost has increased from $14,356 to $26,052 or by a staggering 81% when the increase in average insurable earnings has been only 11%. Some of the increase in claim cost, namely health care, is not wage related but the rest is wage related and should track wage increases. Even a 5% increase per year in average claim cost would be understandable but this leaves the Ontario average claim cost a further 40% higher than it should be. The average claim cost assuming some action had been taken to control costs in 2005 should be in the range of $18,000 19,000 today, not $26,052. This would place the Cost of New Injuries component in the premium rates at slightly less than $.80. The resulting total premium rate is close to $2.00. Actual Hypothetical Cost of New Injuries $1.046 $.800 Administration.413.413 U.L. and losses.798.798 2.26 2.01 14

Summary If the system was run on a financially responsible basis, premium rates could be lower and the unfunded liability had a good chance of being liquidated by 2015. Hypothetical Elimination of Unfunded Liability By December 31, 2015 Interest U.L. Payment Gain U.L. 2008 $6,545 2009 460 1,000 1,000 5,005 2010 350 1,020-4,335 2011 305 1,040-3,600 2012 250 1,060-2,790 2013 195 1,080-1,905 2014 135 1,100-940 2015 65 1,005 - - Assumptions U.L. payment net of bad debts and experience rating net refunds is $1 billion in 2009 Insurable earnings of $150 billion in 2008 grow by 2% per year No change in U.L. component of premium rate = $.80 Investment gain of $1 billion in 2009 No other gains and losses from 2009 2015 Interest carrying cost = 7% Values in millions of dollars UL 1 = UL 0 + interest U.L. Payment Investment Gain The unfunded liability grows with interest and is reduced by the unfunded liability payment and the investment gain. 15

6 Competitive Comparisons Competitive comparisons of premium rates with other provincial jurisdictions can be difficult and often misleading; notwithstanding the fact that premium rates paid by employers are the obvious basic cost element in the business financial equation. The legislated benefits are reasonably comparable between the provinces. The wide range of insured wages ceiling is one element that can impact the average claim costs however, and also total premiums paid. However, a comparison of wage ceilings and average claim costs between Ontario, Quebec, Alberta and B.C. does not lead to the conclusion that higher claim costs in Ontario are linked to a higher wage ceiling. Each province has a different mix of industries so the aggregate or composite average premium rate of each province is not a good comparative measure of the cost of workers compensation between provinces. Comparing individual industry sectors is better however provinces tend to group industries into sectors slightly differently. Finally, experience rating will impact results differently between provinces at the individual employer level. In provinces, other than Ontario, the premium rate represents the cost of insurance being incurred each year. There is no systemic transfer of cost from one generation to another in the premium rate structure. If you start a business in Ontario, you know you are paying 60% more than the cost of insurance to cover previous mismanagement. Also, you know that the Ontario system continues to run annual losses so this financial mess will continue indefinitely. Any businessman knows that being involved with a mismanaged insurance system will have negative consequences for his own business it may appear as incompetent management of claims, abuse of the system, bureaucratic penalty charges, a lack of understanding of business practices, inconsistent treatment of workers, time consuming administration, etc. From a competitive view point, employers want to deal with competent, financially viable, dependent suppliers. These are the bases for comparing systems comparing premium rates alone can be misleading. 16

Despite these limitations on comparing provincial premium rates, it is instructive to compare rates for industry sectors. For this purpose, Ontario, Alberta, British Columbia and Quebec have been selected. Using the data for 2009 from the AWCBC premium rates by industry classes, some selected rates are: Industry Ontario Alberta B.C. Quebec Pulp & Paper $2.39 $.72 $1.46 $2.26 Underground Mining 6.11 2.15 6.32 9.25 Manufacturing plastic 2.89 1.98 2.00 3.68 metal 4.51 2.20 3.78 5.00 6.00 autos 2.93 2.20 1.14 1.33 concrete 5.19 4.26 5.00 6.85 Transportation general trucking 5.79 3.81 4.89 7.15 Construction Retail residential 8.71 2.05 4.03 various commercial 4.35 2.02 3.67 various supermarkets 2.43 1.83.93 2.69 department stores 1.40 1.11 1.09 2.40 In general rates in Ontario are higher than Alberta and B.C., but similar to or lower than Quebec, Certainly the Ontario rates would be competitive everywhere without the unfunded liability component. 17