Interim Board Policies - How are they working?

Well the short answer is that they are not.  The new policies have lead to an influx of appeals, even more  unrealistic plans being developed and in my humble view more frustrated injured workers and that frustration leads to more anxiety and depression.  The Board's current mindset that the employer can and must find something for injured workers is causing strain on employers as well. I was recently told of a situation where the majority of the workforce is currently laid off and the company is working on skeleton staff (down from 400 to 30 people in the plant) but yet  return to work meetings continue to be scheduled.   Really how many return to work meetings are required with an employer before the WSIB gets the message that there is no modified work available. The amount of money being spent is ridiculous and to what end.

There really are workers who are not able to return to work and may never return.  The WSIB hires people to conduct medical assessments, psychovocational assessments and functional abilities assessments.  Maybe its time to look at these opinions and use them in making determinations. What does the WSIB know that these professionals don't? 

The WSIB is not obligated to retrain each and every injured worker but they must and have an obligation under the Workplace Safety and Insurance Act to provide the skills necessary to approximate the workers preinjury earnings.  So if a worker was making $30.00 per hour an effort should be made to find a course of study that will afford the worker the opportunity to make this money once again despite the injury.  Does a Philosophy program at University do this? Probably not.  But a Social Work degree may. But in determining the suitablility of the program, the psychovocational reports should be closely examined.  Someone suffering from Post traumatic stress disorder or who is dealing with their own personal conflicts may not be suited to this profession, nor, would someone who is anti social.

The same holds true of those being trained, and I use the term loosely, for customer service. The physcial demands of the job must be looked at closely and again the person's psychovocational make up.  There are alot of jobs classified as customer service which truely are more appropriately classified as retail sales. So, again if the person cannot stand for prolonged periods of time, do not like working with people, are not fashion conscious how are they going to find work in  the "mall" setting?

The question the WSIB must look at when choosing the Suitable Occupation and have failed to do so is whether there is a reasonable prospect that the person would be hired in the local labour market.  No this does not mean that because my law office is open for business that I am hiring and therefore there is a reasonable prospect of obtaining a job as a paralegal in my office.  The Board must look at availablility in the local labour market, the worker's compensable limitations and other non compesable factors, including age, IQ, education, ability to read, write and speak English, their past job history, transferrable skills, ability to interact with people, ability to use a computer and their non compensable problems.  Yes, this means looking at the whole person to determine if they are able to return to the workforce and start looking and taking the opinion of the professionals they hire. 

After 23 years of practicing workers compensation law, I've seen many changes to the WSIB system but the current  practices have left much to be desired and require a careful review of the purpose of the legislation, the costs and the results including the impact of the service delivery model on the workplace parties.

   

WSIB - Non Cooperation Penalties

 Effective December 1, 2010, five interim WSIB Work Reintegration policies have been implemented.  One of the most important to workers is WSIB Board Policy 19-02-02.  This policy sets out the cooperation obligations and penalties for the workplace parties during the return to work / work transition (WT) processes. If either or both parties refuse to cooperate, the WSIB may reduce or suspend the worker’s benefits, and / or levy a penalty on the employer. The WSIB will need to be convinced, on a balance of probabilities, that a workplace party knew of his / her obligation, had the ability to carry that obligation out, and failed to do so, in order for a non-cooperation penalty to be applied


The WSIB non-cooperation policy states:
The WSIB reduces the worker’s wage loss benefits by 50% from the date the written notice comes into effect until the 14th calendar day following that date, or until the worker starts co-operating again, whichever is earlier.If the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB suspends the worker’s wage loss benefits.
For WT (work transition) activities, if the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB reduces the worker’s wage loss benefits to reflect the earnings of an experienced worker in the suitable occupation. The WT assessment and/or the WT plan may also be terminated.
 
These are not entry level wages but that of a fully experienced worker which will likely mean that no loss of earnings will be paid in the majority of cases. For example if a worker is being trained as a paralegal and fails to cooperate the workers benefits will be reduced to reflect the earnings of a fully experienced paralegal with is approximately $32.00 per hour.  So if the worker originally earned $18 per hour there would be no benefits paid by the Board.
 
The Wage loss benefits remain suspended until the date the worker starts co-operating again, at which point the WSIB stops the non-co-operation penalty and restores wage loss benefits. Wage loss benefits are restored on the day following the day that the WSIB is satisfied of the worker’s "renewed co-operation."
 
The use of the word "suspension" is significant.  Under section 66 of the Workplace Safety and Insurance Act, RSO 1997, c. 16. Sched A, if payments are suspended under the insurance plan, no compensation is payable in respect of the period of suspension.
For employers, the WSIB will levy an “initial penalty” of 50% of the cost of the worker’s loss of earnings (LOE) benefits from the date the written notice comes into effect (which is seven WSIB business days after the date of the WSIB’s written notice) until the 14th calendar day following that date, or until the employer starts cooperating again – whichever is earlier. If the employer’s non-cooperation continues beyond that 14th calendar day, the WSIB will levy a “full penalty” which is equal to 100% of the cost of the worker’s LOE, plus 100% of any costs associated with providing WT services to the worker.


I caution workers to meet with their employers, attempt to identify suitable work and if in an LMR continue to attend school.  It is very important to cooperate under these new policies.  It is too early to see how aggressively the Board will be applying these penalties and how far they will go to "force" employers to take workers back to work.  We have been that retraining is a last resort how these policies will play out remains to be seen.  In the interim cooperate so that your benefits are not jeopardized.

Migrant Workers and WSIB

A recent article  appeared in the Toronto Star on October 8, 2010, written by David Gouter, Assistant Professor in the School of Labour Studies at McMaster University, and Chris Ramsaroop, organizer with Justicia for Migrant Workers, that I must take offense to.  They noted in the article quite incorrectly that there is a massive power imbalance built into temporary foreign worker programs which contribute to unsafe and unfair working conditions.  This is with all due respect is a incorrect assessment based on a lack of knowledge or experience of ever working on a farm or doing an ounce of manual labour in their life.  Firstly, these workers are subject to WSIB coverage from the moment they step foot onto a plane in their home country until they return home. They are covered at church in the grocery store or when they go out to visit other workers off the farm premises.  Who in Ontario has this type of coverage as a worker?  No one! 

The work is difficult but without migrant workers you would not have food on your table, since the work seems to be too difficult for our Ontario workers.  They can be sent home  and terminated just like any other worker in this province when they are under performing or there is a lack of work.  The housing is inspected prior to the worker's arrival to ensure that it meets current standards and overcrowding is not permitted.

As an employer of these migrant workers, I invite and challenge these scholars to do their homework.  There are always a few bad apples, but the majority of migrant workers are happy with their conditions and apply to return year after year to the same employer.  To stage a "Pilgrimage to Freedom for Migrant Workers" who willingly come to Canada to work and come for the sole purpose of making money, seems a bit ridiculous, doesn't it?

WSIAT Reconsiderations- Decision 527/08

Under the Workplace Safety and Insurance Act the Appeal Tribunal's decisions are to be considered final.  However, under section 129 of the Act the Tribunal may reconsider its decision"at any time if it considers it advisable to do so".  The Tribunal has applied a high standard of review when asked to reconsider a decision.  It must be shown that there is a significant defect in the process or content of the decision, which if corrected, would lead to a change in the result of the decision. It is not enough to disagree with the decision.  The Tribunal carefully weighs the need for finality in the appeal process and the prejudice to other parties.

As noted on the Tribunal website  www.wsiat.on.ca/english/appeal/reconsiderations.htm , the power to reconsider is discretionary. The Tribunal might decide that there is a good legal reason to reconsider a decision when:

"•significant new evidence is discovered which was not available at the original hearing and which would likely have changed the outcome

•the decision overlooks an important piece of evidence (as opposed to rejecting the evidence or distinguishing it)

•the decision contains a clear error of law (for example, the decision does not apply the relevant sections of the Workplace Safety and Insurance Act)

•the decision contains a jurisdictional error (for example, the Tribunal decided an issue which it did not have the legal authority to decide). "

The power to reconsider decisions and the threshold test was considered by Vice-Chair Dee in Decision 527/09R.  The worker argued that the Tribunal decision failed to consider the worker's testimony.  This was rejected by Vice Chair Dee.  The Tribunal simply did not accept the oral evidence of the worker due to numerous inconsistencies.   However, it was found that the prior decision was based on two significant errors of fact.  The Tribunal made its decision on the basis that the worker failed to provide the WSIB with the names of co-workers whom he claimed were witnesses to his ongoing complaints between the initial injury and a recurrence.  However, Vice Chair Dee found that there was documentation in the case record that the worker did provide the with the names of witnesses on a number of occasions, as well as in the reporting of the recurrence.

In addition the Tribunal concluded that the worker was not performing modified work at the time of the recurrence.  Vice Chair Dee noted that the Tribunal did so without considering highly relevant information that might lead to a different conclusion, namely, an incident report from the employer that corroborated the worker's modified work duties. 

These two errors were noted to be significant and that a reconsideration was in order.  This decision highlights the high threshold that an applicant must meet for his or her application for reconsideration to be successful.  It is necessary to show that there is a significant defect in order to be successful on reconsiderations.  It is not merely a disagreement with the result or a rehearing of the evidence.