Friday, November 24, 2006

Worker Granted Relief where Representative Fails to File WSIB Appeal within Time Limits

If you have been left high and dry by some unsavory representative and you have missed your limitation periods there have been recent developments at the Tribunal which may benefit you.

The Tribunal has allowed a reconsideration of a decision that denied the worker’s request for a time limit extension to appeal an ARO decision. The reconsideration was granted largely because of the egregious conduct of his former representatives, both of whom were fee-for-service consultants.

The second representative took 18 months to make the application for a time limit extension to the Tribunal. The Tribunal denied thsi request on the basis that poor representation is not a ground on its own to grant a time extension unless there were some other exceptional circumstances. The worker had not acted diligently in pursuing the matter, given that the time limit extension request was dated March 16, 2001 and the expired time limit was December 29, 1998.

The worker retained a lawyer and asked for a reconsideration of this decision based on an affidavit of his intent to appeal from the ARO decision within the 6 month time limit. This new evidence was found credible and a new hearing was ordered.

Based on the new information presented the Tribunal concluded that the first representative had actively misrepresented to the worker and the second representative had failed to implement the worker’s instruction to file a time extension application in a timely manner, either through her negligence or her misunderstanding.

This approach is consistent with other Tribunal decisions that found “that where a representative through active misrepresentation or some other misleading conduct has actually thwarted a worker’s efforts to pursue his or her appeal, the worker’s request for a time extension should be granted” So long as the worker acted diligently “in the context of what could be reasonably expected of an unsophisticated person with a limited education, limited understanding of the appeals process and very little ability to communicate in the English language” a extension should be given. In addition, the employer's interest must be examined and whether they would be prejudiced if the time extension were allowed. As well, the Tribunal looks at whether the case is so old that it cannot be adjudicated on its merits. Where these criteria have been met then an extension of time has been granted.

If you are in this situation be sure to contact a lawyer.

Thursday, November 23, 2006

WSIB and Mandatory Retirement

As of December 12, 2006 Ontario workers will not longer be required to retire at the age of 65.

So what impact will this have on Workplace Safety and Insurance Law Benefits or Workers Compensation? Unfortunately none!

The Board is exempt from the changes to the Human Rights code so if you are working and are older that 65 you will only be entitled to a maximum of 2 years of loss time benefits. For more details check out the Workplace Safety and Insurance Board's website at: . With an ever aging workforce this is entirely unfair and I would suggest unconstitutional. What is the difference if a 20 year old is injured or a 67 year old. Both are losing income. Both should be adequately compensated for their losses. People are working more and more later in life and surely they are entitled to equal coverage.

In this writer's opinion a constitutional challenge is awaiting these provisions.

Friday, October 06, 2006

Fair Practices Commission Annual Report Released

The Fair Practices Commission’s Annual Report for 2005-2006 has recently been released. The Commission has received 3,000 complaints in the two and a half years it has been operating. The Commission handles complaints individually, but looks for systemic issues to bring forward to the WSIB. The Commission is independent from the WSIB, with the commissioner reporting directly to the WSIB’s board of directors through the WSIB’s chair.

The report noted a number of systemic issues currently being addressed by the Commission with the WSIB We’ve highlighted some of the ones we think are more important to you . These are:

Managing Mail – mail and faxes were not being delivered to managers (and therefore not being acted on) and mail and faxes were lost and not scanned to file.

Standards for Specialist and Advisory Services – delays in initiating internal referrals to investigators, ergonomists and return-to-work mediators which, in turn, result in delays in adjudication.

Step-by-step Adjudication – delays in decision-making resulting from making referrals needed to make the decision in a step-by-step manner. For example, rather than initiating a referral to an investigator, an ergonomist and a medical consultant at the same time, the adjudicator does them one at a time and waits for the results from each specialist before making the referral to the next. This can cause unnecessary delays in the adjudication of the claim.

Expense Payment Processing – many workers complained to the Commission about delays in reimbursement for health care and travel expenses.

The Commission received 1,633 complaints for the reporting period April 1, 2005 to March 31, 2006. Workers accounted for 81% of the complaints. Employers and their representatives accounted for 5% of the complaints made and the remaining 5% came from various sources including WSIB staff who are injured workers, service providers, the commission’s own motion, anonymous, and other. A third of complaints were about adjudication and almost half were about benefits.

If you are experiencing delays or other systemic difficulties consider filing a complaint.

Monday, September 18, 2006

Workers Compensation New Developments in Recurrences

Good news for those who have not appealed in time and have suffered a recurrence of an injury. The worker in this case had received a decision from the Board which allowed his recurrence. Like most workers, he did not realize the legal implication and more importantly the monetary implications of this decision. His orginal injury occurred in 1990 and he was making $10.00/hour. When he was reinjured he was earning $18.00/hour. The Board used the 1990 earnings to calculate his future benefits economic benefits. When he realized this, he appealed this decision.

Several years later the worker asked that the Board to review the circumstances of whether this reinjury was a new accident or a recurrence. If it was classified as a new accident the worker would be paid his most recent earnings, the $18.00/hour. The Board stated that he was out of time to appeal.

The Workplace Safety and Insurance Tribunal recently allowed the worker to proceed forward with the appeal on the question of whether the reinjury was a new accident or recurrence. They allowed an extension of time limits, stating that the refusal to hear a worker's appeal could result in a substantial miscarriage of justice. They further indicated: " There is a real possibility that such earnings basis appeals by necessary implication involve an assessment of the worker's injury, whether cuased by recurrence of new accident" The worker did not likely understand the ramifications of the recurrence discussion on his Future Economic Loss supplement and as such hid not have substantive notice. He did act diligently once he saw aware of the real issue. Also, there was no adequate assessment on file with reference to policy regarding the worker's recurrence and as such one could accept no real decision was made."

This case has opened the door for those who have missed their time limits and are currently being paid something other than the most recent earnings following a work injury.

Friday, May 05, 2006

WSIB 's Non Economic Loss Awards: Is it adequate compensation?

A non economic loss award is suppose to compensate an Ontario injured worker for the pain, suffering and loss of quality of life caused by a permanent impairment. In order to receive a non economic loss award an injured worker in Ontario must suffer a permanent impairment which has a specific definition in the Workplace Safety and Insurance Act. A permanent impairment includes any physical abnormality, functional abnormality, disfigurement or psychological damage arising from the abnormality.

A physical abnormality could include the amputation of a limb. A functional abnormality deals with the loss of mobility or the inability to do things such as lifting, sitting, standing, twisting, bending etc. A disfigurement includes damage which causes significant scarring or alters the shape of a person’s face. It could damage caused by burns. Psychological damage includes depression or phobias that result from an injury.

The non- economic loss process is quite simple. Once the Workplace Safety and Insurance Board determines that you have reached Medical Maximal Recovery, that is, your condition has stabilized and not expected to get any better, the Workplace Safety and Insurance Board will determine whether or not you suffer from a permanent impairment. If the answer is yes the WSIB will send you a roster of doctors who have agreed to assess your type of condition. You must choose a doctor from this list within 30 days. You cannot choose a doctor who has previously treated you or a member of your family. If you do not choose a doctor within 30 days the WSIB will pick one for you.

Once a doctor is chosen the Workplace Safety and Insurance Board then arranges an appointment and sends you a letter telling you the date time and place of the appointment. At the appointment the doctor performs an examination. If you suffer from a physical or functional abnormality, the assessment involves measuring various angles using a special ruler. Once the WSIB receives the doctor’s report these measurements are inserted into various charts to determine the percentage of your impairment to the entire body. For example if a person amputates their entire arm the maximum percentage awarded is 27%.

The amount of your cheque is calculated as follows:
Start with the base figure of $52,156.66 for 2004. To this amount either add $1159.43 for every year you were under age 45 at the time you were injured or deduct this amount for every year you were over the age of 45 to a maximum of $75,336.07. Multiply this figure by the percentage granted by the Board.

The entire process takes approximately 6 months. If, after the assessment, you disagree with the percentage granted you can appeal the decision. If your condition worsens in the future you can ask for a re-determination. However you must wait 12 months from the original assessment and provide medical evidence that your condition has worsened.

Does the system properly compensate Ontario injured workers? No, not at all. The system is based an outdated "meat chart" created by the American Medical Association in 1990. It does not take into account the impact that an injury has on a worker - the loss of enjoyment of activities, relationships and day to day activities let alone the level of pain a worker may experience. Can something be done about it? Voice your concerns to your Members of Provincial Parliament.

Monday, February 13, 2006



Suzanne Dajczak

New Return to Work Policies

The Workplace Safety and Insurance Board has released the draft policies with regard to the new return to work program. While the law has not changed, the Board’s interpretation of what is suitable modified work has been revised, expanded and hopefully clarified.

When Bill 99 was introduced the legislation clearly stated that both the worker and the employer had a duty to cooperate in an early and safe return to work. As a worker you were expected to contact the employer as soon as possible after the injury occurred, maintain communication throughout your recovery and impairment, and provide medical information as requested in the form of a Functional Abilities Form

Often times, employers brought workers back to work too soon in order to meet their obligation of an early return to work. When the Board introduced the changes in Bill 99, they made it very clear to the employer community that if they did not bring workers back quickly then there would be huge cost implications for them.

The Workplace Safety and Insurance Board has now recognized that returning to work too quickly is not appropriate and has tried to balance the worker’s interest and the employer’s costs. In describing suitable work they have introduced 4 new concepts- safe, productive, remunerated and sustainable. In the short term the work only has to be safe. But for longer term placements all four criteria must be met.

Interestingly while productivity is addressed the Board has not re-introduced the concept of meaningful work. The job merely has to add value to the employer but not meaningful to the worker.

The Board has also introduced the concept of timely. Which states that it does not mean immediate return to work but rather has emphasized the appropriateness of the return to work given the nature of the claim, patterns of recovery (not your personal recovery but the general population) and the ability to provide suitable work.

The other major change is in the Board’s role. When Bill 99, a model of self reliance, was introduced, you as an injured worker and your employer were to find a solution independently of the Board. Now the Board will take on a more active role in monitoring return to work programs.

While the proposed changes are intended to assist by clarifying the policy, there is still a lot of room for interpretation of the new concepts and what is in fact suitable work. It is likely that there will be more appeals by both workers and employers until it is clear what this new policy really means.