Return to Work - Who's Right my Doctor or the Board?

Workers are often faced with the difficult task of deciding what to do when the Board threatens to cut off benefits if they do not return to work or school and yet their doctor writes a note to stay off work. This is a common situation. The answer it not always easy and depends on the facts of each individual case. What worked for your friends may not work for you. But here are some things to keep in mind.

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  The Board uses the Functional Abilities Form to assist in determining whether you can return to work or school. They will not accept a doctor’s note that states: Mr. X is to remain off work. Pain is expected to be controlled through pain management methods and doctor-prescribed medications. The Board's view is that it may hurt because you are not used to the work but if it isn't harming you it is suitable. Hence, if the work appears to be within your functional abilities it is suitable.

• Your functional abilities must be assessed by a trained professional and accurately reported on a Functional Abilities Form. When you bring it to your health care provider for completion, fully discuss your problems and how the injury limits your activities around the house including any lifting, reaching, bending, standing, walking, sitting, twisting, crouching, sleeping, and driving. Discuss with your health care provider any changes you have had to make to make things easier for yourself like rearranging where things are stored to make it easier to reach them or modifications to your home to assist you in moving around safely. The form can be completed by your family doctor, chiropractor or physiotherapist. Do not over medicate yourself for your assessment as this will not provide an accurate assessment of your functional abilities.

• Try the work. If you don't try, you will not know if the work is suitable or not. This is the first question usually asked by an appeals resolution officer at an appeal hearing. Furthermore, absence of an honest effort can easily be perceived the Board as non-cooperation.

• If you try the job and you cannot perform the work without and increase in pain or other symptoms then report the problems to your employer. Ask if there is other work available. Make suggestions about changes that could help you perform the work with less pain. Keep track of who you spoke to what was discussed and when.

• Report any problems to your health care provider. Bring the job description with you or accurately describe the job so there is no confusion about what the job entails when discussing it with your health care provider. Discuss possible modifications to the work. If your health care provider decides that the job is not suitable, obtain written reasons why they are of this opinion. Objective medical evidence should be provided to show how you are worse and how the job is not safe and exposes you to further injury. Remember it is not your opinion but the health care professional's opinion that should be documented.

• Request a return to work mediation to try to resolve the problem with your employer using this process. Think of other jobs that may be lighter and therefore not as taxing on your injury. Offer to work on a graduated basis, starting at a few hours per day and gradually increasing your duties so that you can build up your strength. Anyone who has not been to work for several months would find it tiring to work an 8 hour day. Ask to begin working a few half-days a week, gradually building up to an 8 hour day.

• Request an ergonomist come out to assess the workstation and job duties. They can often offer suggestions on how to make the job safer and recommend you be taken out of a job that is not suitable for your injury.

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  If pain or depression/anxiety is a serious barrier then ask the nurse case manager for pain management or a referral to a psychologist to help you cope and eventually return to work.

• Be realistic with a return to work program. You do not want to become re-injured, but unless you are totally disabled, you have abilities.
  

There are many factors that determine what you should do if faced with a return-to-work situation that you do not feel that you are ready for. If you are having difficulties obtain legal advice before making a decision. If the Board determines that you are non-cooperative, not only will your benefits be cut off, but the strength of your appeal may be negatively impacted.

Bill 119 brings Mandatory Registration to Construction Workers

For many years the Workplace Safety and Insurance Board has talked about making coverage mandatory for all independent operators in the construction industry. Problems related to identifying who is truly an independent operator has plagued the Board for many years and many appeals have been heard before the Tribunal on this issue. The question of whether a construction worker was working for himself or someone else required the completion of various forms and disclosure of what some individuals considered confidential information including lists of competitors and financial statements. Other individuals were being injured only to find out that there was no coverage.

A determination that an individual was an independent operator has also meant a loss of income for the Board. These individuals did not have to pay premiums nor did the companies for which they provided services.

The Ontario Legislature has passed Bill 119 that will extend mandatory coverage to independent operators, sole proprietors, some partners in a partnership and some executive officers in the construction industry. While the Bill has passed, the law is not expected to come into effect until 2012. Those in the construction industry will not be required to be registered until the Act comes into effect.

The WSIB is now working on developing the policies, systems and administrative processes to support the implementation of this legislation. Those in the construction industry should check the Act to see how they will be impacted and check the Board's website for updates on registration requirements.

NEL Program Redesigned

Many workers have by now experienced the changes to the Non Economic Loss (NEL) system. In the past, workers were sent a roster of doctors to choose from for their assessment. A physical examination was required in every case.

As of July 2, 2008 , a NEL Clinical Specialist will review the information contained in your file such as functional abilities evaluations, medical, chiropractic, and physiotherapy reports to determine if there is sufficient information to rate your NEL benefit. If the information is complete, that is provides Range of Motion information after your date of maximal medical recovery, your NEL Benefit will be rated based on the information in your file. You will receive a letter explaining the decision, as well as the payment.

If an examination is required, the Workplace Safety and Insurance Board will either refer you to a Regional Evaluation Center to have your assessment done or send you a list of doctors specially trained to assess your type of injury or disease. Generally 3 or 4 names are provided as opposed to the pages of doctors names previously given. In either case, you choose which doctor will examine you from those names supplied to you.

The WSIB will reimburse you for travel expenses and any lost wages that result from attending the examination.

After the examination, the doctor will send the WSIB a medical report. This report, as well as the medical information on you claim file will be reviewed to calculate your NEL benefit. You and your employer will each receive a copy of the doctor’s report as well as a letter to explain how the benefit was calculated.

You will also receive the option of receiving the monies as a lump sum but must make this request in writing within 35 days of receiving the decision letter from the Board.

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New Service Delivery Model

It's not only been a busy few months for us at the office but also at WSIB. The Board has introduced a new service model which impacts the way in which claims are processed.

The Board has stated: "Profound emotional, physical and economic losses are experienced when injured or ill workers have not yet returned to work and recovery. These losses are felt in the home, at the workplace, and throughout the community. Everyone benefits when workers return to work and recover as quickly as possible. " The focus of the new system is return to work and the model has been released at the same time as the new return to work policies which we have been anticipating for a number of years.

Through the life of a claim workers will come in contact with not just one adjudicator but several. When an accident first happens an Eligibility Adjudicator will determine your eligibility to benefits. This adjudicator will primarily investigate the claim and determine initial entitlement following an accident.

If the claim results in a longer term recovery the file will be transferred to a Case Manager who makes decisions about ongoing benefits to be paid, reviews the opportunities and obstacles to return to work, arranges and monitors Labour Market Re-entry services and makes decisions concerning permanent unemployability.


The Case Manager will work with the Return to Work Specialist who facilitates return to work and case resolution at the workplace. The Return to Work Specialist assists the parties in identifying suitable and available employment in the workplace in order to fulfil the worker's and employer's obligation to cooperate in an early and safe return to work.

The Nurse Case Manager's Role has been expanded and is now called a Nurse Consultant. The Nurse Consultant coordinates specific medical interventions and assists in resolving health care barriers and improving wait times to services required. This person also decides what health care services and benefits are allowable.

The Disability Prevention Specialist assists employers (in-house as needed) to build new or improved prevention, disability management and compliance programs and practices for their entire workplace. The position is part of the Board's mandate to have zero accidents.

The new delivery model was launched in Ottawa and Toronto this past fall. The Windsor office is set to change to the new model in February, 2009 and the transition process for the other regional offices is to be completed by mid 2009.

This new system means that there will likely be a change in adjudicators for many workers in the coming months.

Overnight Shift Work Identified as "Probable Carcinogen"

The International Agency for Research on Cancer (IARC), a part of the World Health Organization has evaluated more than 900 agents since 1973, of which approximately 400 have been identified as carcinogenic or potentially carcinogenic to humans. After a thorough review of scientic evidence and expert working group with IARC has concluded that shiftwork that involves circadian disruption is probably carcinogenic to humans.


Medical research studies have found that long-term night workers have a higher risk of breast cancer than women who do not work at night. The studies show that constant light, dim light at night or simulated chronic jet lag can substantially increase tumour development. Other studies show that reducing melatonin levels at night increases the incidence or growth of tumours.


The agency noted that these study results may be explained by the disruption of the circadian system that is caused by exposure to light at night. This can alter sleep-activity patterns, suppress melatonin production and disregulate genes involved in tumour development. The noted that the most disruptive shiftwork is nightwork.


This classification will be of importance to healthcare and automotive workers among others who work midnights in our city and province.



The IARC website is an extremely useful website when it comes to identifying cancer causing agents and can be found at http://www.iarc.fr/ENG/Databases/index.php.

Do I have to attend an employer requested health exam

If you are receiving benefits from the Workplace Safety and Insurance Board, your employer may ask you to attend to a health examination with a doctor chosen and paid for by the employer. You are not required to attend this appointment until ordered to do so by WSIB. Although, you may wish to consider how not attending will impact on your relationship with your employer. I often advise clients that you have nothing to hide and in fact the independent medical may actually assist your claim.

If you decide however that you do not want to attend the employer requested health examination, you must tell your employer that you object to the examination. I recommend that you do this in writing and carbon copy the Board. After receiving your objection, the employer has 14 days to write and request that the WSIB order you to attend the examination.

This is not automatically done by the Board. The employer must show that the examination is necessary and it will:

• help with your early and safe return to work


• provide significant new information not already available in your claim file


• help clarify any disagreements in the medical opinions of doctors,


• help better understand the nature of your injury

The Board will not approve an independent medical examination if the employer is sending you for an opinion merely because they disagree with the current medical opinions. All medical examinations are limited to the work related injury.

Loss of Retirement Income Benefit Changes

The Workplace Safety and Insurance Board sets aside funds to replace a worker's lost retirement income if a worker has received loss of earnings (LOE) payments for 12 continuous months. The funds equal 5% of the amount of every subsequent LOE payment. You can also contribute an additional 5% of your benefits to the fund.

When you reach the age of 65, you are to receive the Loss of Retirement Income (LRI) benefit. The amount of the LRI benefit is the sum of the mandatory contributions, the voluntary contributions and the accumulated investment income.

The Board has increased the monetary threshold of when they pay a lump sum amount. If the Loss of Retirement Benefit equals a payment amount of less than $3000 per year, your benefit will be paid as a lump sum. If the amount of the benefit is more than $3000 per year you cannot take the money out as a lump sum. You will be given a choice of 3 payment schemes and different investment options. You should carefully consider the consequences of the choices and their impact on your estate.

WSIB Required to Provide Explanation of Benefits Calculations

IAVGO made a complaint to the Fair Practices Commission regarding the Board's lack of co-operation in providing an explanation of benefits calculations, particularly in complex retroactive awards. Many worker representatives have battled with the Board over the years, trying to get individual claims adjudicators to provide an explanation for benefits in cases where the injured worker received retroactive benefits on appeal. As a result of the Fair Practices Commission's intervention, a protocol has been established within the Board for dealing with such explanations.
In a letter dated January 31, 2008 to Judy Kondrat of IAVGO, Fair Practices Specialist Janice Sandomirsky outlined the following:

" Claims Adjudicators have been reminded that they are expected to be proactive in providing payment explanations in all cases. All verbal payment explanations are to be followed up in writing. A detailed written explanation should always be provided in cases involving a complex payment. Examples of complex payments include:

• Retroactive payments


• Reviews/adjustments of benefit payments


• Minimum or maximum benefit payments


• Partial benefit payments


• Recalculations of average earnings


• CPP/QPP offsets

The written explanation will identify the type of benefit included in the payment(e.g. loss of earnings, interest, arrears, diversion for assignments, court orders), the average earnings basis and the payment period of each benefit paid.

Where there is a request for clarification of the benefit payment calculation, the Claims Adjudicator is expected to contact the Payment Specialist who will place a memo on the file outlining the calculation of the benefit payment in question. It is anticipated that the Claims Adjudicator will respond to the clarification request within three days. In exceptional cases, such as pre-1990 or non-imaged claims, it may take up to two weeks for the Payment Specialist to produce the memo. The Claims Adjudicator will advise the requester in writing about the delay and provide a time frame for a response.

If there are questions that require additional assistance/clarification, the Claims Adjudicator is expected to obtain guidance from his/her Manager, and , if necessary, the Payment Specialist Manager. "

The complex payment review also involved the creation of documents on payment terms and definitions, some sample letters, suggested payment criteria paragraphs, effective writing tips, plain language advice, grammar and spelling tips, and clear language reference tools.

This article has been reproduced with permission from Judy Kondrat of the Industrial Accident Victim's Group of Ontario (IAVGO). Kudos go out to Judy and IAVGO for their great work!

ODSP and Interest on Payments for Pain and Suffering

A recent case the Ontario Superior Court of Justice held that damages or compensation for pain and suffering including interest is considered to be exempt income for the purpose of calculating a person's entitlement to disability benefits.

The case is Mule v. Ontario Disability Support Program 88 O.R. (3d) 326. ODSP initially decided that the part of the settlement representing prejudgement interest did not constitute "damages or compensation for pain and suffering as a result of injury" and therefore it was to be included in applicant's income in their application for disability benefits. The applicant appealed this decision. In making their decision the court looked at the meaning of the word "for".

They stated that the most appropriate meaning to give to the word"for" in this context was "having a reason or cause". The court indicated that the interest was dependent on the entitlement to damages. The interest paid could not exist independently it formed part and parcel of the award for damages or compensation. Therefore, the interest was to be exempted from income.

This case is also relevant in the WSIB context. It applies to those individuals who are receiving ODSP benefits and who receive a non economic loss award together with interest.

Help for your return to work

If you, as a worker, are concerned that the modified work offered is not consistent with your functional abilities you can request an ergonomic assessment to see if the work is in fact suitable. An ergonomist is someone who has studied human capabilities in relationship to work demands. Information derived from ergonomists contributes to the design and evaluation of tasks, jobs, products, environments and systems in order to make them compatible with the needs, abilities and limitations of people. They examine the workplace with the goal of reducing worker fatigue, discomfort and injury.



An ergonomist will be able to objectively assess the proposed working conditions and determine if they are consistent with the your restrictions and relay their findings and recommendations to you, as the worker, the employer and the WSIB . It is important for you to be present with a representative at the assessment, so that the ergonomist can view how you, not a co-worker, performs the tasks. Having a representative present allows you to voice your concerns or correct any misinformation provided. Factors such as posture and stature can be very relevant to the final recommendations.



An ergonomic assessment can be particularly helpful in cases where the relationship between the worker and employer have become strained, creating difficulties in the return to work process.

Canada Pension Disability Changes

One of the requirements to qualify for Canada Pension disability benefits is to have made enough contributions into the plan while you were working. You need to have made enough contributions in at least 4 of the last 6 years.

Canada Pension Plan recently introduced a change to this rule that will benefit individuals who made contributions for more than 25 years. Applicants with 25 or more years of contributions into the plan now only need to have made contributions in 3 of the last 6 years. This change applies to all applications received on or after March 3rd, 2008.

All applicants must still meet the second criteria which is: that they suffer from a severe and prolonged disability.

This change will benefit those that have been seriously injured or suffer from a serious illness or disease later in life causing them to lose time off work.

Preferred Suppliers for Health Care Equipment

Effective March 3rd, 2008 the WSIB will require workers to purchase approved health care equipment and supplies from a list of three preferred suppliers. The suppliers are Medical Mar, Motion Specialites and Shoppers HomeHealthCare. All three preferred suppliers provide home delivery and set up for workers who are unable to get to the store or do not have a store in their community.

Injured workers will no longer have to pay out of their pocket and wait to be reimbursed. Instead, the medical suppliers will submit the bills to WSIB and they will be reimbursed directly. The supplies will still require a prescription and pre-approval from WSIB. This policy does not apply to prescription drugs.

The Board has provided a list of products that are covered on its website. If you have any questions regarding this policy and the new procedures we encourage you to contact your nurse case manager.

Court Quashes WSIAT Decision

The Divisional Court recently reviewed a decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) concluding the calculation of earnings decision was correct in an employer’s contributions to health and pension plans are excluded from the worker’s pre-injury earnings. The Board had determined that the earning’s basis do not include these payments. The worker applied to the Tribunal to have these employer’s contributions included in the earnings. The request was denied. The Vice-Chair of the Tribunal found that “the contributions were not earnings within the meaning of s.2 of the Workplace Safety & Insurance Act”.

The Court reviewed the Tribunal’s decision and indicated that the Vice-Chair failed to take into account the legislative history of the applicable provisions and the government’s explanation for various amendments to the Worker’s Compensation Act. The failure to consider this and to assess its overall weight in the context of the facts and law rendered the decision “patently unreasonable”.

The Court made the following statement: “The Vice-Chair purported to follow Board policy but it’s unclear whether the Board was aware or considered this legislative history and explanation in formulating its policy on employer contributions. What is striking in this case is the total failure by either the WSIB or WSIAT to take the legislative history and the government’s explanatory purpose into account in any way”. The Vice-Chair was engaged in an exercise of statutory interpretation and she considered a variety of factors in determining the purpose of the statutory provision and nature of the law. While the Court did indicate that the Vice-Chair erred in failing to consider the legislation, they did not conclude that an injured worker’s earnings should in fact include pension contributions paid by the employer. The Court instead set aside the decision and referred the decision back for a re-hearing. This result is pending. The Tribunal has been directed by the Court to consider the legislative history however, the amount or weight that the Tribunal will give this information is entirely up to the Tribunal. In the end, this may not change the law and result may remain the same and employer’s contributions to pension benefits may never be found to form part of the worker’s pre-injury earnings.

New Program of Care for Lower Extremity Injuries

The Workplace Safety and Insurance Board has now introduced a new program of care for Lower Extremity Injuries. The program is designed for workers who have been diagnosed with acute ankle sprain, an anterior knee injury with patellar tendinopathy, patellofemoral syndrome or a reocurrence. The Board describes the new program as an "experience based health care delivery plan that describes treatments shown to be effective for workers" diagnosed with these conditions.



The objective of the program is to:


" - facilitate early, safe and sustainable return to work

- resolve or reduce clinical signs and symptoms

- improve or restore strength and endurance with an intent to return to pre-injury function

- prevent chronicity

- achieve satisfaction with the quality of care among workers and other stakeholders "


This is the seventh program of care introduced by the WSIB. Other more common programs that workers may be familiar with include; the back and upper extremity program.


The programs of care have been useful in expediting injured workers to specialists in order to determine the nature and level of impairment. Unfortunately, in my experience if the issue is initial entitlement, the physicians are not asked to comment on compatibility of the injury to the duties being performed or the suitability of modified work. This type of information in my humble opinion could assist in the Board's decision making process.

WSIB Advertising Campaign

Well after attending a local business function last night I thought I'd finally add my 2 cents. While I can appreciate that the Workplace Safety and Insurance Board has a manadate to prevent accidents I am of the personal opinion that the recent advertising campagain is not appropriate.

The premise of the campaign is that there are no accidents. Well, as it turns out - there are. An accident is defined as a chance event with undesirable consequences. This is one of the definitions even accepted by WSIB. It implies that it is not preventable. Sometimes things happen. The other night I was driving home and it became extremely icy and slippery on one section of the road - it was entirely unexpected and unpreventable. Snow plows cannot be everywhere at the same time ensuring that the roads are safe. Even driving at a slow speed (40km/hr)could not have prevented what happened next.... The point is accidents do happen!


The next problem is that the advertising is too graphic, distasteful and does not portray reality. Just look at the WSIB's year end report and statistics. I'm sure most have seen the TV ad where there is an explosion and the worker falls out of a 4th floor window. Well after 20 years working in this area of law I have yet to see or hear this fact situation happen. In fact the number one reported injury in this province last year was a sprain or a strain. In our community and the claims that I see in my office the majority involve repetitive work. These types of incidents are more easily preventable by providing ergonomic workstations, incorporating proper lifting techniques or lifting devices, rotation of jobs, fatigue mats, proper tools... I could go on but I'm sure you get the point. The WSIB instead of helping the public- workers, unions, supervisors and employers learn ways to prevent these more common injuries has decided to sensationalize the Workplace accident. Most people can distinguish sensationalization from reality. We can distiguish war from an action movie. We don't take the action movie seriously and my belief is that we, as a society. won't take the WSIB ads seriously. Why? Because it just doesn't happen that way in real life.

Maybe its time for the WSIB to get a reality check!

Benefit Rate Changes effective January 1, 2008

By now you may have noticed an increase in your WSIB cheque which you receive and were wondering whether it was correct. Here is an explanation to help you decide if the amount you received is correct:

The clothing allowance benefit has been increased by 2.5%.

The Independent Living Allowance, Personal Care Allowance and the Guide & Support Dog Allowance were increased by the Consumer Price Index or 2.5 %.

The Personal Care Allowance(general rate) and the Non-Professional Escort fee was increased to $8.75 per hour.

For accidents after January 1, 1998, the monthly benefits cheques are recalculated on January 1 every year. The WSIB establishes a schedule of Net Average Earnings (produced by Actuarial Services and distributed by the Communications Division) for all levels of earnings up to the statutory maximum which reflects current rates for income tax, EI premiums, and CPP/QPP premiums in accordance with s.55 of the Workplace Safety and Insurance Act (the Act). The schedule is conclusive and final.

Board must pay for Medical Marijauna

In decision 2007/07 the Workplace Safety and Insurance Appeals Tribunal approved the worker's reimbursement for medical marijuana.

The Workplace Safety and Insurance Act specifically outlines in Section 33 (1):

"A worker who sustains an injury is entitled to such health care as may be
necessary, appropriate and sufficient as a result of the injury and is entitled to make the
initial choice of health professional for the purposes of this section. "

In his decision the Vice Chair of the Tribunal stated:

"In my view, that the Board’s decision to deny this particular aspect of the worker's
claim is based more on a general reluctance to consider marijuana as a legitimate alternative to
more traditional pharmaceuticals in the treatment of pain, than it is on any consideration of
whether this type of treatment might be of value to the worker."

In this case the worker was awarded a 30% Non economic Loss award for his low back injury. The medical evidence supported that the worker continued to have ongoing significant symptoms of pain in the back and lower extremity. All conventional forms of treatment were exhausted and ineffective.

Each case must be dealt with on its own merits and the Vice Chair noted that the wording of Section 33 is broad and provides the Board and the Tribunal with a significant discretion in determining the type of health care which may be necessary in a particular case. Equally broad discretion was noted in the Board's policy. The Board's policy lists types of health care benefits but also includes "such measures to improve the quality of life of severely impaired workers". While the policy does not define a "severely impaired worker", the Vice Chair placed significant weight on the fact that Health Canada approved access to marijuana.

The legislation governing Health Canada allows marijuana to be prescribed to individuals who suffer from " grave or debilitating illnesses, where conventional treatments are inappropriate or not providing adequate relief". After reviewing the medical information and the grounds for access to marijuana by Health Canada, the Vice Chair was satisfied that this worker can be described as “severely impaired” as a result of his compensable back injury. The request was not being made by the worker to support a habit but for pain relief.

The Vice Chair held that there was sufficient discretion in both the legislation and policy and granted the reimbursement for the cost of marijuana.

Another small but positive step for injured workers.

Closed Company allowed to Participate at Tribunal

An employer which had closed its business had requested standing to participate in a worker's appeal. The Tribunal found that the employer should be allowed to participate in the appeal. The fact that the employer did not have a financial interest in the outcome of the appeal was not a relevant consideration in relation to the question of whether the employer could participate in the appeal. It is common for employers to participate in appeals in which they do not have a
financial interest.

The case involved an occupational disease case and the Tribunal was of the view that these cases usually involve technical and complex evidence. Therefore, the participation of the employer on whose premises the alleged exposure took place is very likely to be of assistance to the Panel.

This case follows the line of reasoning set out in other cases. Workers should never assume that just because the 3 year NEER window has passed whereby an employer's premiums are not impacted by the results of an appeal that an employer will not participate in an appeal.