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.