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.

WSIB New Work Reintegration Program

The Workplace Safety and Insurance Board  (WSIB) has introduced its draft policies for consultation on the new work reintegration program.  In response to criticism of the current Return to work and Labour Market reentry program  the Workplace Safety and Insurance Board has attempted to amalgamate the policies and focus on returning workers to safe, sustainable jobs and ensuring quality training, more aggressive cost containment and increased accountability.  It is no secret that the Workplace Safety and Insurance Board is trying to save costs and this is certainly evidenced in the draft policies.  The preferred and first choice will be to return to the worker to the accident employer.  This of course can and has been fraught with difficulty for many injured workers.  Employer/employee relationships are anything but perfect and while this may be an excellent option in the case of large employers with excellent modified work programs, mid size and small employers cannot be expected to hold or create employment   Disputes will continue to occur and although a WSIB staff specifically assigned to act in the new Work Reintegration role will be available, the age old modified work problems do not seem to be addressed in the new recommendations.  The issues of returning workers back to work too early, whether the work is appropriate given the worker's medication intake or pain experiences or the termination of a worker after the NEER window is closed are still ongoing issues.

The Board has attempted to address the Labour Market Reentry issues relating to credible educational institutions, job search leads, and the choice of program. These are all welcome changes.  In recent years, there has been difficulty in determining whether a goal is available.  With the case manager providing job search leads this should help workers think outside the box of what they can do with their education but also put into perspective what jobs a worker can perform with a certificate in human resources as opposed to a degree.

I truly hope that a realistic approach is adopted by the WSIB.  Rather than emphasizing the target of return to work or labour market reentry , it is necessary to remember that no one asks to be injured, coping with change is difficult and sometimes thinking outside the box is the best solution.  I would ask that in the new work reintegration program that the Board also consider thinking outside the box with a true buy out for workers  where a worker is paid upfront for the cost of a program and allowed to do what is in their view suitable .  This could in fact save the Board tens of thousands of dollars per case and in the end have a win win situation for all the stakeholders.    

Time Limits

The Workplace Safety and Insurance Act requires that all cases be dealt with within specific time limits. It is extremely important that workers meet the time limit restrictions. If a time limit is not met than a worker may lose the right to challenge an unfavourable decision or even collect benefits.



Filing a Claim


If you are injured at work you must file a claim with the Board within since months of the injury. While you may not think that the accident is significant at the time o injury, a problem could develop in several months or years. If you do not file a claim with the Board you may lose rights to future benefits. A claim should be filed using a Form 6. These are readily available from your employer or the Board.


Labour Market Re-entry Plans


If you disagree with the labour market re-entry plan proposed by the Board you have 30 days to appeal. If you believe that the program or proposed job is or may be too physically demanding or the wage level does not approximate your preinjury earnings, you must appeal the Board’s decision in writing within 30 days of the date of the Board’s decision letter. This time limit is strictly adhered to and some Appeals Resolution Officers will not let you argue the goal was not suitable unless it was properly appealed at the outset.


Other Decisions


All other decisions made by the Board must be appealed within 6 months. This includes decisions concerning but not limited to:


• initial entitlement


• recurrences


• loss of earnings benefits (formerly Future Economic Loss benefits)


• earnings basis


• non cooperation




You’ll be advised of the Board’s decision in a letter, which will also state the time limit and procedures or appealing the decision. If you wish to appeal you must do so in writing within 6 months of the date of the letter.


An appeal from an appeals resolution officer’s decision is also subject to a 6 month limitation period. The appeals resolution officer’s decision is the final decision of the Board and can be appealed to the Tribunal.




What if I’m not ready to proceed immediately with an appeal?


First, upon receipt of the Board’s decision, you need to decide if you in agreement with the outcome. If you disagree with the Board or may disagree in the future, (such as the LMR goal) you must notify the Board in writing that you wish to appeal within the specified time limits.


If this is done within the required time limit, you will receive a letter stating that you met the statutory requirement. Shortly afterward you will receive a copy of your file and an objection form. When you receive the objection form send a letter that you wish to continue with the appeal but are waiting for additional information. Once the notice is filed there are no further time limits. The notice of your intention to appeal preserves your right to continue with the appeal any time in the future.


At this time you should also consider hiring a professional who can assist you with your appeal. The law is governed by the Workplace Safety Insurance Act, caselaw and the Board policy.




What if I miss a limitation period?


The Board has the authority to extend the time limit in exceptional circumstances. Such circumstances include serious illness or death in the family. It is difficult to obtain an extension and therefore important to seek professional advice to ensure that you meet the criteria and you best case is put forward.

LMR Completed- Now What?

You’ve finished your Labour Market Re-entry program (LMR). While looking for work, it becomes clear to you that there are no jobs available and you’ve come to the conclusion you can ever work again. Now what?


The Board will re-evaluate your loss of earnings benefits upon completion of the retraining program to reflect your potential new earnings. It is usually the Board’s opinion that you have received skills and are therefore, able to find employment in the suitable employment or business (SEB) which was chosen for you. For example; if you retrained as customer service representative, the WSIB would presume that you have the appropriate skills and should be able to find employment at an entry-level wage in this job category. They would then reduce your benefits by the amount of the anticipated entry-level wages in this SEB. In this example, a customer service representative. This decision is of course, appealable. The appeal must be filed within 6 months of the date of decision.


In determining the loss of earnings to be paid the WSIB in accordance with s. 43(4) of the Workplace Safety and Insurance Act shall determine the worker’s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker and is available and,


(a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or


(b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision.


Interestingly, the word determine is not defined in the legislation but yet effort was made to introduce the word “determined” into the legislation in place of the word “deemed”. Determined means to find out or come to a decision about by investigation, reasoning or calculation. Deemed means to come to think or judge or to have an opinion. I can believe a job exists or deem that a job exists but yet determine thru research and investigation that in reality my belief or opinion was incorrect based on the statistical information available. This is an important distinction. The Board must perform a more thorough review of the actual statistical information available and consider its veracity against the current true labour market.


There are of course times when workers cannot find employment in their training program for a number of reasons and the following factors should be considered in determining whether or not an appeal will be successful:


1. The availability of employment in the goal set by the Board.


Available means that the employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job. Obviously this argument is very dependant upon the economy and the current economy in the Windsor area there may be a number of goals which may not have jobs available following the completion of a retraining program.


In addition, the worker’s scope of job search or geographical location may come into play. For example, if a worker’s previous job was in Leamington and they’ve always worked in Leamington and have issues with transportation; the local job market which should be reviewed is the Leamington area rather than the entire Windsor-Essex County area.


2. Adequacy of skills


The education and experience a worker possesses may not be sufficient to have a reasonable prospect of obtaining a job in the field specified. For example, it may be successfully argued that a worker who obtains computer training may now have out dated skills or that a certificate of social work from a business college may not have the necessary skills to complete and/or perform the duties of a social worker The starting point for this type of argument is the job requirements set out by the National Occupation Code (NOC) which is available through Employment Canada. This index of job descriptions also provides the basic job requirements in order to be successful in employment. If the job requires a grade 12 education or a college/university degree and this level of education has not been provided, then a worker may be successful in arguing that they did not receive the necessary skills to be successful in obtaining employment in the job identified by the Board.


3. The worker’s physical ability to perform the duties required.


Success on this point depends heavily upon medical information, job descriptions and actual job postings. If a worker has a restriction of no prolonged standing and the goal chosen is customer service. The Board may have thought there were jobs were the worker could sit but a review of job postings could show no such jobs available within a 6 month period and therefore the worker could not possibly have a reasonable prospect of obtaining a sitting customer service job.


The question of whether benefits should be reduced following an LMR plan also needs to address a worker’s compensable and non compensable physical and mental abilities, but also their transferable skills, education and even age.


It is important that a worker, if in disagreement with a Board decision, immediately appeal the decision and obtain appropriate advice so as to maximize the benefits they are legally entitled to from the Board. It is extremely important that regardless of whether or not you as a worker agree with the WSIB, you must continue to search for work even if you believe you can never return to work again. A job search is critical in ensuring that you have mitigated your losses as an injured worker and made a whole-hearted attempt at finding employment in the area which you have been retrained. A failure to do this can result in either a negative decision or a reduction of benefits.

WSIB New Year Housekeeping

There have been a number of initiatives and changes at the WSIB in recent months.


WSIB has started to publish a few select decisions from the Appeals Branch on the publicly accessible website Canadian Legal Information Institute (CanLII).  Although the Board makes its decisions on a case by case basis and are very fact driven, it will be interesting to see if there is any value in using these decisions for policy interpretation purposes.  The decisions can be found at:  www.canlii.org/en/on/onwsib


The WSIB has introduced two Recurrence teams as part of its new service delivery model.  One is located in Toronto the other in Hamilton.  The teams are responsible for making decisions concerning all recurrences adn secondary injuries where the file has not be active for more than 30 days.  As well, all decisions concerning work disruptions which include short term, long term layoffs, strikes and plant closures are handled by the Recurrence team.  EI Work share and Work reductio programss would fall under this team's purview as well.


WSIB has announced a consultaiton regarding the joint health and safety committee certification program.  For details go to:  www.wsib.on.ca/wsib/wsibsite.nsf/public/PreventionJHSCConsultation


The Board also started a SIEF (Secondary Injury Enhancement Fund) pilot project in Hamilton.  All SIEF requests are to be handled by a special team who will adjudicate all SIEF decisions rather than the adjudicator. SIEF is a program that basically provides demployers with cost relief that translates into reduced premiums with the amount of relief being dependent the severity of the workplace accident and severity of the preexisting conditions or injuries.


Finally, the Board updated severally Policies in October and November, 2009.  These include:


Disclosure of Claim File Information to Worker or Employer Representatives
Disclosure of Claim File Information to Health Care Providers, LMR Providers and Research Entities
Hearing Devices
Independent Living Devices


The new policies can be found at www.wsib.on.ca/wsib/wopm.nsf/home/opmhome


Happy New Year!