WSIB Appeals

Interim Board Policies - How are they working?

2011-08-16T09:46:00.000-05:00

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

2010-12-01T15:56:00.002-05:00

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

2010-11-28T18:14:00.002-05:00

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

2010-11-28T17:26:00.001-05:00

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

2010-11-27T20:03:00.001-05:00

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

2010-02-18T09:12:00.001-05:00

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?

2010-01-07T15:57:00.003-05:00

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

2010-01-04T16:27:00.002-05:00

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!

Auditor General's report targets WSIB

2009-12-30T16:01:00.002-05:00

The Auditor General's report has drawn controversy from both worker and employer groups. The report on one hand recommends that premuim rates for employers be increased and coverage be provided to the entire workfore but on the other hand makes recommendations to reduce the number of new claims and criticizes increased worker benefits. The current financial woes of the WSIB are multifaceted and while premium rates, expanded coverage, and accident prevention are steps to eliminating the current unfunded liability they are not the only avenues in this writer's view. Good, informed, and fair decision-making from intial entitlement to LMR are also key to financial recovery and a better system.

72 Month Lock in Decision

2009-12-29T16:21:00.003-05:00

I was recently told that an appeal of a 72 month lock in decision did not include a review of the suitability and availability of the Suitable Employment or Business chosen. The worker did not appeal the goal initially but after completing the 3 year course and months of job search it does not appear to be available in the local job market. The worker was also granted psycho traumatic benefits following completion of her bookkeeping program but goal was never reviewed in light of this. If the final review is to review the sufficiency or insufficiency of the Loss of Earnings paid to a worker how can this be done in isolation without again considering the availability of work? In my view a final review must look at both the availability and suitability of the goal chosen at the time of the review. Otherwise what is it's purpose?

Lump sum Payments of NEL Awards

2009-10-23T13:59:00.001-05:00

I am often asked to comment on whether a worker should opt for a lump sum award of their NEL award. The answer is yes. While it is true that over time you will receive more by accepting a monthly payment, this is dependent on the WSIB being a viable entity, the rules remaining the same and your being alive.

As of the end of the first quarter of 2009, the Board’s unfunded liability was $12.38 billion. Due to substantial job losses, in the Province the Board lost $105 million in premiums. While they insist that the system is financially viable money to pay for claims must come from somewhere. I’m a firm believer that money in my pocket today is better than possibly nothing in the future. In addition, if you die, the NEL benefit is not transferable. Your spouse and children are not entitled to these monthly NEL payments. If you accept the lump sum you can do what you want with the money today or in the future.

CPP and WSIB a new approach?

2009-08-13T15:41:00.005-05:00

Writing was put on the back burner for a while so that I could reorganize the office to serve you our clients better.

The Tribunal recently decided a case involving a worker who originally sustained a mild concussion, bilateral shoulder strain, a neck injury, and a fracture of the spine. It was later determined that the worker recovered from the physical injuries but continued to suffer from a psychological injury. The worker was granted a 25% Non-economic Loss (NEL) award for this psychological impairment. The worker was also found unable to work and was granted a full FEL (Future Economic Loss Award) and was paid 100% loss of earnings.

The worker was also granted CPP disability benefits. The Board offset 100% of the CPP benefits from the FEL benefits.

Normally the Board and the Tribunal look at the nature of the medical conditions that were recognized by the Canada Pension. If CPP only considered compensable conditions then these benefits would be offset at a rate of 100% from the WSIB benefits. If however, CPP considered other conditions the offset is prorated.

So if for example the WSIB granted benefits for a back injury and found a worker permanently unemployable as a result of this condition but on the CPP application there were other medical problems contributing to the worker's inability to work such as carpal tunnel and a heart condition it is likely that the CPP benefits would be offset by only 30 to 50% rather than 100%.

In this case however, the Tribunal took a broader approach and looked at the impact of the workplace accident.

The Tribunal found that a review of the medical report in support of the worker’s CPP application, clearly related the worker’s disability to the workplace injury of January 16, 1997 and not to any other cause. They did not accept the argument that because the CPP application lists the physical conditions that WSIB had determined were resolved that they could not consider an offset. What was more important the CPP disability benefits were being paid for
the work-related injury, notwithstanding the fact that it has been granted on an organic rather
than non-organic basis.

What troubles me with this decision is that the WSIB never considered the physical injuries permanently injured as a result of the accident. So how could they continue to contribute to a person's unemployablity if these injuries were seen by WSIB to have been resolved. I hope that this case is just an anomaly. Otherwise what happens if WSIB denies initial entitlement to various injuries but CPP recognizes that the worker has ongoing problems with that denied area of injury? Certainly, those problems should be seen as non compensable.

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

2008-12-19T11:50:00.004-05:00

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.

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.

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

2008-12-12T10:53:00.007-05:00

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

2008-12-10T11:15:00.002-05:00

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

2008-12-01T10:01:00.003-05:00

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"

2008-05-28T08:52:00.000-05:00

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

2008-05-20T10:31:00.000-05:00

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

2008-04-16T08:59:00.005-05:00

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

2008-04-09T13:42:00.003-05:00

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

2008-04-03T09:51:00.004-05:00

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

2008-04-03T08:16:00.003-05:00

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

2008-04-02T08:08:00.003-05:00

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

2008-03-15T10:48:00.000-05:00

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

2008-03-04T09:27:00.002-05:00

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

2008-02-15T10:02:00.002-05:00

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

2008-02-08T16:22:00.000-05:00

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

2008-02-07T10:53:00.002-05:00

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

2008-02-05T09:22:00.000-05:00

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

2008-01-24T08:55:00.000-05:00

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.

Fair Practices Commission

2007-05-29T16:18:00.000-05:00

If you're having problems with the WSIB then you should consider filing a complaint with the Fair Practices Commission. The Fair Practices Commission is the organizational ombudsman for the Workplace Safety and Insurance Board. They investigate complaints about the service you are receiving from the WSIB. It could be an issue concerning the length of time it is taking to issue a cheque or a decision, the attitude of a Board employee or a decision making process.

The Commission also tracks complaint trends, identifies systemic issues and recommends improvements to the WSIB. It's another voice for the stakeholders on major systemic problems with the WSIB system.

Filing a complaint with the Commission can be effective. If you're having difficulties with the WSIB look into the Fair Practices Commission you may be pleasantly surprised at the results you get from the WSIB.

WSIB and Heart Attacks

2007-05-25T11:09:00.001-05:00

There is a presumption under the Board policy that if an accident occurs at work it occurs in the course of employment. This holds true for heart attacks. Even though certain risks factors may exist such as high blood pressure, being overweight or smoking, if an individual does not have any preexisting heart conditions the Board is to examine the circumstances surrounding the heart attack. A worker that was engaged in any type of overexertion at the time of the heart attack or death should be granted benefits despite the preexisting risk factors. If the Workplace Safety and Insurance Board (WSIB) fails to grant benefits this issue is certain worth a review and appeal to the Workplace Safety and Insurance Tribunal (WSIAT). See tribunal cases 851/91, 339/87, 244/87.

Separation and Divorce - The Impact on WSIB benefits

2007-05-24T08:44:00.000-05:00

The question of whether WSIB benefits, a pension and supplementary benefits (now replaced by NEL and LOE benefits) should form part of net family property in an equalization on separation or divorce was reviewed by the Court of Appeal in the case Lowe v. Lowe. The Court determined that WSIB payments should not be included in the calculation since they are exempted from the definition of property. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages are exempt under the Family Law Act. It is clear that a pension or NEL award would fall within the exemption. It is an award to compensate for the pain and suffering and physicial or mental injury.

In determining whether the monthly benefit is to be included the Court looked at the case of Brice v. Brice. The case stated "It seems to me preferable from the perspective of clarity and predictability to treat all disability benefits the same whether they are calculated strictly in terms of lost income or as compensation for impairment to earning capacity. However, as I have already indicated, disability payments that form part and parcel of an employee pension benefit plan may be on a different footing. In the end, the central point is that disability benefits represent income replacement and, from the perspective of family property and spousal support, are more appropriately treated on the same basis as income for employment."

As a result the Court of Appeal determined that WSIB benefits were not part of the calculation for net family property.

WSIB Report Card

2007-05-23T07:48:00.000-05:00

I was reviewing some information for a case, when I came across a letter send by then Interim WSIB Chair Jill Hutchenson to the Minister of Labour dated September 30, 2005. The letter made a number of recommendations for further improvements to the system both legislative and policy in the following areas:

1. Return to Work

2. Labour Market Re-entry

3. Deeming of Loss of Earnings Benefits

4. Faster Decision Making

5. Independence for Workers

6. Simplification of Process

Let's see how they have done.

1. Return to Work

Implementation was Scheduled originally for early 2006 we are still waiting for the new policies and I don't expect to see anything soon. Last information update estimated one more year. Grade: Fail

2. Labour Market Re-entry

The LMR plan was to be coordintated with the Return ot Work policies but nothing has been done to make any improvements to the basic need to have meaningful plans that are matched to real jobs that are available. I have seen too many plans that are doomed to fail from the start. Plans need to be realistic given the workers age, academic abilities, all physical and psychological restrictions, both compensable and non compensable. The plan must provide skills that are transferrable and matched to a job that exists in the worker's market area. There is no point in paying thousands for a private college program when the job market demands a University degree to be even considered for a position. The Board needs to stop promising change and act now. Grade: Fail

3. Deeming of Loss of Earnings Benefits

Changes were announce in the recent provincial budget. Hopefully the act gets passed soon. Grade: Provisional Pass

4. Faster Decision Making

After a summer of changing adjudicators and restructuring I have yet to see the faster decision making process. In fact things seem to be slower. Phone calls are still not being returned and implementation of appeal decisions and issuance of cheques is more often a new saga. Promises are fruitless time to see some results. Grade: Fail

5. Independence for workers

While changes have been proposed to provide a 2 1/2% increase to workers this will not create financial independence for these workers. Too little too late. The system must keep up with the cost of living. The de-indexation of benefits in 1985 caused a serious inequity that still has not been corrected. Grade: Fail

6. Simplification of Process

Forms have been redesigned including the Form 7, 8 and the Functional Abilities Form. Now the question which remains is whether the forms work and provide sufficient information to streamline the process. Grade: Pass

New Return to Work Policies

2007-05-22T16:55:00.000-05:00

Well the second round of consultations is done but the end is nowhere near. We were all hoping to see a final draft of the Workplace Safety and Insurance Board's final return to work policies sometime this summer. This will not be happening. The best estimate is about a year. they need time to review the submissions, evaluate the pilot projects and make further changes. So what's the next step? If I were a betting person I would have to a say a third draft?
Keep you posted.

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

2006-11-24T10:54:00.000-05:00

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.

WSIB and Mandatory Retirement

2006-11-23T15:26:00.000-05:00

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: www.wsib.on.ca/wsib/wsibsite.nsf/LookupFiles/PolicyQAOlderWorkers/File/PolicyQAOlderWorker.pdf . 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.

2006-10-06T11:52:00.000-05:00

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.

Workers Compensation New Developments in Recurrences

2006-09-18T11:22:00.000-05:00

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.

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

2006-05-05T16:16:00.000-05:00

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.

WSIB APPEALS

2006-02-13T18:32:00.000-05:00

WSIB APPEALS

2006-02-13T18:02:00.000-05:00

Suzanne Dajczak

New Return to Work Policies

2006-02-13T16:29:00.000-05:00

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.

2005-06-30T10:15:00.000-05:00

Just as a number of changes were being proposed by the Minister of Labour which should improve the Workplace Safety and Insurance system the Premier DALTON MCGUINTY
shuffles cabinet and appoints Mr. Steve Peters as the New Minister of Labour.

His biography is below:

Mr. Peters was elected to the Ontario legislature in 1999.

Born in St. Thomas in 1963 to Joan and Percy Peters, both children of Ukrainian immigrants, Mr. Peters is proud of his heritage.

Mr. Peters is a graduate of Arthur Voaden Secondary School in St. Thomas and the University of Western Ontario, where he earned a bachelor of arts, majoring in history.

When Mr. Peters was first elected to St. Thomas Council as an alderman in 1988, he was employed as a stock clerk at a downtown A&P store. Mr. Peters was still working at A&P when he was elected to his first term as mayor of St. Thomas in 1991.

His election win attracted national news coverage, as he was Canada’s youngest mayor at the time. Mr. Peters was re-elected mayor with massive majorities in both 1994 and 1997. As mayor, Mr. Peters served on all city committees and many outside boards and agencies.

Mr. Peters was appointed as the disabilities critic in June of that year and moved to the agriculture portfolio in September 2000.

When not hard at work for his constituents, Mr. Peters enjoys gardening and pursuing his other passion, local history. Mr. Peters is considered one of the foremost experts on Elgin County history and is a collector of Elgin memorabilia, notably items associated with Jumbo, the giant circus elephant that was struck and killed by a train in St. Thomas in 1885.

It was only at the beginning of this month that Mr. Bentley announced firm deadlines for Next Steps in Workplace Safety. These steps included recommendation in Return to work/Labour Marker Re-entry, faster decsion making, independence for workers with regard to payment options and simplification fo the forms and rules.

For those who have been waiting for their decisions while suffering from their injuries and the serious financial impact of the delays I hope that Mr. Peters will continue on this course quickly.

CPP Offsets and Loss of Earnings

2005-06-30T09:55:00.000-05:00

If you are in receipt of Canada Pension Benefits and Workplace Safety and Insurance Benefits there are new policies which affect you. Currently, the Board offsets 100% of CPP benefits received by the worker or their survivor for the work related injury. This has been the approach for individuals who receive either 100% loss of earnings benefits from the Board or partial loss of earnings benefits from the Board. Often times those who were granted partial benefits from the Board and also were receiving CPP benefits would not be paid any compensation because of the offset. This was certainly not fair.

The Board has now adopted a new formula so that the portion of the CPP benefits which exceeds the deemed earnings amount will be added to worker's post injury earnings. While the Board will continue to deduct 100% of CPP benefits which relate to the compensable injury from individuals who receive 100% benefits the new rules for those who have been deemed by the Board to have some earning capacity should be fairer.

WIN WSIB APPEALS

2005-02-21T16:27:00.000-05:00

Have you been denied WSIB benefits? Keep reading to learn how you can Win WSIB APPEALS. The following information will guide workers in dealing with the WSIB and win their WSIB appeals.

If you do not agree with the WSIB’s decision, you do have the right to appeal WSIB decisions. But keep in mind that there are time limits to appealing a decision. The majority of decisions are subject to a 6 month time limit but those involving Labour Market Reentry Programs or retraining must be filed within 30 days. The appeals must be in writing and be sure to put the date at the top of the letter with your return address. A short letter will suffice. Often times long appeal letters are confusing and not completely read. In addition, if you are angry, you may end up saying something you may regret or could damage your case. You should identify the issue you are appealing, for example - initial entitlement, ability to work, Non economic loss award and the date of the adjudicator’s decision. You should also request a full copy of your claim file. Keep a copy of the letter for your records.

The next step is to review the entire file. Every WSIB claim or appeal requires good preparation and presentation. Often times the medical evidence is key. The questions you should ask yourself include:

1. Is there medical evidence that deals with the causation of the disability? Is the evidence convincing or does it use words like "may be caused", "could be caused by" or simply does not comment on the cause of the injury?

2. Does the medical evidence identify a diagnosis? Are there conflicting opinions about the diagnosis?

3. Is there evidence that the medical problems have been continuous or are
there gaps? Make sure that all specialist reports, physiotherapy, chiropractic and family doctor records are in the file. Dates of every health care visit relating to the claim should be recorded and in the file.

4. Does the medical evidence explain or show that you did not have prior problems with preexisting conditions?

5. Do the medical reports agree about the facts of the disability?

6. Is the medical evidence based on subjective or objective findings? Decision makers prefer an opinion of a specialist to a generalist. They also prefer to see indications in the report the physician examined the worker thoroughly and contains more substantial evidence of objective signs in support of its opinion. Therefore a note with states "back pain, unable to work, will reassess in 3 weeks" will normally be given little or no weight.

Get better medical evidence if you need it. Remember quality counts, not quantity.

The next step is to identify any other missing evidence. Think of the best source you have to prove your point- a witness, a document, a photograph, or a diagram. If the issue is the type of work you were performing maybe the union or the company has a job description or physical demands analysis.

Once you’ve assessed the evidence, consider your theory. Think of the central point of your case. "Keep it simple stupid" (KISS) is a rule that I always go back to it helps to focus on theory. If you provide too much information this may only confuse the decision maker. Remember your job at the hearing is to prove your theory. Do you have all the facts or evidence necessary to convince the listener of your point of view? If not you still have some work to do.

The presentation of your case at the hearing is also important. Never assume that essential facts are understood. State them and know what you are going to say ahead of time. Stick to your theory and prepare a road map. Take the decision maker thru a logically developed presentation from beginning to end. Often times a short focused presentation is more effective that spending hours going thru the information. Remember the decision maker has read the file.

Going thru these simple steps will ensure that the issue is stated, the facts are established, and that your reasons are explained. If you follow these steps it help you win WSIB appeals.