Times are changing at WSIB

We are now in times of change at WSIB and unfortunately not good change for the average worker. Workers are being told that they can work, despite their doctors opinion. Workers are being told that they have recovered and their problems are related to preexisting conditions, despite continuing to have symptoms they have never experienced before. Workers face long delays in the appeals process and face risk of bankrupcy.


If these sound like problems that you face- one thing that our experience over the years has taught us is to never give up. Be sure that you appeal the decisions you disagree with and seek professional assistance with your appeal. Despite all the changes at WSIB, there is still hope and success at WSIB Appeals Branch and the Workplace Safety and Insurance Appeals Tribunal .

Interim Board Policies - How are they working?

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

 Effective December 1, 2010, five interim WSIB Work Reintegration policies have been implemented.  One of the most important to workers is WSIB Board Policy 19-02-02.  This policy sets out the cooperation obligations and penalties for the workplace parties during the return to work / work transition (WT) processes. If either or both parties refuse to cooperate, the WSIB may reduce or suspend the worker’s benefits, and / or levy a penalty on the employer. The WSIB will need to be convinced, on a balance of probabilities, that a workplace party knew of his / her obligation, had the ability to carry that obligation out, and failed to do so, in order for a non-cooperation penalty to be applied


The WSIB non-cooperation policy states:
The WSIB reduces the worker’s wage loss benefits by 50% from the date the written notice comes into effect until the 14th calendar day following that date, or until the worker starts co-operating again, whichever is earlier.If the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB suspends the worker’s wage loss benefits.
For WT (work transition) activities, if the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB reduces the worker’s wage loss benefits to reflect the earnings of an experienced worker in the suitable occupation. The WT assessment and/or the WT plan may also be terminated.
 
These are not entry level wages but that of a fully experienced worker which will likely mean that no loss of earnings will be paid in the majority of cases. For example if a worker is being trained as a paralegal and fails to cooperate the workers benefits will be reduced to reflect the earnings of a fully experienced paralegal with is approximately $32.00 per hour.  So if the worker originally earned $18 per hour there would be no benefits paid by the Board.
 
The Wage loss benefits remain suspended until the date the worker starts co-operating again, at which point the WSIB stops the non-co-operation penalty and restores wage loss benefits. Wage loss benefits are restored on the day following the day that the WSIB is satisfied of the worker’s "renewed co-operation."
 
The use of the word "suspension" is significant.  Under section 66 of the Workplace Safety and Insurance Act, RSO 1997, c. 16. Sched A, if payments are suspended under the insurance plan, no compensation is payable in respect of the period of suspension.
For employers, the WSIB will levy an “initial penalty” of 50% of the cost of the worker’s loss of earnings (LOE) benefits from the date the written notice comes into effect (which is seven WSIB business days after the date of the WSIB’s written notice) until the 14th calendar day following that date, or until the employer starts cooperating again – whichever is earlier. If the employer’s non-cooperation continues beyond that 14th calendar day, the WSIB will levy a “full penalty” which is equal to 100% of the cost of the worker’s LOE, plus 100% of any costs associated with providing WT services to the worker.


I caution workers to meet with their employers, attempt to identify suitable work and if in an LMR continue to attend school.  It is very important to cooperate under these new policies.  It is too early to see how aggressively the Board will be applying these penalties and how far they will go to "force" employers to take workers back to work.  We have been that retraining is a last resort how these policies will play out remains to be seen.  In the interim cooperate so that your benefits are not jeopardized.

Migrant Workers and WSIB

A recent article  appeared in the Toronto Star on October 8, 2010, written by David Gouter, Assistant Professor in the School of Labour Studies at McMaster University, and Chris Ramsaroop, organizer with Justicia for Migrant Workers, that I must take offense to.  They noted in the article quite incorrectly that there is a massive power imbalance built into temporary foreign worker programs which contribute to unsafe and unfair working conditions.  This is with all due respect is a incorrect assessment based on a lack of knowledge or experience of ever working on a farm or doing an ounce of manual labour in their life.  Firstly, these workers are subject to WSIB coverage from the moment they step foot onto a plane in their home country until they return home. They are covered at church in the grocery store or when they go out to visit other workers off the farm premises.  Who in Ontario has this type of coverage as a worker?  No one! 

The work is difficult but without migrant workers you would not have food on your table, since the work seems to be too difficult for our Ontario workers.  They can be sent home  and terminated just like any other worker in this province when they are under performing or there is a lack of work.  The housing is inspected prior to the worker's arrival to ensure that it meets current standards and overcrowding is not permitted.

As an employer of these migrant workers, I invite and challenge these scholars to do their homework.  There are always a few bad apples, but the majority of migrant workers are happy with their conditions and apply to return year after year to the same employer.  To stage a "Pilgrimage to Freedom for Migrant Workers" who willingly come to Canada to work and come for the sole purpose of making money, seems a bit ridiculous, doesn't it?

WSIAT Reconsiderations- Decision 527/08

Under the Workplace Safety and Insurance Act the Appeal Tribunal's decisions are to be considered final.  However, under section 129 of the Act the Tribunal may reconsider its decision"at any time if it considers it advisable to do so".  The Tribunal has applied a high standard of review when asked to reconsider a decision.  It must be shown that there is a significant defect in the process or content of the decision, which if corrected, would lead to a change in the result of the decision. It is not enough to disagree with the decision.  The Tribunal carefully weighs the need for finality in the appeal process and the prejudice to other parties.

As noted on the Tribunal website  www.wsiat.on.ca/english/appeal/reconsiderations.htm , the power to reconsider is discretionary. The Tribunal might decide that there is a good legal reason to reconsider a decision when:

"•significant new evidence is discovered which was not available at the original hearing and which would likely have changed the outcome

•the decision overlooks an important piece of evidence (as opposed to rejecting the evidence or distinguishing it)

•the decision contains a clear error of law (for example, the decision does not apply the relevant sections of the Workplace Safety and Insurance Act)

•the decision contains a jurisdictional error (for example, the Tribunal decided an issue which it did not have the legal authority to decide). "

The power to reconsider decisions and the threshold test was considered by Vice-Chair Dee in Decision 527/09R.  The worker argued that the Tribunal decision failed to consider the worker's testimony.  This was rejected by Vice Chair Dee.  The Tribunal simply did not accept the oral evidence of the worker due to numerous inconsistencies.   However, it was found that the prior decision was based on two significant errors of fact.  The Tribunal made its decision on the basis that the worker failed to provide the WSIB with the names of co-workers whom he claimed were witnesses to his ongoing complaints between the initial injury and a recurrence.  However, Vice Chair Dee found that there was documentation in the case record that the worker did provide the with the names of witnesses on a number of occasions, as well as in the reporting of the recurrence.

In addition the Tribunal concluded that the worker was not performing modified work at the time of the recurrence.  Vice Chair Dee noted that the Tribunal did so without considering highly relevant information that might lead to a different conclusion, namely, an incident report from the employer that corroborated the worker's modified work duties. 

These two errors were noted to be significant and that a reconsideration was in order.  This decision highlights the high threshold that an applicant must meet for his or her application for reconsideration to be successful.  It is necessary to show that there is a significant defect in order to be successful on reconsiderations.  It is not merely a disagreement with the result or a rehearing of the evidence.

WSIB New Work Reintegration Program

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

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

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

Time Limits

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



Filing a Claim


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


Labour Market Re-entry Plans


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


Other Decisions


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


• initial entitlement


• recurrences


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


• earnings basis


• non cooperation




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


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




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


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


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


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




What if I miss a limitation period?


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

LMR Completed- Now What?

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


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


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


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


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


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


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


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


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


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


2. Adequacy of skills


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


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


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


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


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

WSIB New Year Housekeeping

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


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


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


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


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


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


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


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


Happy New Year!

Auditor General's report targets WSIB

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

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

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?

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?

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

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

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

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

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

NEL Program Redesigned

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

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

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

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

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

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

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New Service Delivery Model

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

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

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

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


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

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

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

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

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

Overnight Shift Work Identified as "Probable Carcinogen"

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


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


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


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



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

Do I have to attend an employer requested health exam

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

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

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

• help with your early and safe return to work


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


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


• help better understand the nature of your injury

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

Loss of Retirement Income Benefit Changes

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

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

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