Closed Company allowed to Participate at Tribunal

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

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

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

Fair Practices Commission

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

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

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

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

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

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

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.

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

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?

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

WSIB APPEALS

Suzanne Dajczak

New Return to Work Policies

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.

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

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

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.