Injured Workers' Day- June 1

Every year, injured workers gather on June 1 at Queen's Park to remember those who have died in accidents at work or of occupational disease and to press for improvements for the injured and the survivors. With the deteriorating situation at the Board this year, it is important that many injured workers come out on June 1 so that a message is delivered that every benefit cut has a very tangible cost, and that injured workers will remember.

Return to Work- Part 1- The simple gets complicated

Injured workers are offered modified work by the accident employer in situations of varying complexity. There are often disputes about the worker's level of impairment (total vs. partial), restrictions, the impact of "non-compensable" conditions, and the sustainability and meaningfulness of work, which complicate a return to work. This series begins with the simplest case- return to work for a worker who is partially impaired with agreed restrictions for a single compensable condition where the work is obviously sustainable and meaningful. The only issue in this simple case is whether the work is suitable. In other words, are the requirements of the work consistent with the worker's restrictions?

There is a whole field of professional study, ergonomics, which concerns itself with the physical requirements of tasks and their relationship to health and impairment. Until recently, the Board employed ergonomists who would often review modified work and provide lengthy opinions about the work and its compliance with the worker's restrictions. This will no longer occur. Instead, Return to Work Specialists (who may or may not have ergonomic training) will meet with the worker and the employer and give quick oral opinions about whether work is suitable. The Specialists are not expected to provide reports about the physical requirements of the job and reasons for their opinions.

This process bears no relation whatsoever to the law and Board policy which in theory ought to govern the situation. The Workplace Safety and Insurance Act, sub-sections 40(5) and (7) speaks of mediation to resolve disputes. Board policy suggests that the Board can use functional abilities evaluations, ergonomic assessments, controlled environment assessments and work trials, to assist in the process. The Board holds the view that the new Service Delivery Model allows it to avoid using the discretionary resources provided for in the policy.

So, what ought a worker to do when faced with a quick and dirty opinion from a Return to Work Specialist that proposed work is suitable for his/her condition, and he/she disagrees with it? There are no easy answers. Factors that workers ought to take into account in deciding whether to attempt the modified work include:

• whether the work is literally unsafe for the worker and co-workers (climbing ladders for a worker with a knee injury or working with machines for a worker with blackouts), or whether the work is merely inconsistent with restrictions and may result in a recurrence,
  
• the availability of alternative sources of income such as Employment Insurance sick benefits in the event that the worker does not return to work and WSIB benefits are cut,
• in the event that the worker does return to work, the necessity of documenting by letter the work returned to, any changes to the work after return and any changes after the return to work in the worker's condition (by report from a physician ideally).

Modified work offers carry little risk for employers, and huge risk for workers. For employers, if the work is refused, the worker's benefits are likely to be suspended for non co-operation. If the worker returns to work, the employment situation may be difficult but the claims cost will diminish. For workers on the other hand, a modified work offer poses risks of re-injury upon a return to work, and a suspension of benefits upon refusal.

Next up: Return to Work and Non-Compensable Conditions

WSIB Chair's Consultation Report

The Chair's Consultation Report was released recently. The report suggests that cost containment measures (i.e. benefit cutbacks) are necessary because of the Board's poor economic situation. What the report does not say is that the Board's poor economic situation is due to historically low employer assessments and WSIB investment losses in recent years. In essence, Ontario employers benefited during the good times from WSIB investment practices (with lower assessments than what would otherwise have been required to fund the system thanks to high investment returns) and now seek to avoid responsibility in the bad times by pleading poverty. Like Wall Street bankers, it does not look good on them.

More on Labour Market Re-Entry

The Board recently released a "Value for Money" Audit (prepared by accounting firm KPMG) of its LMR services. The statistical portrait of the outcome of LMR services in 2007 and 2008 supports the view that the Board is becoming progressively more unrealistic in its expectations of what workers can achieve. The portrait shows that 19.5% fewer workers were found to be unemployable in 2008 than in 2007, but fewer workers were actually working at the end of the plan. Under 50% are actually working at both the 6 month and 18 month point after completion of the plan. With the onset of the deep recession in September, 2008, this decline in employability is what one would expect.

The Audit recommends changes to the legislation, which will have the effect of reducing already low worker benefits. The fairer alternative, of course, is to increase historically low employer assessments.

WSIB Narcotic Strategy- Where is the alternative?

The WSIB has introduced a new narcotics strategy, which limits narcotic authorization to short-acting narcotics in the first 12 weeks after injury or recurrence. This strategy does not apply to workers in the Serious Injuries Program or with occupational disease. The attempt to avoid long-term narcotic dependence, while laudable, has not come with a recognition of the need for increased non-narcotic treatment, and in particular alternatives such as physiotherapy, chiropractic, massage therapy and acupuncture.

The WSIB considers these alternatives when rendered after 12 weeks as maintenance treatment. Maintenance treatment is allowed sometimes by the Board, but a concerted effort is usually required to obtain authorization for maintenance treatment. Even more important, the fees paid to these practitioners is usually less than one-half the typical fee, so many do not accept WSIB cases or are reluctant to provide long-term treatment and the concerted effort to obtain authorization for "maintenance treatment" is usually about a small amount of reimbursement. Physiotherapists and acunpuncturists are paid $24 and $38.78 per visit respectively. Massage therapists are paid $50 per visit. Chiropractors are paid $25 per visit, after the initial visit.

There are consequences to the Board's approach to long-term treatment. The inadequate pain control mechanisms lead to increased incidence of depression and other psychological conditions for workers. This does not benefit anyone. Another effect is a tricky one. If a worker suffers a recurrence years after the accident, the Board will look at documented evidence of visits to doctors or other health care practitioners as significant evidence of continuity. Workers often prefer to not see doctors on a regular basis, for any number of good reasons, but the Board's practices results in a powerful incentive for workers to regularly meet with a busy family doctor to discuss ongoing long-term problems. This is an unhealthy situation for both the worker and the family doctor.

Upcoming event

Gary is co-chairing the Law Society of Upper Canada's program Proven Strategies to Enhance Your WSIB Practice, being held at the Donald Lamont Learning Centre at the Law Society of Upper Canada (and simultaneously webcast) on March 4, 2010 from 9:00 a.m. to 12.:30 p.m. This program is designed for paralegals and lawyers with intermediate workers' compensation skills and knowledge. The cost is $210 plus GST and interested persons can register at http://ecom.lsuc.on.ca/cle

Labour Market Re-entry- What it means

The simple answer is "vocational rehabilitation"- steps taken for an injured worker who must change careers as a result of an injury. The simple answer is unfortunately profoundly misleading.

The major impact of labour market re-entry (LMR) decisions is on the long-term benefits of the worker. Workers who must change careers by virtue of an injury do not, on average, return to full-time employment. Most either do not work at all, return to part-time or sporadic employment, or occasionally set up a small business. The WSIB systematically ignores this reality, and attempts to use the LMR process for its justification. As part of this process, the Board attempts to enlist the agreement of the worker.

The way the process works is as follows. The WSIB Case Manager refers the file to a vocational rehabilitation agency with a set of restrictions for the worker. A representative of the agency (unfortunately called an LMR Case Manager) then typically arranges for an assessment of the worker's skills and abilities, with paper and pencil testing. The LMR Case Manager will then propose two "Suitable Employment or Businesses" (SEB), which match the worker's theoretical residual abilities and the requirements of classes of job, and the steps needed to attain these goals. Taken together, these SEB goals and the steps needed to attain them are called an LMR Plan. The LMR Plan is then sent to the WSIB for approval. Once the WSIB makes a decision, the worker has 30 days in which to appeal.

The catch is this. Workers receive full loss of earnings benefits while co-operating in the steps of the LMR plan. Once the plan is over, the WSIB will generally consider that the worker is capable of earning typical wages in full time employment in the SEB and reduce the worker's loss of earnings benefits, regardless whether the worker is actually employed. The higher the typical wages for the SEB, the greater the reduction is.

This means that workers must be especially careful about the viability of proposed labour market re-entry plans, notwithstanding that they may seem enticing, and take prompt steps to record in letters to the WSIB their disagreements with these plans.