SCHEDULE 2 EMPLOYERS GROUP

Transcription

1 SCHEDULE 2 EMPLOYERS GROUP October 27, 2012 Mr. Jim Thomas Chair WSIB Benefits Policy Consultations c/o Consultation Secretariat 200 Front Street West, 17th Floor Toronto, Ontario M5V 3J1 Re: Dear Mr. Thomas: Thank you for the opportunity to provide input in the WSIB policy renewal process. The Schedule 2 Employers Group represents the interests of diverse large and small employers classified under Schedule 2 of the Workplace Safety and Insurance Act (WSIA). Our member employers include the provincial government and Crown agencies, municipalities, school boards, federally regulated employers, and employers covered by the federal Government Employees Compensation Act (GECA). As Schedule 2 employers pay the actual costs of claims (plus a WSIB Admin fee) for as long as benefits are paid, rather then premiums based on experience ratings, our members and their stakeholders (including taxpayers and investors) have a long-term financial interest in how the WSIB adjudicates claims and applies it s policies. Following consultation with our members, a few common themes emerged about the desired outcomes of the policy review. Our members strongly support the objectives of the WSIA to provide a no-fault insurance system to support our employees injured in the course of employment. We are also strong advocates for returning injured workers to the workplace, whenever possible.

2 - 2 - At the same time, we are concerned that the WSIB does not conduct proper due diligence in adjudicating claims to the detriment of the insurance plan and those who fund it. The WSIB, and by default Schedule 2 employers, are liable to pay benefits for an allowed claim for as long as there is a loss of earnings or a permanent impairment. In the case of a worker injured at age twenty-five, there may be a liability for over sixty years and costs may be in the millions of dollars. For this reason, each claim should be adjudicated as if it is a million dollar decision. It is important that the WSIB develop unambiguous policies and gather as much information as possible on the injuring process and a worker s medical history at the outset of a claim. Currently, adjudicators assess whether there is sufficient information on file to adjudicate a claim. We submit that adjudicators should be assessing whether all the relevant available information has been gathered so that an informed, quality decision can be rendered. This would include not just the Form 6, 7, and 8, but also a review of the workers previous WSIB claims, and family doctor clinical notes dating back perhaps several years, in addition to appropriate medical specialist and medical consultant opinions. It is not reasonable customer service if a claim is allowed or denied within an arbitrary timeframe only to commence a multi-year process of reviews, appeals, and uncertainty about entitlements and obligations. If policies are clear and more time is spent gathering and assessing relevant available information at the initiation of a claim, both worker and employer communities are likely to have greater confidence in the correctness of decisionmaking. This should reduce appeals and increase customer satisfaction. One objective way of assessing the clarity of policies and the effectiveness of information gathering at the operations level is to review the reversal rates of decisions at the WSIB Appeals Branch and the Workplace Safety and Insurance Appeals Tribunal (WSIAT). As WSIAT is the final decision-making level under the WSIA, the Schedule 2 Employers Group would like to see the policy consultation process incorporate the key decision-making principles of WSIAT into Board policy or the Board decision-making process. While claims must always be assessed on their individual merits, one of the stated objectives of WSIAT is to promote consistent decision-making, particularly when interpreting legislation and Board policy. 1 It is thus frustrating for both workers and employers when the Board makes a decision that is inconsistent with the prevailing WSIAT jurisprudence and the position of Board decision-makers is that they are not bound by previous WSIAT decisions, even though they will be bound by the likely WSIAT reversal of the issue in dispute. At the same time, if the WSIB has concerns that WSIAT is interpreting it s polices too broadly or too narrowly, the Board has an obligation to consult with WSIAT and stakeholders and to amend it s policies to clarify the correct interpretation for all decision-makers, including the Tribunal. Our members believe that polices should be written and applied in a manner that does not create disincentives to returning to the workforce nor put injured workers in a more advantageous position then their colleagues who have not suffered a workplace injury. We 1 David Mullan 'Consistent Decision-Making A Core Value of High Volume Jurisdiction Tribunals and Agencies?' Ontario Workplace Safety and Insurance Appeals Tribunal, 25th Anniversary Symposium, 14 December 2010

3 - 3 - also believe that the greatest benefit for injured workers is a sustainable insurance system. For these reasons, we believe that polices should provide a clear distinction between the economic impacts of a compensable condition and the economic impacts of workplace/labour market conditions. It is important that a distinction be maintained between the purposes of a wage loss insurance system and social insurance. A more detailed commentary is provided below on the specific policies under review. As you will likely hear very different perspectives from worker communities and employer communities, we emphasize the importance of objective and impartial data gathering and analysis to the review process. The Schedule 2 Employers Group would be pleased to assist with further research and consultation undertakings. We would also appreciate being informed of developments as they occur, and in advance of implementation. Yours truly, Laura Russell, B.Sc., CRSP Chairperson

4 - 4 - RECURRENCES (WSIA s.13) The Schedule 2 Employers Group provides the following comments on the Board s Recurrences policy: 1. Our members support the principle that employers are liable for the harm that they cause. However, there is a consensus that the policy on Recurrences is being adjudicated in an overly broad manner, with many injuries and degenerative changes being incorrectly allowed as recurrences. It is the experience of our members that this is because insufficient information is gathered at the adjudication stage. As previously noted, the WSIB generally asks: Is there sufficient information on file to adjudicate the claim? The extent of the investigation is often to review the Form 6, 7, and 8 and a make telephone call to the worker. Instead, the WSIB should ask: Has the WSIB investigated this claim sufficiently so that the WSIB can render a quality decision in terms of fairness to the parties? The investigation should properly include gathering medical and occupational evidence to fully assess continuity, medical compatibility, and other possible explanations for a claimed recurrence. This may include a more thorough questioning of the worker and current/past employers, obtaining family doctor clinical notes, X-rays and MRIs, specialist reports, and files from third party insurers. During the appeal process, this type of information is usually obtained and frequently leads to the reversal of entitlement to a recurrence. In cases in which entitlement to a recurrence stands after the review of further information, the employer is usually satisfied that it is correctly paying for the costs of the recurrence. 2. The Schedule Employers Group has a number of concerns with the current application of clinical compatibility in the adjudication of recurrence claims. The predominant concern arises from a lack of rigour in investigating and assessing medical compatibility with the original compensable injury. In addition, it is recommended that the policy more clearly define the criteria for allowing a temporary or permanent change in a medical condition as a recurrence. It is submitted that the Board adopt, in policy, WSIAT s approach of asking if there was substantial recovery from a compensable injury to determine/assess whether a worker has a new injury (compensable or non-compensable) or a recurrence. It is further submitted that the Board should adopt, in policy, the WSIAT assessment of whether or not there is an intervening cause to explain a recurrence. It is recommended that the WSIB develop and utilize a table of normal aging change which would be applied to discount normal aging change from the claimed recurrence unless the medical evidence indicates, on the balance of probabilities, that the deterioration or change can be attributed to the compensable condition. The principle of

5 - 5 - age related degeneration is already reflected in the calculation of other benefits, notably Non-Economic Loss awards. It is recommended that the Recurrences policy be amended to require that a Board medical consultant s opinion be obtained on clinical compatibility as a mandatory step in adjudication or alternatively, as a mandatory step at the request of a worker or employer.

6 - 6 - WORK DISRUPTIONS (WSIA s. 43) The Schedule 2 Employers Group offers the following comments on the Board s Work Disruption policies: 1. It is recommended that the work disruption suite of policies be consolidated into one policy which is organized in a logical decision-making sequence starting with the first question to ask, then commentary on the question, then the second question to ask, then commentary on the question, and so on. 2. It is recommended that Board policy clearly state as a central principle of adjudication that WSIB benefits should not place an injured worker in a more advantageous position then if he or she had not been injured. 3. It is recommended that in a strike or lock-out situation, loss of earnings benefits should not be automatically payable to an injured worker (that is at work) because the primary reason for the loss of earnings is the labour dispute. For example, in most strike situations, the union members expect that the strike will be of short-duration and most do not immediately obtain alternative employment. It is only when a labour disruption becomes prolonged that employees begin to look for alternative employment. Loss of earnings benefits should only be payable after a labour disruption has continued for an extended period of time, such as four or eight weeks. Once the threshold has been reached, benefits should only be payable if it is determined that the injured worker is disadvantaged in the general labour market as a result of his or her compensable condition. In cases in which the worker has the option of going to work with the employer during a strike, WSIB benefits should not be paid, even if the worker would have to cross a picket line. In this situation, the loss of earnings is clearly the labour dispute and the decision of the worker to participate in the strike. This would also apply to situations in which suitable work has been offered by the employer and is available during the strike but the return to work is delayed because the worker elects to participate in the strike. Illegal strikes should not attract benefits, as the loss of earnings arises from the decision of the worker to participate in illegal activity. Similarly, lockouts imposed by employers in response to complications caused by strike activity or illegal strike activity should not attract benefits. 4. It is recommended that loss of earnings benefits not be payable for scheduled, temporary (e.g. less than four weeks) work disruptions affecting workers in positions similar to that held by an injured worker. For example, annual summer or holiday season shut downs, or shut downs for factory retooling. In the majority of these

7 - 7 - circumstances, employees generally rely upon leave benefits or employment insurance for income support rather than seeking alternative employment. 5. In circumstances in which benefits are paid during a work disruption, they should be paid on the basis that the worker is not capable of finding similar alternative employment in the labour market. Accordingly, when the worker has achieved a substantial recovery, benefits should be reduced or ended so as not to place the worker at an advantage over colleagues not in receipt of WSIB benefits. In cases for which a return to work with the accident employer is not anticipated, work transition activities should begin. 6. In circumstances where work transition services are offered but the worker declines to participate or does not properly participate, then benefits should be reduced to reflect high average earnings. 7. The current policies state that If the worker is receiving benefits from other sources, i.e., EI welfare. [etc], the worker must repay the other benefits. It is recommended that the policy state that strike pay should be deducted from any WSIB benefits. 8. The current policies state that workers who have recall rights under a collective agreement can defer participating in an LMR plan for up to 12 months from the date that it is determined that an LMR plan is necessary If a worker chooses to defer the LMR plan, benefits are paid based on the worker s SEB. It is recommended that the policy be more specific about what SEB wage rate should be used. It seems appropriate that entry level SEB wages should be used here. But that once the LMR plan is finished (or abandoned), then average SEB wages should be used. 9. It is recommended that the work disruption policy incorporate the Board s current practice on non-compensable disabilities into the employability checklist. Although it is not written in policy, the WSIB generally takes the following approach which we endorse: i. If a worker loses an arm in a non-compensable accident, then loses the other arm in a workplace accident, the employer is responsible to pay for all the resulting wage loss; ii. In contrast, if a worker loses an arm in a workplace accident, then loses the other arm in a non-compensable accident, the employer is not responsible to pay for resulting wage loss. 10. The current policies provide factors to look at to determine if the worker s employability is clearly affected by the work-related impairment/disability. One question asked of

8 - 8 - decision-makers: Is the worker still receiving WSIB approved active (non-maintenance) health care treatment on a frequent basis? It is recommended that the policy specify that any prior adjudication providing ongoing treatment should not be determinative of this question as the WSIB tends to extend treatment approval while awaiting a REC or specialist report or to err on the side of caution. The clinical need for ongoing treatment is not always the primary consideration. 11. The current policy (# ) addresses worker non-cooperation in conducting a job search following a work disruption. It is recommended that the sincerity and appropriateness of job search efforts be included as a consideration. For example, the worker may be sending out résumés which are unlikely to attract a positive response from employers, or the worker may reply to interview questions in a self-sabotaging way by focusing on his or her pain or permanent restrictions. 12. With respect to the question: Is the worker s loss of earnings caused primarily by the worker s work related impairment/disability, the current policy (# ) provides a table of factors suggesting employment situation. It is recommended that this list include the additional factors: The worker has been asked to relocate to suitable work in accordance with the employer s policies and/or practices and has declined; The worker has declined the opportunity to participate in internal job matching efforts such as redeployment or bumping, The worker has voluntarily removed himself or herself from the employment relationship and future return to work opportunities, for example by retiring or resigning. This would include opting for early retirement or enhanced severance instead of participating in internal job matching efforts. 13 As discussed in more detail below, the WSIB recognizes permanent impairments more frequently than compensation Boards in other provinces and, in our submission, it often recognizes permanent impairment too early in the recovery process. Therefore, when determining if a worker s employability is affected by his or her permanent impairment and functional restrictions in work disruption cases, the policy should require decisionmakers to assess all the facts in context. For example, many workers with a NEL award and permanent restrictions are still capable of performing all or most of their pre-injury duties or are working in a different position with no or few accommodations. In these cases, the permanent impairment

9 - 9 - does not likely impact the ability of the worker to find similar employment in the labour market during a work disruption and benefits should not be payable. 14. The same table in Policy # as referred to above provides a list of factors suggesting work related impairment/disability. This list states that the decision maker should look at the significance of the worker s permanent impairment(s)/ disability. As stated above, the extent to which a permanent impairment affects employability in similar positions in the labour market depends upon the context. In addition, the current status of the employee s medical condition should be considered, as it may have changed since the time of the permanent impairment rating for better or for worse. The policy should specify that the presence of a permanent impairment is not determinative of entitlement to loss of earnings benefits or work transition benefits. For example, a double leg amputation would attract a high permanent impairment award, but in a knowledge based office job, the high permanent impairment award may not be very relevant to the question. To assist with the decision-making process, it is recommended that the WSIB develop a questionnaire for employers, employees, and medical practitioners to complete as a starting point for gathering the information. There are a number of inquiries that will need to be made to determine whether benefits should be paid in these cases and for how long. One question we would like to see included is whether the WSIB s permanent restrictions have been lifted at work by the workplace parties (it is generally the position of the WSIB that once a permanent impairment has been rated and restrictions provided, the WSIB will not lift the restrictions, but the workplace parties are free to agree to do so if an improvement in the worker s condition warrants this).

10 PERMANENT IMPAIRMENTS (WSIA s. 46) The Schedule 2 Employers Group offers the following comments on the Board s Permanent Impairment policies. 1. As mentioned in the consultation document, the WSIB assigns permanent impairment more often than compensation boards in other Canadian provinces. In fact, in some provinces, permanent impairment is very rare (i.e. Saskatchewan). In addition, a permanent impairment rating and permanent restrictions are not adjusted to reflect subsequent improvements in a worker s condition. There is no apparent business case for quick adjudication of Maximum Medical Recovery and permanent impairments. For example, back injuries and whiplash can take a long time to fully heal and a functional impairment that may be present at 12 months post-injury may not be present at 24 months post-injury. Psychological conditions may also improve significantly over the long term with proper treatment. Therefore, it appears that the WSIB may be declaring permanent impairments to early in the recovery process. Alternatively, in psychological claims, the WSIB sometimes refuses to declare MMR and permanency even though treatment has continued for years with no meaningful improvement and no reasonable prospect of a return to work. This makes it difficult for the worker to move on from the disablement and for the parties to end their employment relationship. It also incurs significant treatment costs that may not be justified. It is recommended that maximum medical recovery only be determined based upon a specialist s opinion or the opinion of a Board medical consultant. It is also recommended that a permanent impairment rating and payment not be finalized until a standardized point in time, such as at 24 months, to correspond with the return to work obligation or 72 months to correspond to the LOE lock-in date. 2. It is recommended that when a worker requests a permanent impairment review for a permanent worsening, the Board take into account all the results in recalculating the NEL award. For example, if some Range of Motion ratings have improved and some Range of Motion ratings have worsened, the entire rating be recalculated. Currently, improvements are not considered and only the results indicating a worsening are factored into the reassessment. This provides an inaccurate and inflated rating of the level of impairment. It is further recommended that the policy provide for increasing or decreasing a permanent impairment rating based upon changes in a worker s medical condition.

11 It is not disputed that compensable conditions can deteriorate over time. However, the body also ages naturally over time. It is submitted that the Board could improve how it distinguishes compensable from non-compensable deteriorations. It is recommended that the Board conduct a more thorough investigation and evaluation of the medical information prior to allowing a permanent worsening of an impairment. As mentioned previously, all relevant information required to make a quality decision should be reviewed. Medical evidence, such as new patient information forms, specialist reports, clinical notes, and x-rays and MRIs should be obtained and reviewed to distinguish between degenerative changes, non-compensable injuries, and the deterioration of a compensable condition. It is recommended that all cases being considered for permanent impairment be referred to a specialist or Board medical consultant for an opinion on work-relatedness prior to making a decision. 4. It is recommended that the permanent impairment policies should be combined into one policy, and if it necessary to have separate policies, the one main policy should reference all other applicable policies.

12 AGGRAVATION BASIS (WSIA s. 43(1)) The Schedule 2 Employers Group offers the following comments on the Board s Aggravation Basis policy. 1. As mentioned previously, the WSIB is not proactive about obtaining information which may assist in coming to a good quality fair decision. It is recommended that decision-makers conduct a thorough review of all relevant information prior to rendering a decision on entitlement on an aggravation basis, particularly in claims for which the employer has raised concerns. The WSIB should obtain information regarding prior or co-existing conditions where it appears that such may exist or where such is known to exist and where the information may be relevant. Examples again: medical chart notes, new patient forms, test results, 3 rd party insurance files, etc. It should not be necessary to go through the appeal process to obtain a thorough review of all the evidence. A thorough review at the operations level would likely reduce the number of employer appeals on aggravation decisions. 2. Our members support the thin skull doctrine and do not seek a Schedule 2 equivalent of SIEF relief. At the same time, we submit that the Board and its policies could more clearly articulate that employers are liable for the harm they cause, but not more than this. It is felt that in addition to a more thorough gathering of medical evidence, many issues related to aggravation could be addressed by a more rigourous assessment of whether an injury or disablement arose out of employment when it appears to arise in the course of employment. When adjudicating initial entitlement, decision-makers frequently do not go beyond the course of employment test to assess whether there is a chance event or injuring process that can be attributed to employment. For example, when a knee gives out without an injuring process or an employee experiences the onset of back pain while bending over, the worker s job duties should not be seen to cause the injury. Therefore, it is recommended that decision-makers more rigourously assess initial entitlement for aggravation claims, including an assessment of whether there is a injuring process caused by job duties and an assessment of the compatibility of the diagnosis with the injuring process (e.g. is a complex meniscal tear with chondromalacia the result of twisting on the stairs).

13 It is recommended that an assessment of the extent of work-relatedness and compatibility be referred to a Board medical consultant as part of the adjudication process, particularly when a permanent impairment award is being contemplated. It is recommended that the policy specifically address thin skull cases, crumbling skull cases and cases for which there are pre-existing degenerative conditions, and that WSIAT s approach to these issues be taken into account in the policy and decisionmaking. 3. The current policy states that information about the prior condition can be obtained by reviewing 4 types of documents. To this list, we recommend that the policy be amended to include relevant files held by 3 rd party insurers. 4. In some claims, initial entitlement is granted for a new injury and the worker is later found to have a degenerative condition. As the condition was not symptomatic at the time of the workplace accident, it is not referred to as a pre-existing condition, yet the condition may affect the severity, duration, or permanent impairment level of the compensable condition. These cases can become very confusing and unfairly burden employers with costs for which they are not responsible. While a pre-existing condition may not have caused disablement prior to an injury, that does not mean that it does not impact the severity and course of a compensable injury. It is recommended that either the Aggravation policy or policies on pre-existing impairment address the impact of pre-existing degenerative changes in the same way that symptomatic pre-existing conditions are factored into benefit entitlements. The WSIAT s approach of looking at the question of whether the work injury materially advanced the pathology is a good approach. For example, a worker had a desk job prior to the work injury without disablement. The worker then transfers to a more physical job which he or she can t do. The worker then claims an injury at the time of the transfer to the new job. However, the real issue is that the worker could not manage the job change, rather than the worker got injured by the job change. It is recommended that the WSIB adopt the approach of some jurisdictions to apportion responsibility and benefits some to the workplace injury, some to pre-existing condition(s), or between employers, particularly when a claim is allowed as a disablement on an aggravation basis due to job duties over time. 5. It is recommended that the policy make it clear that if a pre-existing condition that impacts upon the compensable injury is diagnosed subsequent to an initial entitlement decision, the Board can review and adjust benefits to factor in the impact of the preexisting condition.