SCHEDULE 2 EMPLOYERS GROUP

Transcription

1 SCHEDULE 2 EMPLOYERS GROUP July 7, 2017 Consultation Secretariat Workplace Safety & Insurance Board 200 Front Street West Toronto ON M5V 3J1 Via Re: Chronic Mental Stress ( CMS ) Policy Consultation Dear Sir / Madam: The Schedule 2 Employers Group has been in existence for over 25 years with a mandate to represent Schedule 2 employers in Ontario in discussion with the WSIB, Ministry of Labour and other relevant bodies. We are a not-for-profit association comprised of Schedule 2 employer representatives from public and private sector organizations from across Ontario. Members are workplace health, safety and disability management professionals who are interested in collaboration on issues related to workers compensation and occupational health and safety. The Schedule 2 Employers Group represents the interests of diverse large and small employers classified under Schedule 2 of the 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 for as long as benefits are paid, rather than 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 its policies. The Schedule 2 Employers Group is writing to provide you with our submissions with respect to the draft Chronic Mental Stress and Traumatic Mental Stress Policy ( ) and with suggestions with respect to the management of mental stress claims overall. We agree with the submissions and questions raised by the Office of the Employer Adviser in their letter dated June 8, We ask that they be given serious consideration by the WSIB. We have some additional points that we would like to add which are as follows: Financial Responsibility Section 1 of the Workplace Safety and Insurance Act reads as follows: The purpose of this Act is to accomplish the following in a financially responsible and accountable manner:

2 Re: Chronic Mental Stress ( CMS ) Policy Consultation 2 1. To promote health and safety in the workplaces, 2. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease. 3. To facilitate the re-entry into the labour market of workers and spouses of deceased workers. 4. To provide compensation and other benefits to workers and to the survivors of deceased workers. In Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289 (CanLII), the Ontario Divisional Court reviewed s. 1 of the WSIA and wrote: I accept the conclusion of the Tribunal majority that the Workplace Safety and Insurance Act creates a workplace insurance plan and not a social benefits scheme. I would simply add that the legislature has mandated that this insurance plan is to be administered in a financially responsible and accountable manner. Applying insurance principles is consistent with the legislative purpose. The legislation discusses income replacement, permanent impairment awards, rehabilitation services and health care measures for injured workers. It is trite to observe that the Act is funded by employers and that in return workers gave up the right to sue. Finally the legislation does not reference social benefits. (paragraphs 29 and 30) It is submitted that the WSIB policy with respect Traumatic or Chronic Mental Stress needs to be drafted in such a way that it reflects the fact that the WSIB system in Ontario is exclusively employer funded and was set up to provide compensation for work related injuries and occupational diseases. The expansion of entitlement to include chronic mental stress needs to be administered in such a way that employers are not expected to fund non-worked related mental health conditions. This was never the purpose of workers compensation and would be contrary to the requirements of section 1 of the WSIA. The challenge is how to deal with that when many mental health conditions are multi-causal and medical information is often highly subjective with limited objective evidence to confirm diagnosis and verify a cause. In the interest of fairness to employers who fund the WSIB system concrete steps need to be taken to ensure that entitlement is granted only for work-related cases of traumatic and chronic mental stress. Standard of Proof The WSIB has chosen the significant contribution test for traumatic and chronic mental stress claims. It is important that the significant contribution test equates to an important and robust standard. Some WSIAT decisions have interpreted the significant contribution test to mean a significant contributing factor, something more than de-minimus and have taken the position that you can have several significant contributing factors only one of which need be work-related. (See WSIAT Decision # 280, as an example) This is lowering the bar too far when dealing with multi-causal mental health conditions in an employer funded workers compensation system. It is submitted that the significant contribution test should mean that for entitlement to be granted the work-related event or series of events was the most important factor in the onset of the worker s mental health condition. It need not be the only factor but it needs to be the most important factor. If work is not the most important factor in the onset of the worker s mental health condition then WSIB entitlement should not be granted. There are private and company sponsored benefit plans and social benefit programs to provide financial compensation to those impacted by mental health conditions where work was not the most important factor.

3 Re: Chronic Mental Stress ( CMS ) Policy Consultation 3 Substantial Work-Related Stressor The draft policy provides as follows: A work-related stressor will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances. The wording suggests that in reviewing whether there was a substantial work related stressor a comparison should be made to the demands placed on others doing similar work. If the policy is suggesting that the average worker test should be applied then this should be clearly stated. Diagnostic Requirements The requirement for a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) is appropriate for the adjudication of cases of traumatic mental stress or chronic mental stress. Unfortunately, the policy does not make it clear who exactly is qualified to provide the DSM diagnosis. Have all family physicians received sufficient professional development training to be current and competent to provide a DSM diagnosis? Are there any prerequisites for providing a DSM diagnosis? Who else besides licensed Psychologists and Psychiatrists can provide a DSM diagnosis and have it accepted by the WSIB? In the WSIB Operational Policy Document # dealing with entitlement to Psychotraumatic Disability it provides as follows: If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a workrelated injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure. Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition. It is submitted that when dealing with cases of traumatic or chronic mental stress the same provisions should apply. For entitlement to be granted the disability/impairment needs to be manifest within 5 years of the work-related event or events. Similarly, entitlement for traumatic or chronic mental stress should be considered to be a temporary condition and only in exceptional circumstances should this type of disability or impairment be accepted as a permanent condition. Medical Information In the OEA submission it was recommended that the WSIB develop a form that is structured in such a way to gather the required information. This is an excellent suggestion. There needs to be some detail and rigour around what is acceptable medical evidence in order to ensure proper and careful adjudication. The WSIB needs to develop a routine of requiring health care practitioners reporting a claim for traumatic or chronic mental stress to submit clinical notes for a prior period of 5 years. This information is needed in order for the WSIB to properly adjudicate mental stress claims. Is the

4 Re: Chronic Mental Stress ( CMS ) Policy Consultation 4 worker s mental health condition the result of significant work-related stressors or are there non-work related factors that need to be considered and evaluated? The Schedule 2 Employers Group has been asking the WSIB to develop a Cognitive Abilities form for years. The time for action is now. The existing WSIB Functional Abilities form is adequate for physical injuries but practically useless for mental health conditions. The WSIB should work with the College of Physicians and Surgeons as well as worker and employer groups to develop a useful form to assist in the return to work process. Allowance on an Aggravation Basis Where there is evidence that the worker suffered from a pre-existing mental health impairment then entitlement to WSIB benefits for chronic or traumatic mental stress needs to be allowed on an aggravation basis. When a claim is allowed on an aggravation basis then benefits should only be paid for the period of the acute episode until the worker s condition returns to the pre-accident state. In order for the WSIB to make an informed decision it is imperative that Case Managers routinely obtain the medical clinical records for the preceding 5 years. Mental Health Strategy The expansion of mental stress entitlement should serve as a call for action to the WSIB to improve their ability to assist injured workers and employers with mental health claims. At present mental health claims are amongst the most difficult to manage with prolonged periods of absence and high costs all too common. This has to change or the financial burden on the system will negatively impact Ontario s ability to attract and retain businesses of all kinds. The WSIB needs to do the following: Provide better mental health training to WSIB staff managing mental health claims with respect to the range of mental health conditions encountered in WSIB cases. Make it is easier for the workplace parties to communicate with the assigned Case Manager by clearly identifying the name of the adjudicator and providing their direct phone number. It is not good enough to have correspondence from the Operations Division and a general phone number. Establish more Speciality Clinics that are able to diagnose and provide treatment recommendations geared towards assisting injured workers to return to work. All too often workers with mental health conditions are kept off work too long in a very passive treatment process with no good quality independent medical oversight to determine if it is safe for them to return to work in a gradual and supportive process. Work with the Ontario Government and the medical profession to increase the number of Psychologist and Psychiatrists. The delays for good mental health treatment are unacceptably long and this is negatively impacting the duration of claims and the success of return to work efforts. Many injured workers stay off work too long while waiting for treatment and when treatment is started it is often too spread out and infrequent to be beneficial. This must change! The WSIB needs to work with the medical profession to develop a return to work mindset when it comes to mental health claims. While there are some skilled Psychiatrists and Psychologists that are able to provide practical and reasonable return to work recommendations it is relatively rare ability. The concept of better at work is possible in mental health cases but it requires some significant improvements from all parties.

5 Re: Chronic Mental Stress ( CMS ) Policy Consultation 5 Thank you for considering the submissions and suggestions provided on behalf of the Schedule 2 Employers Group. Please keep us informed of further developments. Yours truly, Laura Russell Chair, Schedule 2 Employers' Group