295 Benita Court Oakville Ontario L6J 4L3 905 337 8607 farrell@concentum.com November 30, 2012 Mr. Jim Thomas Chair 2012 Benefits Policy Review Workers Safety and Insurance Board 200 Front Street West Toronto, Ontario M5V 3J1 Re: WSIB 2012 Benefits Policy Review Federally Regulated Employers Transportation and Communication (FETCO) represents the major federally regulated companies and employers associations in the transportation and communications sectors in Canada. FETCO members collectively employ approximately 430,000 employees. A list of FETCO members is attached as Appendix A. FETCO s purpose is to influence positive public policy outcomes for member companies operating in the federal jurisdiction of Canada covering all laws and regulations pertaining to employment and human resources in the workplace. The employees employed by FETCO member companies are covered by workers compensation benefits in the provinces in which they operate. FETCO members have established a Workers Compensation Committee consisting of management representatives with responsibility for workers compensation. The purpose of the FETCO Workers Compensation Committee is to interact cooperatively with the provincial workers compensation boards across the country to ensure that workers compensation laws, regulations and practices deliver high quality and efficient services for the mutual benefit of employees and employers. FETCO is pleased to provide our comments and recommendations respecting the WSIB 2012 Benefits Policy Review. Our comments and recommendations cover the following: Recurrences Work Disruptions Permanent Impairments Aggravation Basis General Conclusions and Recommendations
RECURRENCES A) Generally the WSIB asks this question: Is there sufficient information on file to adjudicate the claim? Instead, FETCO submits the WSIB should ask this question: Has the WSIB investigated this claim sufficiently to render a proper and fair decision? The Board, as an investigative agency, has an obligation to investigate and scrutinize. To do so would limit the amount of speculation in the decision making process and in turn improve the likelihood of fair and equitable outcomes. The integrity of the adjudicative process relies on this obligation. It is very difficult to get the WSIB to investigate continuity, medical compatibility and other possible causes of a problem. The WSIB often does not ask the right questions. The WSIB often does not ask the right sources of information (only calls the employee). The WSIB very rarely obtains by Order other files relating to the same issue such as the files of a third party insurer. And the WSIB often does not follow up sufficiently. When the employer protests, the response is that there is sufficient information on file to make a decision and they are content with the information as-is. Also, it is often necessary to go up through the appeal system to finally obtain the missing information that is key (such as doctor s chart notes, an MRI or other test, information from annual physicals, new patient forms, and files of a third party insurer). When or if such documents come to the file, frequently, the information leads to the overturning of a claim or recurrence allowance. When the additional information does not lead to an entitlement reversal in cases where it should, the employer, who is paying for the claim, is assured that the bill belongs to the employer, i.e. is not granted the required credit or reimbursement. Policy that enforces the need to investigate thoroughly would be helpful in ensuring proper and fair decisions at the adjudication level. B) The use of the term clinical compatibility is often not supported by clinical/medical information, which should be obtained at the outset. The availability of Board doctor s for comment is something which waxes and wanes constantly at the WSIB (at times it is easy to access these opinions on the claims manager s request and/or the employer s request, and at times it is virtually impossible). We submit that the opinions of Board doctors are often essential to ensure a proper and fair decision, namely by ensuring Case Managers rely on facts rather than assumptions. Also, such medical opinions should be available on the request of an employer who makes a reasonable case for the need. Policy that recommends the referral for a medical opinion (Board doctor) in cases where more detailed medical information is required would assist in eliminating administrative problems,. C) FETCO submits that the approach sometimes used by WSIAT of asking if there was substantial recovery in order to determine if the situation is a new injury or a recurrence is a good approach. D) FETCO submits that the WSIAT approach of asking if there was an intervening cause is a good approach. 2
WORK DISRUPTIONS A) The work disruption suite of policies should be consolidated into one policy 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. B) A central principle should be that WSIB benefits should not be a windfall, in effect, in the case of a work disruption. C) Issues arising from illegal strikes and/or crossing picket lines should not be compensable, as in such cases, the loss of income is clearly due to the labour dispute, not the injury. Policy should help streamline and simplify the issues on work disruption and have a clear focus on employability as it relates to the workplace condition. PERMANENT IMPAIRMENTS A) The WSIB assigns permanent impairment more often than the WCBs in other Canadian provinces. In fact, in some provinces, permanent impairment is very rare (i.e. Saskatchewan). In addition, it is not unusual for the WSIB to rate a worker for a permanent impairment and to provide permanent restrictions and then for the workplace parties to come to an agreement to drop or reduce the WSIB s permanent restrictions based on a FAE or an updated medical report, etc. Therefore, it appears that the WSIB is assigning permanency too easily or too early. Certainly, a good argument can be made for the need for quick adjudication on LOE issues, but not to rush to declare MMR and permanency. B) Occasionally, in psychological claim cases, the WSIB refuses to declare MMR and permanency even though the claim began years ago, the employee has been off for years, and the medical reports consistently state (over a long period of time) that the prognosis for return to work or improvement is poor, and even though the employer is asking for MMR and permanency to be declared. These situations are inexplicable, especially since the WSIB is otherwise usually too quick to declare MMR and permanency. In psychological cases, the parties need to move on(e.g. termination of the employment relationship), which is difficult until permanency is declared. Cases like this need to be finalized within a reasonable timeline based on the facts of the file. C) A number of conditions can take a notoriously long time to heal (i.e., plantar fasciitis, whiplash). FETCO submits that all cases being considered for permanent impairment should go to a Board doctor for review regarding the following questions: Is it too early to rate the worker? Did the work injury cause the current complaints? Is only a certain percentage of the problem work related, and the rest related to aging? Is a certain percentage attributable to another employer? 3
Is the Board consistently and fairly applying 18-05-05, which looks at off-setting a pre-existing impairment, when calculating a NEL award? The Board struggles when implementing this policy in regard to non-measurable pre-existing impairments, despite clear direction within the existing policy on how to do so. The WSIB needs to investigate fully before sending the file to a Board doctor. Again, the claims managers must not ask themselves: Do I have enough information to render a decision? but rather Have I investigated sufficiently to be able to make a proper and fair decision?. This will often require seeking out chart notes for a period of time before the work accident, gathering tests such as MRIs and Ordering files from third party insurers where a claim has been made for the same injury to another organization, etc. D) From time to time, the WSIB letters are vague and misleading regarding whether the file was sent to a Board doctor or to a Board nurse. The letters should be clear on this point. In addition, it would be helpful to attach the memo to the Board doctor and the Board doctor s reply. Without a detailed rationale that explains their decision, employers are left with many questions necessitating a formal request to access the claim file. The employer simply needs to see what factual information and points of reference the decision maker used to come to their conclusion. Again, the Board has an obligation to provide sound and rationale support for its decisions, which align with the Act, the Board policies and all the relevant facts. Providing better guidance for the case managers in making sound decisions (e.g. by providing adequate training and tools including policies) would result in a more consistent and fair process. E) The permanent impairment policies should be gathered into one policy. If it is necessary to have separate policies, the one main policy should reference all other applicable policies. The main policy should clearly address the question of what remedies are available when a worker heals after a permanent impairment is recognized, e.g. allow lifting WSIB restrictions, rescind any lock-in decision.. While remedies do exist, they are not well communicated and known by WSIB staff and employers. F) The Policy Consultation Discussion Paper notes that, in some jurisdictions, a list is provided regarding documents that can be looked at to determine the impact of non-work related conditions. An additional suggested resource is new patient forms. On these forms, workers often write out what is / is not troubling them and potential causes. These forms can be very useful (e.g. for first visits to specialists), yet they are rarely used. AGGRAVATION BASIS A) As mentioned above, the WSIB is not proactive about obtaining all the relevant information to allow a proper and fair decision. 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, if relevant.(e.g. medical chart notes, new patient forms, test results, third party insurance files). 4
Frequently, an employer will provide what they know of a prior condition on the Form 7, and ask that the WSIB investigate further. It is often necessary to go through the appeals system to access a decision maker who will undertake this task. FETCO submits that the WSIB should do this work upfront, and that Appeals Branch Referrals should always be reviewed and signed by the manager of the claims manager, which is apparently already required but not applied. B) The question of what exactly is the employer responsible for, if anything, should go to a Board doctor for review. C) As mentioned above, from time to time, the WSIB letters are vague and misleading regarding whether the file was sent to a Board doctor or to a Board nurse. The letters should be clear on this point. In addition, it would be helpful to attach the memo to the Board doctor and the Board doctor s reply. D) The current policy states that information about the prior condition can be obtained by reviewing 4 types of documents. To this list, FETCO submits that relevant files held by third party insurers should be added. E) The policy should specifically address thin skull cases, crumbling skull cases and cases where there are degenerative conditions, as per the WSIAT s approaches. Occasionally, an issue can arise due to the fact that a worker is later found to have a degenerative condition. As it was not known before the workplace accident and as that start date is unknown, it is not referred to as a pre-existing condition. These cases can become very confusing and lead to unfair adjudication as they seem to fit best with policies regarding pre-existing conditions, yet they are not that exactly. This policy or another policy should address co-existing problems and problems which become known later, which are degenerative in nature. F) The following situations need to be addressed. A worker had a desk job and the worker was managing. The worker is then transferred to a more physical job which he / she can t do. He / she claims an injury at the time of the transfer to the new job. Likely, the real issue here is that the worker could not manage the job change, rather than the worker got injured by the job change. Similarly, with age, sometimes a worker s job simply becomes too hard for them. As it stands, these employees go off work claiming an injury, and an injury is generally allowed (though it is often simply pain at work, rather than pain caused by work). G) The WSIAT s approach of looking at whether the work injury materially advanced the pathology is a good approach. H) The approach of some jurisdictions of apportioning responsibility some to the workplace injury, some to pre-existing condition(s) is a good approach. However, the apportionment should include co-existing or later known conditions as well. Also, in some cases, more than one employer should be held to pay a portion of the costs and the policy should address this issues. I) The Policy Consultation Document mentions cost relief in relation to aggravation claims. This concept applies to Schedule 1 employers only. But it is noteworthy that Schedule 2 and GECA employers can obtain a type of cost relief as WSIB errors are credited back to these employers from the Administrative Fees that they pay. 5
The effect is that case managers are often content to do incomplete work upfront. This often results in the workplace parties appealing to the next level of decision making. Failure to do a thorough job upfront does not provide value for service and puts an unreasonable burden on the Administrative Fund. It is far preferable that the WSIB take its investigative role seriously from the outset and, where appropriate, that Board doctors and managers review the files before they go to the Appeals Branch with a view to early resolution before significant cost is incurred. GENERAL CONCLUSIONS AND RECOMMENDATIONS 1. Policy needs to guide decision makers through a more scrutinizing process. Currently, there is inconsistent effort in gathering medical information or other information to help answer the difficult cases / questions in the adjudicative process. A three step process should occur in all decisions and policy can define that as follows: (1) A search for objective medical findings/data; (2) Utilization of other sources when medical data doesn t provide the answers (ie third party, etc.); and (3) Apply benefit of doubt policy when conclusions are not forthcoming through fact finding. 2. Clearly outlining purpose and intent in policies ensures case managers understand their mandate and are asking similar questions throughout their decision making process. 3. There are issues policy alone can t solve and that seems to result in recurring case management difficulties. Policy can and must be a stepping stone in the solution but cannot be a stand-alone solution. There should be more openness to developing a dynamic link to WSIAT decisions that over time established an approach to properly deal with difficult cases. There should be more education, training and tools for case managers to allow them to issue consistent, proper and fair decisions. FETCO appreciates this opportunity to provide our comments and recommendations and we trust you will find them constructive. Members of the FETCO Workers Compensation Committee would be pleased to speak with you, at your convenience, if you have any questions or comments regarding our submission. Yours truly, John P. Farrell Executive Director 6
APPENDIX A Federally Regulated Employers Transportation and Communications (FETCO) Member Companies and Organizations Air Canada B.C. Maritime Employers Association Bell Canada / Bell Media Brinks Canada Limited Canada Post Corporation Canadian Air transport Security Authority Canadian Broadcasting Corporation Canadian National Railways Canadian Pacific Railway Canadian Trucking Alliance FEDEX Maritime Employers Association NAV Canada Purolator SaskTel Telus Western Grain Elevators Association WestJet VIA Rail Canada 7