INTERVIEW QUESTIONS - WORKERS' COMPENSATION COMPENSATION SERVICES ISSUES JURISDICTION: ONTARIO I. COMPENSATION SERVICES ISSUES 1. Is there a requirement, statutory or otherwise, requiring the regular review and potential readjustment of the rate of temporary wage loss benefit paid to an injured worker? If yes, what is the basis for adjusting the temporary wage loss benefit (i.e., a different basis for calculating the rate; a change in circumstances or level of disability)? And, are there any statistics or data regarding how often the rate is adjusted down or up? Ontario has a "loss of earnings" (LOE) approach to wage loss benefits: an injured worker receives 85% of pre-accident net average earnings, based on degree of disability and effect on earnings. Board policy recognizes that there may be a lot of change or variation in the conditions and circumstances facing the injured worker in the first few months of their claim. The worker has the obligation to report a change in medical condition and circumstances. After receiving a wage loss benefit for 24 months, the injured worker is subject to a "24 month variable review" and again at 72 months or five years 1. 2. Are permanent disability awards, both partial and total, subject to review and readjustment? For example, is there a requirement, statutory or otherwise, requiring the regular review and potential readjustment of the rate of permanent disability award? If yes, what is the basis for adjusting the award (i.e., a different basis for calculating the rate; a change in circumstances or level of disability)? And, are there any statistics or data regarding how often the rate is adjusted down or up? Compensation for future economic loss is based on 85% of the difference between net average earnings before the injury and net average amount the worker earns in actual or deemed employment following the injury. 1 If an injured worker meets certain criteria they can elect to opt out of this review requirement. The criteria are that the worker must be 55 years of age or older, have reached maximum medical improvement and been subject to a labour market plan. If a worker elects this option he or she may not reenter the system and request an adjustment upward due to an aggravation of their condition, but nor can their pension be readjusted downward. 6/22/98 1
After five years of receiving benefits, the injured worker is subject to a final review and the benefit amount is set and not subject to further readjustment. The worker receives this benefit until they reach 65 years of age, unless the worker is 63 years or older at the time of the injury in which case the benefit payments continue for two years following the date of the injury. 3. Is there any prohibition in the workers' compensation legislation in your jurisdiction against "topping up" (i.e. purchasing private disability insurance which provides income in addition to workers' compensation payment?) There is nothing in the workers' compensation legislation to prevent the employer from "topping up" the level of workers' compensation benefit. 4. What factors, if any, other than earnings, are used to determine workers' compensation benefits (for example what impact does age, marital status, number of dependents, retirement, education and training have on the calculation of benefits)? Net average earnings 2 is the only factor considered in the calculation of compensation benefits. 5. Is deeming used in either 1) setting the duration of temporary benefits or 2) as the basis for calculating permanent disability awards (where "deeming" means deeming a worker ready to return to work, and/or as capable of earning income at a particular income level, though the worker may not have actually returned to work or may be earning income at a lower level)? And if yes, what are the prerequisites for applying deeming? And, are there any statistics or data regarding the frequency with which deeming is used? LOE is based on actual or deemed earnings. There is a complex system in place in Ontario. The goal is "return to work". Injured workers who are unable to return to their former occupation and position must participate in a "labour market re-entry plan" which is designed to mitigate any age loss difference. An actual job is not guaranteed through the labour market re-entry plan, but the board will provide required training and assistance following which they will "deem" the worker in a "suitable" job and pay LOE based on earnings capacity whether or not the worker actually is employed. 2 Net average earnings are gross wages minus probable deductions for income taxes, CPP premiums and UI and therefore may be a lower figure form single worker and higher figure for married claimant with dependents. 6/22/98 Page 2
6. Does the jurisdiction have an electronic claim files system in place? When was it introduced? What are the perceived advantages and disadvantages of electronic claims files? The "Image System" was introduced in the fall of 1989 as a pilot project and introduced system wide in 1990. It consists of three separate applications working together: the Folder Application Facility, the Claim File Referral Facility and the Online Memo System. Advantages include: Greater claim file accessibility Improved customer service Reduced mail processing time Reduction of records storage and management costs. Disadvantages include: Not all board staff have access to Claim File System Claim files still routinely printed Difficult document management of large claim files Online Memo system is not user friendly Amalgamation of claim files laborious procedure Incoming work is not consolidated Technology upgrades are costly. [For more detail see attached notes.] 7. Have any research or studies been undertaken on the adequacy of benefits provided by the jurisdiction? Any research or studies on the issue of equity of benefits? Are these studies available to the Royal Commission? No research studies specific to the issue of the adequacy and equity of benefits have been undertaken in Ontario. 8. Claims Statistics: 1996 - Total # of registered accidents 337,692 Allowed Time loss 103,080 Allowed No Time Loss 172,901 Not Allowed Abandoned 46,527 Denied 12,443 Pending 2,741 6/22/98 Page 3
There is no available data on the incidence of short term versus long term claims or the size, distribution and range of pensions. II. ADJUDICATION 1. How would you describe the basic approach to adjudication in your jurisdiction (for example, inquiry based approach or adversarial)? An inquiry based approach is used in Ontario (see Part II, question 6). 2. In your jurisdiction is the function of adjudicators, at the first stage, similar to an insurance adjuster? No, much broader (see Part II, question 6). 3. If new evidence is presented on a particular claim, is the claim sent back to the adjudicator for reconsideration? There are several opportunities for review by the original decision maker, or adjudicator, and reassessment of new evidence and the decision (see Part II, question 6). Once a file has been referred to the formal appeals process it is generally not sent back for reconsideration by the original decision maker (only about 2% of cases are sent back). 4. Are board policies binding on adjudicators? To what extent are adjudicators entitled to exercise discretion? Is discretion applied by an initial claims adjudicator reviewable? The board is directed under the legislation to decide each case on the basis of its own merits and is not bound by legal precedence (section 119). The decision maker must look to relevant board policy and apply it as appropriate to the specific case, but if the policy does not apply the decision maker must look to the basic provisions, or underlying principles of the legislation. When the facts are equally balanced, law and policy requires that the claimant be given the benefit of the doubt (see policy 010105, "Policy on Decision-Making"). What, if any, mechanisms are in place to promote consistency in decision making? The board has a quality assurance/quality improvement program in place. 5. Do workers and employers have access to their information in board files? If yes, is this because of a provision in the workers' compensation legislation or a result of the 6/22/98 Page 4
Freedom of Information and Protection of Privacy Act? Is further information found in sub-files which do not form part of the claim file? And if so, are the sub-files disclosed? Is relevancy of material in a board file a prerequisite to its disclosure to the affected worker or employer? If so, who determines whether the information is relevant and on what basis? Does the worker or employer have the right to object to the relevancy of the information after it has been disclosed? The workers' compensation legislation provides for the release of information. A worker has access to everything in their claim file except "harmful" healthcare information 3. In general practice, an employer is entitled to their own employer file, with no restrictions on the release of information. An employer is entitled to all relevant information in the claim file of an injured worker subject to approval by the worker of the release of health care information. The legislation requires that the worker be notified of the request for information by the employer and gives them the worker the right to object to the release of healthcare information (sections 58 and 59). If the worker objects to the release of the health care information the board tries to resolve the issue, but it may ultimately go for appeal to the Appeals Tribunal. Certain other information relating to the administration of the claim may also not be released to the employer. 6. Is there any "informal" review process for workers and employers regarding claims adjudication or assessment decisions (i.e. review by supervisor or manager prior to the formal internal reconsideration or review process and external appeal process, if any)? The Ontario board has recently introduced a new approach and process to reduce disputes by applying an early resolution approach and process at the front end or adjudication level. The goal of the Preventing and Resolving Disputes (PARD) process is to encourage, support and require front-line staff to use alternative dispute resolution approaches in the adjudication of claims so as to prevent the incidence of disputes. The PARD process also applies to decisions involving the accident employer. The PARD process was developed from the ground up by a working committee of front-line staff. This ensured that the process was relevant and workable and that it would have the support from those who would actually have to implement it. The PARD process is not required by legislation, but is formal in the sense that it is now considered an integral part of the overall internal appeal process at the board (see notes from survey questions on Ontario's internal appeal system). 3 These cases are extremely rare and the worker will be advised to contact their doctor. 6/22/98 Page 5
The PARD process recognizes that there are three kinds of issues that may arise concerning the adjudication of claims: substantive issues, procedural issues and emotional or personal issues. Many times a dispute arises over a procedural or emotional issue and the goal of the PARD process is to not only deal with substantive issues in a more effective way but to specifically address procedural and emotional issues. The early resolution process has three stages: Dialogue/Decision Stage: where an adjudicator makes a decision, he or she must send a letter to the claimant outlining his or her decision and outlining all the information used in making the decision. The letter also outlines the requirements and timelines for requesting a reconsideration of the issue. If concerns are raised about the decision, the adjudicator/decision maker will review the concerns with the party, explain the rationale for the decisions and address any new information which may be provided by the party. In discussing the issue with the client, the adjudicator has been trained to listen and identify whether the claimant's reaction is substantive or based on a procedural or emotional issue. If the decision remains unchanged, and the party has indicated in writing a desire to appeal the decision, the adjudicator will refer the file to the Access area. Access/Objection Form Stage: The Access area will provide the claimant with access to their claim file along with information on how to make a formal appeal to the internal appeal system. The Access area will also send a letter to the employer and other non-objecting parties (i.e. representatives) with a "participation form" providing them with the opportunity to request to participate if the issue goes to appeal. If the claimant decides to appeal the decision, the claimant must send in an "objection form" that specifies reasons for the appeal. Reconsideration Stage: If an objection is received, the adjudicator will review the information in the form, including considering any new information that is provided. This provides the adjudicator with a final opportunity to review the information and determine if the decision is still sound. In most cases, the manager will also review the file to ensure that all relevant information has been considered and all issues addressed before the issue proceeds to the Appeal stage. It is recognized that implementation of the PARD process requires increased resources and more time up-front in the adjudication process, but it is felt that more time spent at the front end will save time spent down the road on the reconsideration and appeals process. 6/22/98 Page 6
If yes, are there any statistics available on the total number of issues reviewed and the allow/disallow rate for this informal review process (are there any statistics kept on the number of issues reviewed, and the allow/disallow rate broken down by type of issue " for example, assessment decisions, compensability, level of benefits)? There are no statistics available on the PARD process 4. 7. Is there a formal "complaints" review process in your jurisdiction, distinct form any internal review or external appeals process, to deal with complaints from clients of the board regarding the conduct of board officers and staff or service issues? If yes, is this process independent of the board? There is no formal complaints review process in Ontario 5. 4 Under the former system about 30 to 35% of all issues sent to the Appeals system were returned to the original decision maker or adjudicator for reconsideration; it is estimated that with the introduction of the early resolution process that this number has dropped to about 5%. 5 There is however a major customer service component to the PARD process. The goal is to get the right decision, but also to ensure that the client feels well served and fairly treated in the process. 6/22/98 Page 7