Fight for Health and Safety – Defend Injured Workers

Monday, 03 April 2017 09:00 | Written By Judy van Rhijn

The Ontario Court of Appeal has revived the chances for recovery by workers who have had their workers’ compensation benefits cut because of pre­existing conditions.

A class action against the Workplace Safety and Insurance Board, which was previously quashed by the Superior Court of Justice, is alive again.

The case of Pietro Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121 related to the reduction of worker’s benefits because of the existence of pre-existing asymptomatic conditions.

This is alleged to have occurred because of an internal policy made illegally in order to save WSIB money by reducing non-economic loss awards.

“This decision is a significant victory for injured workers and their supporters,” says workers’ compensation lawyer Gary Newhouse.

“The proposed class action raises very serious concerns about how, prior to policy changes introduced in November of 2014, the WSIB administered non-economic loss claims of workers. It was derailed by the Superior Court when the court struck the statement of claim. The Court of Appeal has put the class action back on the tracks — but there’s still a long way to go here.”

The representative plaintiff had his award for a permanent shoulder injury reduced for osteoarthritis, which he said had been asymptomatic before the work-related injury and had never affected his shoulder’s functionality. He was successful in an administrative appeal and then became the face of the class action, which alleges misfeasance in public office, bad faith and negligence by the WSIB.

In early 2016, the case came up against a motion to strike based on s. 118 of the province’s Workplace Safety and Insurance Act. In the provincial legislation, the “privative” clause states that board decisions are not open to question or review in a court.

However, the motion judge, Justice Edward P. Belobaba of the Superior Court of Justice, rejected this.

“On the facts of this case, and given the scope and content of the s. 118 privative clause, it is plain and obvious and beyond doubt that the bad faith and misfeasance in public office claims (and the alternative claim in negligence) are not reasonable causes of action,” ruled Belobaba.

Lawyer Richard Fink of Fink & Bornstein PC of Toronto, who is representing the class, successfully appealed to the Court of Appeal.

He received the decision penned by his Justice Peter Lauwers in February 2017.

“The cases make it clear that, as a general principle, the legislature cannot completely oust the jurisdiction of the Superior Court, including, most pertinently, an allegation of misfeasance in public office related to its use of statutory power for an improper purpose. . . . If the WSIB has conducted itself in a way that takes it outside of the shelter of the privative clause, the argument is that the Board cannot shield itself under s. 133 of the WSIA in respect of the damages claim,” said Lauwers in the ruling.

Newhouse welcomes the decision.

“Injured workers often want to sue the WSIB for negligence and acting in bad faith, but it has appeared that this is impossible,” he says.

“This decision indicates that the door may no longer be bolted shut.”

Fink admits to being in a holding pattern right now, given that the WSIB has 60 days to appeal to the Supreme Court of Canada. According to WSIB spokeswoman Christine Arnott, the decision whether to appeal has not yet been made.

“We are discussing the decision with our legal counsel before determining how we will respond. It is important to note that the decision concerns a procedural matter and makes no determinations about the merits of Mr. Castrillo’s case. We continue to deny the allegations made in the lawsuit,” she says.

No matter what the final outcome of the case is, Fink is of the opinion that this preliminary decision will have a lasting impact.

“The case is of astounding importance. It is the first time in Ontario that a court has indicated that the board cannot act with impunity if it is outside the confines of obligations under the statute,” he says.

“This class action has implications well beyond the case itself. The root of the problem is that the WSIB is not conducting itself in good faith in general.”

Fink says he’s now reviewing his existing small claims files and fielding many new enquiries from injured workers in the same position.

“The loss isn’t the money the WSIB took, which can be recovered from internal appeals,” he says. “It’s the money they had to spend to attempt to recover the loss — legal fees, transportation and other outgoings.”

Newhouse agrees about the importance of the decision.

“Although a great deal of evidence will have to be explored in the proceeding, some important principles have already been established,” he says.

“One is that actions of the board may be open to challenge on the basis of misfeasance in public office, notwithstanding the privative clause in the legislation. Another is that an allegation of bad faith can be an element of or incidental to a misfeasance claim. And finally, the WSIB may be open to a negligence suit in the proper circumstances.”

Fink also sees a door opening in the realm of punitive damages. “Until this class action, workers couldn’t get punitive damages for misfeasance,” he says.

“Workers’ compensation is supposed to be quick and fair without causation. We still have the latter, but quick and fair have gone out the window. The board’s mandate is not to minimize costs but to treat workers fairly in accordance with statute. Instead, it has adopted the same approach as insurance companies.”

Fink points out that when entitlements are sought from an insurance agency, the settlements often minimize amounts owing.

“That’s fine in an insurance context,” he says. “There are remedies in tort litigation and there are punitive damages.”

Fink refers to the case of Whiten v Pilot Insurance Co, 2002 SCC 18, in which the Supreme Court of Canada ordered greater than $1 million punitive damages for the oppressive conduct of the insurer.

“That applies to the WSIB now. Before, what was the downside of the WSIB not paying? If I appeal one of their decisions, there are no legal costs,” he says.

“There is currently a two-and-a-half-year waiting period. A dollar pushed off until tomorrow is a dollar saved. If the worst comes to the worst, they pay what they might have paid years ago. That’s why the Court of Appeal decision is still reverberating.”

Despite these sentiments, Fink sees more prospects of success in law reform as opposed to litigation.

“Lobbying work will be more assistance to the travails of injured workers than my court case, glorious as it was for the day,” he says.

Fink anticipates that other groups will take up the fight.

“Will this case cause the WSIB to reform itself? No. It will be part and parcel of a greater effort. Public unions and private representatives will be more vociferous about having the WSIB restored to trying to assist injured workers rather than minimizing their entitlements. It will be an uphill battle,” he says.

So many people in this country are dying to find a job. One that will let them live a comfortable life, support themselves and contribute to supporting their family. Jobs are scarce, so when we find a good one, we are on top of the world! We all would want that feeling to last, but this is where reality sucks as the saying goes. The sad truth is that, in Canada, so many workers’ dreams get shattered every year due to workplace causes.
Most Canadians have no idea of what the real picture of our workplaces actually looks like. Let me paint that picture for you.
On average, each year, over 900 men and women leave their homes, go to work, but never come home. Approximately 85 of them will be young (15-24). They are killed before they finish their work day. The next time they are seen by their families, is to identify the body. Sounds morbid, horrible and gruesome, but as I said earlier, reality sucks!
Then again if you are fortunate enough, not to be killed at work, on average each year, 330,000 of you will be injured badly enough to have to miss time at work because of that injury. More than 30,000 of you will be between the ages of 15- 24.
On top of the immediate horrors of workplace injuries, we have tens of thousands of injured workers who are destined to live with chronic pain for months, years and in far too many cases, a lifetime.
Having laid out the terrible statistics, we need to ask the question WHY? How is it possible that in Canada, where we have some of the best H&S legislation and regulations in the world, do we still manage to kill and injure workers at such alarming rates?
It would be safe to say that if 900 Corporate CEOs or Politicians or Bay St. Executives were being killed each year because of their work and thousands were being injured and maimed, there would be a National Inquiry called in short order. Hearings would be held, thousands of witnesses would be called and at the end of it all, they would find the root cause and someone would be held accountable.
Why is it that there is no public outcry when working men and women are being killed and maimed in such astonishingly high numbers?
Is it because the numbers are spread across 10 provinces and 3 territories, so it becomes less evident? Is it because we don’t hear about it very much? Is it because it is expected that workers will die and get injured at work? We can speculate endlessly, but until we take the issue of workplace health and safety seriously, we will continue to kill and maim working Canadians in horrific numbers every year.
As someone who has spent decades dealing with health and safety in the workplace, I’ve reached some conclusions about workplaces deaths, injuries, the causes, consequences and solutions.
We know the statistics and we know the consequences are overwhelming for families of workers killed or seriously injured. What about the solutions?
Some would argue that the issue is complicated and the solutions are not easily found. My short answer to that is, BS!! The issue is not complicated. We are killing and injuring thousands of innocent people every year.
Over a 23 year period from 1993 to 2015 , 20,712 Canadian workers were killed on the job in Canada. During the same period, 7,604, 518 workers received injuries that caused them to lose time from work. Thousands of those lives could have been saved and hundreds of thousands of those workplace injuries could have been prevented. Corporations and government regulators need to be placing more emphasis on protecting workers than on protecting the interests and profits of the corporations. Rhetoric you say? No, once again, REALITY!!
We pass wonderful legislation, regulations and standards in Canada, but we lack the will to enforce them in case we interfere with an employer’s business plan. Killing and maiming people should not be a cost of doing business in this country. Government regulators at the federal and provincial/territorial levels can no longer simply watch the carnage in Canadian workplaces and do virtually nothing to stop it or at least reduce it.
I was told recently that the statistics are better than they used to be. No they are not, particularly for workplace deaths. In fact, in 2015, there was only a difference of 1 from 1993. During most of the years in-between, the numbers were actually higher. The workplace injury statistics on paper appear to have dropped substantially; however that too is deceiving, because recent evidence shows that employers, in an attempt to prevent their WCB premiums from going up, are convincing injured workers not to file WCB claims and finding make-work projects to keep them in the workplace. Also, more and more, employers are challenging workers’ claims and appeals to try and prevent their premiums from rising.
Workers Compensation as it was created in 1914, looks nothing like it was intended, which was to have compensation for workers injured on the job. This meant that workers would no longer have the right to sue negligent employers. Today, it is nothing short of an attack against workers, spearheaded by employers and their accomplices in crime, the Provinces/Territories and their Workers Compensation Boards. It is my opinion that in many cases, injured workers are actually seeing a violation of their human rights.
Although most health and safety laws fall under provincial jurisdiction as does Workers Compensation, the fact remains that nationwide, Canadian Workers are Dying for a Job. Many employers are getting away with killing and maiming thousands and the road to preventing so much of this is not being used. At the moment there is no real incentive for employers to clean up their act. They know that the chances of being caught as a negligent employer are low, because the regulatory agencies are not committed to enforcing regulations. Their staffing levels are woefully low and the push back by employers and the lobbying for less regulation, has neutered any existing legislation that was designed to protect workers from death and injury.
It’s time that law makers, police forces and regulatory agencies wake up, do their jobs and help stop the killing and maiming of Canadian Workers. As of the writing of this article, 70 days in 2017 have passed. If past statistics are any indication, approximately 140 workers have already been killed in Canada, and will we kill 2-3 workers every day unless somebody starts to care.
Will it be you, your brother, sister, father, mother, son or daughter?
Who else will Die for a Job before the end of the year?
Join the fight to save lives. Show you care. Make your voice heard.

Bill Chedore
National Coordinator
Canadian Injured Workers Alliance

March 28, 2017
This Thursday (Mar. 30) injured workers will be in the gallery for the Supreme Court hearing on the appeal case Commission des normes, de l’équité, de la santé et de la sécurité du travail (formerly CSST) v. Alain Caron [read summary here] in which the Ontario Network of Injured Workers Groups (ONIWG) is an intervener.

The 2015 Quebec Court of Appeal decision [2015 QCCA 1048] held that, while Quebec’s Act respecting Industrial Accidents and Occupational Diseases placed no obligation on employers to offer suitable employment to a worker who has suffered a work-related injury, when an employee exercises their right to return to work the employer must engage in a process of reasonable accommodation in accordance with the Charter of Human Rights and Freedoms. Further, it found that the Quebec’s Workers’ Health and Safety Commission (CSST) and Occupational Injuries Commission (CLP) had an obligation to examine whether the employer complied.

ONIWG as intervener
The ONIWG & IAVGO Community Legal Clinic Factum addresses, with reference to Ontario’s Workplace Safety and Insurance Board, the duty of workers’ compensation boards to fulfill what should be one of their key responsibilities: ensuring that injured workers’ human rights are respected at a crucial and vulnerable time as they return to work. As detailed in the factum, WSIB adjudicators are best placed to take an active role in stopping the discrimination too frequently experienced by workers re-entering the workplace. [read more]

As for chronic pain case hearing in 2002, Ontario’s injured workers feel their presence in the courtroom necessary in such an important case, and will be supported by legal clinics and other advocates with educational sessions on the case and procedure. A follow-up from people who were there is planned for the next Bright Lights meeting at IWC on April 6th.
This will be ONIWG’s 6th appearance before the Supreme Court as intervener. Previous cases in which ONIWG was an intervener:

– British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, [2016] 1 SCR 587, 2016 SCC 25 (CanLII)
– Honda Canada Inc. v. Keays, [2008] 2 SCR 362, 2008 SCC 39 (CanLII)
– McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 SCR 161, 2007 SCC 4 (CanLII)
– Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 SCR 504, 2003 SCC 54 (CanLII)
– Kovach v. British Columbia (Workers’ Compensation Board), [2000] 1 SCR 55, 2000 SCC 3 (CanLII)

Related reading

Saint-Cyr, Yosie. 2015 Oct. 1. “More Onerous Duty to Accommodate Workplace Injuries.” Slaw
Bawden, Sean. 2016 Jan 25. “Workplace Accommodation is a Two-way Street …on Which Employees Can Get Run Over” CanLII Connects (re Nason v. Thunder Bay Orthopaedic Inc. 2015 ONSC 8097 decision]
Ontario Human Rights Commission. 2016. Discrimination Based on Disability and the Duty to Accommodate: Information for Employers. Toronto: OHRC
Birch, Dan. 2010 Dec. 6. “Rights and Wrongs” OHS Canada [The Human Rights Tribunal of Ontario seems to be a more frequent stop for injured workers with accommodation concerns since changes to the provincial human rights system]

http://www.insurancejournal.com/news/national/2017/03/06/443576.htm

Why Workers’ Compensation Is Especially Needed Now: Report from WCRI Conference
By Andrew G. Simpson | March 6, 2017

After decades of managing costs for employers, it’s time for workers’ compensation professionals and public policymakers to turn their attention to the needs of injured workers and think of themselves more as players in a broader safety net, workers’ compensation experts were told last week.

Panelists and audience members at the Workers’ Compensation Research Institute (WCRI) conference in Boston stressed the need for a credible system for injured workers especially as other social safety nets including job security, employer-funded pensions and health insurance are being weakened.

They also challenged the professionals and public policymakers to more clearly define what, if any, responsibilities they have to those now falling outside the workers’ compensation system, a population that includes older workers with chronic illnesses and long-term disabilities, workers including undocumented immigrant laborers who are injured on the job but afraid to file claims, and sharing or gig economy workers now classified as independent contractors and not eligible for workers’ compensation.The WCRI participants acknowledged that the workers’ compensation industry is still smarting from Department of Labor/OSHA and ProPublica reports of the past several years. These reports alleged that the workers’ compensation system is not living up to the “grand bargain” promised workers: that they would be taken care of in the event of a workplace injury in exchange for giving up their right to sue their employer over the injury.
The reports accused the industry of failing too many injured workers. One of the reports, a 2015 Labor Department-OSHA report entitled, “Adding Inequality to Injury: The Cost of Failure to Protect Workers on the Job,” concluded that the costs of workplace injuries are borne primarily by injured workers, their families and taxpayers’ support of the social safety net.

How Workers’ Comp Got Here

Bruce Wood, long-time general counsel for the American Insurance Association (AIA) who recently retired, said stakeholders spent the past few decades trying to recover from a financial crisis in 1980s and 1990s when costs were exploding and the system was in danger. “You had rates that were not politically supportable, so you had what became suppressed rates. You had an absolute crisis. You had a flight from voluntary markets to residual markets, and many states had to come to grips with that,” Wood said.

They came to grips by approving the use of measures of impairment as proxies for disability, mandating the use of fee schedules, and imposing caps on disability benefits.

States also raised the bar on compensability, requiring work to be a major or predominant contributing cause of an injury.

“Why was this? Well, because mostly through case law, what was considered a workers’ compensation claim was constantly being expanded, and it was thought to be inequitable and it was more costly. So the policy objective here was to call for a stronger nexus between the injury and the workplace. We can debate how effective that’s been. But, you know, it wasn’t a crazy notion. There was a policy justification for doing that,” Wood said.

States also gave employers greater authority to direct medical treatment. This led to panels and networks and eventually utilization review protocols, treatment protocols, evidence-based medicine and more.

“All of these issues continue to animate the debate today,” Wood said.

AIA’s Wood acknowledged that the current intense scrutiny of workers’ compensation may be related to the uncertainty over the traditional safety net tied to job security, health insurance and retirement benefits.

The workers’ compensation system could also see even more scrutiny if changes to the Affordable Care Act leave more people uninsured, WCRI attendees were advised by speakers a day earlier.

Wood is troubled that the scrutiny has spread to the point where some employers and states are now championing the “opt-out” movement, which he said is not in keeping with the grand bargain.

It used to be that when there was a problem with a state’s worker’s comp system, the stakeholders would come go together the legislature for a fix, according to Wood. “The debate was always within the four corners of an accepted public policy, social policy system. A debate between the 45 yard lines,” he said.

But opt-out is changing the game. “With opt out, it’s like a debate between the goal lines. They think we can just abandon the system, we’re gonna’ set up our own system.”

Wood now worries that while the grand bargain is not dead, “there seem to be some fissures in a decades-long consensus. ”

Worker Perspective

The problem with the focus of the past few decades has been the absence of the worker perspective, according to Dr. David Michaels, a George Washington University professor of occupational health and, until recently, assistant secretary for labor with OSHA.

“A lot of how you see the world depends on where you’re coming from,” he said. “Many workers who are either in the system or should be in the system are not doing well at all. That is the reason we’re having this discussion.”

Michaels said there are “aging people who are invisible to everybody who works in workers’ comp” and claimed the number of people who get chronic, work-related illnesses from occupational exposure but never make workers’ comp claims is significant. “Almost none of those people actually ever seek medical compensation for some good reasons and some bad reasons. But they’re not covered at all, and none of those costs go into the system,” he said.

He also identified “vulnerable workers” including non-documented immigrants, temporary workers, workers in trades, and others that have contingent work relations as outsiders to the system. “Even if they know they have the right to get workers’ compensation, they never apply for comp,” he said.

In addition, some gig workers are misclassified employees who should be covered by compensation while others are getting coverage through temporary agencies. But there is a subset who are legitimately classified as independent contractors and do not qualify for coverage.

Studies show that $12 billion in costs in Social Security Disability Insurance (SSDI) are from workers who worked but are no longer getting workers’ compensation benefits and are in disability at least to some extent because of their work-related condition, according to Michaels.

“We think the workers’ comp system covers all the costs, but it only covers the costs that we see and not this really huge world of costs that are really not compensated,” he said.

Michaels said that in addition to lost wages, injured workers face costs that are not covered such as those related to household maintenance. “A worker who’s injured can’t do all sorts of things, and someone else has to do those things. His or her wife or husband has to do those things,” he said.

“What claims or what costs should be encompassed by a comp system and aren’t because of some impediment in the comp system?” asked Wood.

With respect to undocumented workers, Wood said that is a problem with immigration laws and not with the workers’ compensation system.

Who Pays for That?

According to Dr. Emily Spieler, professor at Northeastern University School of Law and former West Virginia workers’ compensation commissioner, approaching the issue only from the perspective of costs to the employer fails to consider the bigger picture, the “social insurance umbrella” of which workers’ comp is supposed to be a part.

“Every economist I know, irrespective of their political proclivities, thinks that workers ultimately pay the costs of the compensation system, and not employers,” she said, arguing that workers never actually catch up on lost wages and that they’re not getting benefits while they are out of work.

The workers’ compensation system’s bad rap in recent reports is partly because of failures elsewhere. “I think that part of the core underlying problem that we have in the U.S. is that we don’t have a generalized disability system that deals with temporary disability,” the professor said.

According to Spieler, the original intent of workers’ compensation was for the employer to “take the worker as he found him.”

But now states say a worker must show that the workplace is the predominant cause of the disability. This means that an older worker working in a hard job who may have some history of back pain may be excluded from workers’ comp if he or she is off work as a result of an event. “So then the questions become, how do we pay for that and who pays for that?” she said.

In relation to changes made in causation, Spieler maintained that proving negligence of an employer is not only very difficult but also very different from nexus: “If I pick up a 70-pound box and I hurt my back, it might not be negligence, but there is certain nexus. If I have a pre-existing back injury in the states that have that in their provisions, I don’t get comp. If I don’t have a pre-existing injury or condition, I do get comp. But either way, I’m off work and not collecting my wages.”

Thus, she said, when thinking about costs, it’s not enough to think about the employer; it’s important to also think about where the costs are being distributed, whether to Social Security, or the worker, or in communities or to the general health care system. “And are we as a general policy as opposed to our own individual company interests, are we distributing the right way?”

Dr. David Deitz, a former medical director with Liberty Mutual who consults on medical systems design and strategies, seconded concerns over causation.

“[I]t has become a real problem now with the aging workforce, with the people who are working from home, with the recognition that many of the conditions that we thought occur in the course and scope of the workplace actually are diseases of life. I think the causation issue becomes extremely thorny,” Deitz said.

Deitz thinks that the preponderance of evidence standard, the 50 percent standard that most states use, is arbitrary and needs to be revisited.

“[T]here needs to be some work done on this because we all have back pain. We all will get osteoarthritis; I guarantee you will. And if you happen to be the employer who’s ‘holding the bag’ while someone has something happen with osteoarthritis, well, it’s not fair to the employer and it’s not a good public policy decision to not recognize that these are in a sense diseases of life. They are clearly related to the workplace, but we all work.”

Too much energy is spent on issues like causation. “I think we spend a lot of heat and light around some of these causation or proportionate kinds of decisions when the reality is, people need care and we ought to figure out what’s the most efficient way of delivering that causation to them,” he added.

Credible System

Wood agreed that there needs to be a societal solution and that it can’t all be about cost, although he felt compelled to add employer context.

“[U]ltimately, it’s the employer that has to be willing to pay and able to pay what costs that social insurance system is. The workers’ compensation system has to be relevant and has to be seen overall as a credible social insurance system,” he said, adding that preserving the system’s credibility should serve as a brake on simply cutting benefits.

The industry representative thus arrived again at the same place as Spieler:

“So we get to the ultimate question of what should be properly encompassed within the workers’ compensation system and what is partially the responsibility of some other payment system?”

With respect to the longer term costs, Wood said the farther the line goes out from the injury, the harder it is to make a connection between lost wages and the injury because some wage loss might be due to other factors unrelated to work like economic conditions or a reorganization of the business.

He also said there is research showing that the increase in SSDI has to do with the aging workforce, the increase in women participating in the workforce, and more lenient SSDI eligibility and not with any inadequacy of workers’ compensation benefits.

However, Spieler cited West Virginia mine workers she knows who are on long term disability and will eventually end up on Social Security disability. “I think it is a social policy question as to whether that’s appropriate or whether the coal industry should be paying for that,” she said.

The former workers’ compensation state official said there’s a subset of workers who are in the SSDI system but who perhaps should be in the comp system. She cited studies in the American Journal of Industrial Medicine in October 2015 on amputations in emergency rooms. The studies found that 20 to 40 percent of people who had amputations were not filing for workers’ comp.

“Is it the comp system’s fault that people don’t apply for comp?” she asked.

“I think the question is probably incredibly complex and may take us back to some of the questions of trust that were being talked about in terms of disability management and employer relations because worker’s comp is separate from the nature of the relationship between employers and employees.”

According to Spieler, while federal regulation is unlikely and may not even be desirable, policymakers should acknowledge that there are inequities in the current state-based system and they don’t all revolve around the scheduled benefits cited in the ProPublica report.

As WCRI’s own research has shown, “there are huge differences in the level of benefits aside from the scheduled benefits that are being paid in the states,” she said.

What happens is that in the absence of consensus on adequacy of benefits, states vie to equal the lower cost of their neighboring states. “How little is too little? I feel we lack that consensus. Then does that mean that they continue this downward spiral and where does that end?” she asked.

The downward spiral ends with trial lawyers expanding not only the availability of tort remedies but also the rights of employees in workplaces, she warned.

And thus the grand bargain comes to an end.

This article was released on March 8th, International Women’s Day, but has a message that is important to be told every day.

March 7, 2017
March 8th is International Women’s Day, an annual celebration of the struggles and achievements of women across the globe. This day roots from a strong militant, worker oriented and feminist tradition. It is therefore a day for us to recollect and reflect upon the collective strength of women standing up together and mobilizing for social, economic and political equality. For many of us, from the injured worker movement, it is a day to reflect upon the struggles of women injured workers and the way in which injured women workers have taken out to the streets and fought for fair compensation; not backing down for “half measures”.

Historically, the Ontario Workers’ Compensation system was structured to function in ways that would disadvantage women workers (Storey, 2009). The 1915 Workmen’s Compensation Act statutorily and systematically worked with the assumption of that time, that women’s paid employment did not have much monetary value (2009). Therefore, part of its function was to exclude bulk of injured women workers from basic coverage. Compensation manuals distinguished between married or single, as dependents or survivors of male injured worker; systematically constructing women workers as secondary wage earners or biologically predisposed to earn less, get injured more, and complain more often about an injury than their male counterparts. However, alongside a growing injured worker movement, the 1982 change of name to a gender-neutral Workers’ Compensation Act (later Workplace Safety and Insurance Act) was symbolic to all injured women workers who took leads in the movement.

The challenges continue
In spite of this symbolic change to a formally gender-neutral system, the workers’ compensation system entrenches the inequalities found in the labour market. Women still face disparities in income and employment conditions; many in part time, non-union and temporary jobs that aggregate the possibility of women workers getting injured more often. This is directly translated into lower compensation payments and the Board’s use of deeming when a worker gets injured [read Jenny’s story]. Furthermore, injured women workers often encounter Board officials downplaying the severity and legitimacy of the injury, devaluing their paid employment, or even prescribing rehabilitation and reintegration programs with gendered stereotypes. Additionally, reintegration models and retraining programs have not recognised the complexities that arise due to care-giving roles and the consequence of work injury on a women worker. The challenges for injured women workers continue as injured workers now confront a neo-liberal and austerity driven workers compensation system that focuses on cost cutting on the backs of injured workers.

Taking up strong activist roles
Yet, our story is not complete. Today, as women across the globe hold parades, marches and festivals to celebrate the contributions and activism of women, we are reminded of the tireless endeavour of injured women workers. Many of the injured women workers have taken up strong activist roles in advocating for justice for the worker, to be protected in the workplace and for wage equalities. They have taken leads in forming peer support groups (such as Women of Inspiration), bringing in their knowledge in research circles, joining in parallel anti-poverty and anti-austerity movements and not backing down to any decision that is not fair. The resistance keeps growing; grassroots mobilizing and collective strength keeps growing. Our history of struggles and resistance only remind us to take time to appreciate all that women have accomplished and to carry on the fight for just compensation.

(contributed by Rachel Gnanayutham, community legal worker)

With an aging workforce in Canada, there may be concerns that musculoskeletal disorders (MSDs) may be more prevalent and costly. While the evidence on this question is inconclusive, some current research suggests that supporting healthy aging in workplaces will benefit society in general.

That’s the message from a recent position paper prepared by a team of researchers from the Institute for Work & Health (IWH) for the Centre of Research Expertise for the Prevention of Musculoskeletal Disorders (CRE-MSD). In the paper, the team examined a framework for healthy aging set out by the World Health Organization (WHO).

That framework includes strategies for creating age-friendly environments, strategies that the IWH team suggests can be adapted and applied to workplaces. They include combatting ageism; enabling autonomy, and supporting healthy aging in policy.

While our focus was on MSDs and aging, we realized early on that we needed to go beyond the occupational health and safety literature to find out how workplaces were addressing the aging workforce, says Dr. Dwayne Van Eerd, IWH associate scientist and lead author of the position paper.

The WHO framework was helpful in providing strategies and a starting point for finding the additional literature.

On combatting ageism, the team said the current research literature does not support a link between aging and lower productivity, lower work ability or higher MSDs. On enabling autonomy, the team found research on key approaches such as flexible work arrangements and customized employment contracts called “I-deals” for “idiosyncratic deals.”

Regarding workplace policies to provide support for healthy aging and older workers, the team found inconsistency in the research literature. Perhaps the greatest challenge to workplace policy is the heterogeneity among older workers, note the authors.

Overall, the link between aging and MSDs is not clear, says Van Eerd. We think age is just one of many factors to address when it comes to reducing MSDs.

The position paper can be found at: http://uwaterloo.ca/centre-of-research-expertise-for-the-prevention-of-m….

Source: At Work, Issue 87, Winter 2017: Institute for Work & Health, Toronto

Study in four Canadian provinces finds some confusion and areas for potential improvement
Most health-care professionals, when treating patients with visible, acute physical work-related injuries, find the workers’ compensation system and the return-to-work (RTW) process relatively straightforward.
However, they face challenges when treating workers with multiple injuries, complex or gradual-onset illnesses, chronic pain or mental health conditions, a study by the Institute for Work & Health (IWH) has found. These complex cases are estimated to represent less than 10 per cent of lost-time claims administered by provincial workers’ compensation boards.
In complex cases, health-care providers describe the workers’ compensation system as opaque and confusing. They also report a lack of clarity about their role in contributing to the return-to-work process. In this respect, their views are similar to those of case managers, who are also unclear about the role and degree of involvement of health-care providers in RTW.
We went into this study with the goal of investigating how health-care providers could be more engaged in workers’ compensation and return to work, which research suggests results in better RTW outcomes, says IWH Scientist Dr. Agnieszka Kosny, lead researcher on this two-year project. However, it quickly became clear that there’s significant confusion among both health-care providers and workers’ compensation case managers about what the role of health-care providers should be in the management of complex cases.
Case managers, health providers interviewed
For this study, Kosny’s team interviewed 97 health-care providers and 34 case managers in British Columbia, Manitoba, Ontario, and Newfoundland and Labrador. The health-care providers were mostly general practitioners in a range of settings, but also included 19 allied health-care providers such as occupational therapists, chiropractors and psychologists, and 19 specialists such as surgeons, physiatrists and rehabilitation specialists.
The study identified the challenges faced by health-care providers and case managers when it came to the role of health-care providers in return to work. These challenges were grouped along six themes:

(1) Disagreements about timing and appropriateness of return to work: While health-care providers and case managers agreed that return to work has many benefits, they also sometimes disagreed about the timing of RTW. Case managers sometimes felt that health-care providers were delaying return to work because they were following patients’ wishes instead of appreciating the benefits of RTW. On the other hand, health-care providers sometimes felt case managers were predominantly interested in cost-containment and were pushing workers back too soon without understanding their individual circumstances.
(2) Lack of understanding of the workers’ compensation system: Both health-care providers and case managers talked about the lack of knowledge that doctors, in particular, had of the workers’ compensation system. Most doctors reported receiving little training in medical school about workers’ compensation, occupational health, work injury management and return to work. Several health-care providers talked about the difficulties they faced when trying to determine patients’ functional limitations or assess workers’ readiness to return to their job. This lack of knowledge led to misunderstandings among both health-care providers and case managers, making collaboration difficult.
(3) System rigidity: Health-care providers described instances where workers’ compensation rules and procedures seemed to lack flexibility needed to accommodate the circumstances of workers with complex injuries and conditions. Some said their patients’ conditions did not conform to the recovery guidelines that some workers’ compensation boards applied to assess how long workers should take to recover from a particular illness or injury. They felt that the guidelines failed to consider co-morbid conditions and were sometimes unsuitable for complex injuries arising from multiple causes.
(4) Communication: Health-care providers sometimes described difficulties reaching case managers when they had questions or needed information. For their part, case managers also reported difficulty getting information from health-care providers, such as when they received forms that lacked detail and their phone calls to doctors’ offices were not returned.
Several health-care providers said it was common for them to submit an assessment to the workers’ compensation board but never hear about the outcome of the claim. Many also noted that, as a result of communication barriers between health-care providers and case managers, injured workers played the role of the go-between. Some participants pointed out that using injured workers to relay information could result in misunderstandings, delays and incorrect information being conveyed to key decision-makers.
(5) Exclusion from the workers’ compensation and RTW process: Health-care providers described instances of feeling alienated from the workers’ compensation system and RTW process, especially when their recommendations were overturned.
This feeling of exclusion was made worse for some health-care providers by the use of internal medical consultants by workers’ compensation boards. Although some health-care providers found these consultants helped in the process because they “spoke the same language,” others were concerned about consultants’ independence and the determination of assessments without seeing injured workers in person. Case managers, for their part, said consultants helped them understand medical recommendations and provided a double-check for proposed treatment recommendations.
(6) Issues related to the broader health-care system: Both health-care providers and case managers talked about lack of access to the health-care system as a problem in RTW. They noted that many injured workers, especially those in northern and remote communities, did not have family doctors. As a result, these patients depended on walk-in clinics or emergency rooms for their primary care—settings that are not appropriate for dealing with RTW issues. Health-care providers and case managers also spoke about wait times for tests and appointments with specialists, and the challenges these created for patient recovery and RTW.
The challenges we heard are not going to be easy to solve, but we heard many good ideas for improving the system, says Kosny. I’m encouraged by the feedback I’ve heard from different group stakeholders—feedback indicating to me that many share the goal of improving the workers’ compensation and return-to-work experience for injured workers.
The full study report is available at: www.iwh.on.ca/other-reports. A plenary presentation on this study will be available at: www.iwh.on.ca/plenaries/2017-feb-07.

President’s Letter

CPC Members, Colleagues and Friends,

The Canadian Pain Coalition is pleased to provide you with information and links regarding the release today, January 30, 2017, of the 2017 Draft Recommendations for the Use of Opioids in Chronic Non-Cancer Pain.

As you may remember, the Canadian Pain Coalition participated as an expert panel member for the original 2010 Guidelines and I represented CPC as a voting panel member for this update.

Follow the link below to learn more and to provide your feedback about the guidelines by the end of February at: http://nationalpaincentre.mcmaster.ca/guidelines.html

Media coverage:
• Hamilton Spectator, January 30, 2017 http://www.thespec.com/news-story/7092508-mcmaster-releases-draft-opioid-guideline/
• Globe & Mail, January 29, 2017 http://www.theglobeandmail.com/news/national/canadas-proposed-new-opioid-guidelines-dont-address-prevention-sources-say/article33821459/

Sincerely,
Lynn Cooper BES
President

Daniel Theriault objects to explanation MLAs heard for WorkSafe’s absence from appeal hearings
By Jacques Poitras, CBC News Posted: Jan 24, 2017 6:00 AM AT Last Updated: Jan 24, 2017 8:32 AM AT

The CEO of WorkSafeNB is being accused of giving misleading information to a committee of MLAs at the legislature last week. Tim Petersen was explaining last Thursday why his Crown corporation had not even shown up to argue against rulings by an appeal tribunal, rulings that drove up costs now being passed on to employers. But several of Petersen’s statements are being challenged by Daniel Theriault, who chairs the independent Workers Compensation Appeal Tribunal.

WorkSafe decisions on benefits for injured workers are appealable to the tribunal, and the tribunal has issued several rulings overturning decisions and forcing the corporation to pay out higher benefits.

Standing was not denied
Petersen said WorkSafe wanted to defend its decisions but was turned down. “We have in fact sought standing at a number of different appeal hearings, unsuccessfully,” he told the committee. He also said his predecessor had made a “commitment” to Theriault that WorkSafe would avoid “seeking standing” except in specific cases “so as not to bog down the process” of a worker being awarded benefits.

Theriault said Monday that Petersen was wrong on both counts. He said WorkSafe doesn’t have to “seek” standing to defend its decisions. “The way the legislation is worded,” he said, “WorkSafe is a party to each and every hearing automatically. So they don’t have to seek standing.”

And he said he was not aware of any commitment by WorkSafe to limit its appearances to avoid bogging down the process.

Bogging down not a worry
In fact, Theriault said, WorkSafe attendance at a hearing would only add an hour or two to the entire processing of a worker’s claim. “Their attendance would not bog our process down,” he said. “Our process is set, dates are set, so there’d be nothing to bog it down.”

Petersen was careful last week to tell MLAs he was not criticizing the decisions by the tribunal, which began operating in April 2015 as an independent appeal body for WorkSafe rulings. “They’ve been legislated to do a job and they’re doing that job, so [it’s] not a judgment about that,” he said.

But even so, he said, several rulings had created precedents that forced WorkSafe to pay out higher benefits or account for its costs in a different way.

Blamed tribunal for part of increase
That was responsible for about 15 cents of the 37-cent increase employers were hit with on Jan. 1, he said. Employers have been complaining that the increase, to $1.48 from $1.11 for every $100 of payroll, would make it more expensive for them to hire more workers.

Petersen said one appeal ruling in particular was costly: a tribunal ruling that WorkSafe could not reduce benefits if workers’ retirement money invested in the markets lost value during a downturn.
– ‘Significant’ hike in WorkSafeNB rates likely in 2018, employers told
– Workers’ Compensation Appeals Tribunal overturns 90% of cases 

“If I’m not mistaken, we did not have notification of that appeal,” Petersen told reporters. He attributed that to the fact it happened just as the tribunal was starting to operate. “Any time there’s that type of transition, there are sort of bumps along the way, and that was probably a result of that,” he said. If WorkSafe had known, he added, “that’s one we probably would have definitely considered appearing on.”

WorkSafe wrong on all counts
But Theriault said Petersen was wrong about that, too. He said the tribunal has held six hearings since April 2015 on cases relating to the negative value of retirement benefits. “I’ve double-checked our records and on each case, [WorkSafe] was notified of the hearing date,” he says. “They chose not to attend any of the six.”

Petersen told MLAs last week that WorkSafe only has two lawyers on staff, making it difficult to take on a large number of appeals. But Theriault said he told Petersen that it doesn’t have to be a lawyer who attends the hearing. A claim manager would be enough.

He said that of 541 hearings the tribunal has held since April 2015, WorkSafe has shown up for four, which makes it difficult to consider the Crown corporation’s rationale for its decisions.

“Any argument WorkSafe would want to bring forward is not present to be considered by our tribunal,” he said. “If they’re arguing that it’s such a cost consequence to them, they should make every effort to rectify that consequence.”