Alberta is reviewing it workers’ compensation system for the first time in 15 years. A few weeks ago, Merit Contractors started a campaign with the basic message is that business is opposed to increased operating costs:
The government’s intended direction is clear: it wants to make it easier to file claims and expand the number of claims that are covered. As a result, WCB premiums are inevitably going to go up.

Together with the carbon tax and minimum wage hike, this is yet another cost for small businesses at a time when they simply can’t afford it. Some will be able to bear the burden, but others won’t. 
Business owners who have spent years building their dream may watch it slip away. Ordinary Albertans will suffer too, with even more people losing their jobs.
This campaign is pretty typical of the corporate-conservative pushback against the NDs. Whether such a campaign resonates with employers is an open question. It paints employers as more concerned with their bottom line than their employees’ health and well-being. Supporting this campaign doesn’t exactly scream “we’re an employer of choice”.

Last week, the review panel released an interim progress report. Its consultation has generated about 2000(!) responses so far and a final report is due in April. A key theme the committee has flagged is a purported shift away from the Meredith principles and towards an insurance model as a source of a number of difficulties. That sounds quite abstract and bloodless, until you read down a few pages and get to this paragraph (I’ve broken the text up a bit to facilitate reading–it is worth your time).
There are people who describe their experiences with the WCB claims process in positive terms. Many others describe their experiences in very negative terms, such as “disrespectful”, “angering”, “frustrating” and even “dehumanizing”.

A widespread view is that the WCB operates its claims process in a way that presumes injured workers are lying about their injuries or illnesses, and looks for any possible reason to deny an injured worker’s claim, lower their compensation, refuse their requests and “cut them off”.

Some feel the WCB deliberately makes its process complex so that injured workers will abandon their claims out of frustration. For example, it is said the WCB will demand injured workers obtain information (such as notes from physicians) to “prove” their condition and its relationship to their employment, only to be told the information they have provided is “still not good enough”.

Others feel the WCB’s culture is focused on saving money rather than compensating injured workers. They say this is evident in the way some WCB personnel display rudeness and a lack of compassion when communicating with injured workers and managing their claims.

Still others characterize the WCB as a bully, saying it abuses its authority by routinely threatening to terminate workers’ benefits if they dare to question its demands. Compounding this, it is said that the WCB’s decision- making process is not clear to people, which further fuels distrust, anger and frustration. (p.7)
The committee also flagged presumptive status, an employer obligation to accommodate returning workers in a meaningful way, and the WCB’s approach to return-to-work as issues requiring more attention. On RTW:
Sometimes workers are assessed as ready to return even though they do not personally feel ready, or their personal physician says they are not ready, or the employer believes they are not ready. Some people say that the WCB ignores such concerns and deems the worker fit to return anyway.

This forces the worker to make a choice between losing their benefits or returning to the workforce and risking their health; and it forces the employer to re-integrate a worker whom they believe should not be there and might pose a safety risk to others. (p.10)
On benefits and premiums, the committee notes:
The current insurable earnings cap may need review.
 Earnings might be calculated more inclusively.
The process by which the WCB deems workers to be earning money (and thus cuts their benefits) may be problematic.
WCB premium incentive schemes may drive undesirable employer behaviour.
These topics will likely raise some eyebrows at Merit. That said, I don’t think that Merit can reasonably claim WCB premiums will be going up if even if radical changes were implemented.

I say this because the WCB annually rebates hundreds of millions of dollars to employers (e.g., $507m in 2015 and $467m in 2016) based on accumulated surpluses. Employers may not get a big surplus cheque each year, but premiums will likely stay stable.

Overall, I thought the interim report was very even-handed. It gave voice to a number of important worker criticisms of how the WCB operates that the Tories managed to stifle for the last 20 years. It delved into systemic issues that reinforce the insurance culture of the WCB (premium schemes). Yet it makes no promises and draws no conclusions as the consultation is still going on.

One way to read the tea leaves of this report is that major changes in the culture and operation of the WCB may be required. If I were a Board member or senior executive in the WCB (i.e., the people who set the direction and tone), the implicit condemnation of the WCB’s approach in this report might make me a bit nervous. I wonder what kind of push-back the review committee is getting from the WCB?

— Bob Barnetson

A new complaint to Ontario’s ombudsman is demanding an investigation into WSIB’s “discriminatory” and “unconstitutional” treatment of mentally ill workers. (FRANCIS VACHON / THE CANADIAN PRESS FILE PHOTO)
By SARA MOJTEHEDZADEHWork and Wealth reporter
Mon., Nov. 14, 2016

Mentally ill workers are being systematically denied benefits because of discriminatory and unconstitutional practices at the province’s Workplace Safety and Insurance Board, according to a new complaint sent to Ontario’s government watchdog. The 138-page submission obtained by the Star calls for an investigation into the WSIB for its treatment of workers with chronic mental stress injuries due to workplace trauma. Such workers are not currently entitled to compensation — even though the board’s own independent appeals tribunal has already deemed the policy unconstitutional.
“It is untenable that this group of vulnerable workers remain excluded from the compensation to which they are constitutionally entitled,” the complaint sent to the Ontario Ombudsman says. The complaint was submitted Thursday by three Toronto-based legal clinics, a private practice lawyer specializing in workers’ compensation, and Ron Ellis, the highly respected retired chair of the WSIB’s independent tribunal.
“The absurdity of the situation and the grim consequences for workers warrant your office’s urgent attention,” the complaint says. The WSIB did not respond to the Star’s request for comment. In response to questions from the Star, Minister of Labour Kevin Flynn said fair benefits for injured workers, including those living with mental stress, were a priority.

Wendy Knelsen, shown with her dog, Tucker, says she was diagnosed as having chronic post-traumatic stress after what she described as ongoing bullying and harassment at work.
“We are committed to treating injured workers with the fairness, dignity and respect they deserve, and to providing them with the help they need when they need it. We are listening to the concerns being raised regarding this issue, and are currently reviewing legislative options to address it,” he said.
Under existing legislation governing the WSIB, the board must compensate mental stress injuries resulting from “an acute reaction to a sudden and unexpected traumatic event at work.” Ontario’s Liberal government also recently introduced new laws that make it easier for first-responders to claim compensation for post-traumatic stress disorders. But workers in other professions who develop psychological conditions from long-term workplace issues such as prolonged harassment have no right to compensation at all.

Wendy Knelsen says she was diagnosed by her psychiatrist as having chronic post-traumatic stress after what she described as ongoing bullying and harassment by her supervisors at a London-area fire department. She was also tasked with dealing with an investigation into the death of a firefighter, a job she says she received no training for and describes as traumatic.
“I don’t think anything could prepare you when you see your coworkers — these tough firefighters — breaking down trying to tell their story, and you type every word over and over. It’s very hard,” she said. But even though her psychiatrist diagnosed her with work-related anxiety and depression, the WSIB denied her claim because it is not required to compensate chronic mental stress injuries. Knelsen says she has spent 10 years appealing the decision, and has still not received an answer. Labour Minister Kevin Flynn said fair benefits for injured workers, including those living with mental stress, are a priority for his government.

“Basically dealing with this system has been horrific, she said. “It’s intimidating, it’s difficult to get answers, and they are untrained for dealing with mental stress.” “The impact is financial, it’s emotional, and it’s social,” adds John Bartolomeo of the Workers’ Health and Safety Legal Clinic, one of the signatories of the complaint. Two years ago, a nurse who endured a decade of harassment by her supervisor resulting in anxiety and depression successfully challenged the WSIB’s refusal to award her benefits. According to the board’s independent tribunal, her constitutional right to equality was violated by the decision to deny compensation, which the board was forced to overturn. Two subsequent rulings on separate appeals in 2015 and 2016 reached the same conclusion.

But tribunal rulings are only binding in the specific cases before them — so the board has continued its policy of denying benefits for chronic mental stress, according to the ombudsman complaint. That means workers are forced to launch lengthy legal battles to win their entitlements. “The cost of mounting a Charter challenge, both financial and emotional, are simply too high for many workers to bear,” the letter to the watchdog says, noting that severe backlogs mean it takes years to get a tribunal hearing. “That is very stressful,” said Toronto workers’ compensation lawyer Anthony Singleton. “People feel very betrayed by the system. They are stuck in the system.” The ombudsman complaint also faults government for failing to fix the loophole in its current legislation, arguing the Ministry of Labour is “aware that parts of the Workplace Safety and Insurance Act have been deemed unconstitutional but has taken no remedial action.”

According to Ron Ellis, who served for over a decade as chair of the WSIB’s independent tribunal and is the author of Unjust by Design. Canada’s Administrative Justice System, a government would usually either challenge a tribunal decision finding its legislation unconstitutional — or change the law in question. In this case, the Ontario government has done neither. “The question is why,” says Ellis. “It gives the appearance of being a tactical decision to stymie the constitutional challenge process in order to prevent the board having to assume the financial obligations implicit in the chronic stress benefit entitlement.”

This is the second time this year advocates have demanded an investigation into the WSIB. As first reported by the Star, a group of doctors, lawyers, and labour advocates submitted a formal request for the ombudsman in January to probe the board for ignoring the medical opinions of injured workers’ doctors. The number of complaints made to the provincial watchdog by ordinary citizens has also jumped by almost 20 per cent over the past year, according to statistics requested by the Star. Knelsen, who was spurred to activism by her own decision, wants to see action from both the board and government.
“I call it the war within — because PTSD really is,” she said. “It’s tearing families apart, forcing them into poverty, some (workers) are killing themselves. And their response is, workers with stress can wait.”

https://www.thestar.com/news/gta/2016/11/14/ombudsman-asked-to-probe-wsib-treatment-of-mentally-ill.html

NOTE – DEADLINE FOR THIS SURVEY IS SATURDAY, NOVEMBER 12, 2016

The Honorable Jane Philpott, Federal Minister of Health, is convening an Opioid Conference on November 18, 2016, in Ottawa. Lynn Cooper, President of the Canadian Pain Coalition, will be attending.
In preparation for this meeting, the Canadian Pain Coalition is interested to know and greatly values your opinions about the use of opioids in the treatment and management of your pain.

We would appreciate your participation in our survey at https://www.surveymonkey.com/r/SCZV5GH by Saturday, November 12, 2016.

10-1002_ajim-22651

1105eng

victoria-ombudsman-worksafe-report_sep-2016-final

Paul Smith | 20 September, 2016 |

Insurance agents “shopped” for doctors whose clinical opinion they could use to reject compensation claims, an inquiry has revealed. The damning conclusions into Victoria’s WorkSafe scheme are the result of an inquiry by the state ombudsman.
The inquiry found that insurance companies working for the scheme, which is meant to fund rehabilitation and compensation to those injured in the workplace, were using a range of dirty tricks to avoid paying out.
In one case, an individual killed themself after losing medical treatments for a stress disorder resulting from workplace sexual assault and harassment (see box below for full details).
One of their children told the ombudsman: “While my [parent] was cut off from [their] medical expenses … we struggled to keep up with them.
“[Their] treatment was denied and the sheer stress and anxiety caused [them to] get worse and I watched [them] lose all hope …
“My [parent] proceeded to commit suicide … and passed away … [A few days later] I received letters … stating that every program had been approved and their medical expenses reinstated.
“I burst into tears and couldn’t look at them …
“The help that the treatments could have given my [parent] are unimaginable … [they] may still be alive …”
In all, five insurance companies operated as agents for the WorkSafe scheme — including Allianz, CGU, QBE and Gallagher Bassett.
But according to Victorian Ombudsman Deborah Glass, vulnerable people were harmed as a result of cases being deliberately delayed or cancelled on flimsy medical pretexts.
Ms Glass said, under the scheme, the agents paid independent medical examiners (IMEs) to carry out assessment on claimants.
The results of these assessment were meant to be used by the agent to make informed decisions about a worker’s entitlements — both to compensation payments as well as medical services.
However, she said some agents “doctor shopped”, simply chosing IMEs on the basis that they were good for the terminations of payments.
Another tactic used by the agents was simply to cherry-pick the findings of the medical assessments, in some cases using just one line an IME report to reject a claim.
“There were also cases in which agents had failed to provide crucial background information about injured workers to IMEs when they were forming their opinion,” Ms Glass wrote.
One injured worker complained to CGU, saying: “My issue is that you have only included half of the information on the referral provided by [my GP] …
“By reading this full referral and not selectively removing elements that are detrimental to your justification, it can clearly be seen that the injured … [arm] is directly related to my approved workcover claim for PTSD. I find it quite disturbing that you feel that you can use poetic licence on a medical document to add weight to your decision.”
Ms Glass said, in general, the WorkSafe scheme, which deals with some 90,000 claims every year, worked.
But she said it became clear that with complex cases — about 20% of the workload — a high proportion of claims were rejected by the agents only to be subsequently overturned on appeal.
She said, in some cases, agents made unreasonable decisions “in order to achieve the financial rewards” available under their contracts with the Victorian Government.
“There is also evidence that four of the five agents manipulated, or that staff contemplated manipulating, claims in order to achieve the financial rewards or avoid penalties,” she added.
Case study: Injured worker suicides after entitlements are finally reinstated
A business manager lodged a claim with CGU for a psychological condition that developed after having been sexually harassed and assaulted by their boss.
CGU initially rejected the claim. After disputing the matter at conciliation, the case proceeded to the magistrates court — over a year after the initial rejection.
The magistrate found that “serious sexual misconduct and harassment” had occurred and that the worker had sustained a work-related injury as a result, which had rendered them incapacitated and needing medical treatment.
Over the coming years, CGU received several medical reports from both IMEs and the worker’s doctors.
These reports provided relatively consistent opinions on the worker’s condition and incapacity for work.
CGU funded a range of treatments for the worker, including sessions with a psychiatrist, medication, psychiatric inpatient stays and day programs.
CGU did not provide relevant historical records to an IME
Following a request in mid-2015 from the worker’s treating psychiatrist for the worker to participate in further programs, CGU sent the worker to be examined by an IME.
CGU stated the purpose of the examination was to obtain an opinion on the reasonableness of the requested programs, whether the worker’s condition continued to be work-related and whether the treatment they were receiving was reasonable.
In its request to the IME, CGU failed to provide any historical medical reports from the time of the worker’s initial diagnosis and claim acceptance. Nor did it provide any details regarding the court finding.
In her report to CGU, the IME provided a different diagnosis to the worker’s treating psychiatrist and previous IMEs.
The IME concluded that as a result of the work incident, the worker had suffered a work-related aggravation of a pre-existing condition, but that the work-related aggravation had now ceased.
She stated the worker would continue to require treatment indefinitely but this was no longer for a work-related injury.
On numerous occasions in her report, the IME noted the lack of documentation and information provided to her by CGU.
She made comments such as “I was not provided any documentation to assist”, “based on my clinical examination but no further evidence provided …” and “I would have been assisted in providing this report by additional documentation in order to answer the specific questions posed for the examination in more depth”.
On the basis of the IME report, CGU rejected the request for program support and terminated all entitlements.
Based solely on the IME report, CGU issued notices to the worker rejecting the request for the further programs and terminating all of their entitlements.
The notices made no reference to other medical evidence, such as reports from the worker’s treating psychiatrist, which did not support the decisions.
Nor did CGU document any rationale as to why they chose to rely solely on the IME’s opinion over all other available evidence.
The worker subsequently lodged a request for conciliation.
CGU failed to provide relevant history a second time
In a supplementary report, the IME again confirmed the worker required treatment but stated she considered the worker’s work injury had ceased, instead referring to a pre-existing condition.
Again, the IME made comments about the lack of information provided by CGU, including that she had “not been provided with sufficient information to make connection between this deterioration in mental state and work related injury which occurred in [the mid-2000s]”.
CGU provided partial history when requesting a second supplementary report
Following concerns raised by the worker’s treating psychiatrist and the provision of further medical evidence to CGU supporting an ongoing nexus between the worker’s condition and work-related incidents, CGU sought a second supplementary report from the IME. In this request, CGU provided the IME with copies of two previous IME reports as well as recent reports from the worker’s doctors.
However, CGU again failed to provide any information about the Magistrates Court finding on which CGU’s acceptance of the claim was based.
In response, the IME again noted that “the circumstances of [the] events/sexual assaults are not clear”.
Following Medical Panel opinion, CGU’s decision was overturned
Further medical reports provided to the Accident Compensation Conciliation Service (ACCS) for the purpose of conciliation supported the treating psychiatrist’s view on the continuing relationship between the worker’s condition and workplace incidents.
The ACCS referred the matter to a Medical Panel, which concluded that the claimed work-related injury still materially contributed to the worker’s condition.
The Medical Panel noted the IME’s opinion; however, it stated “on the basis of its own history taking and examination and clinical judgement and experience, the Panel formed a different diagnostic opinion”.
The panel also noted that its opinion regarding the worker’s diagnosis was consistent with all other medical evidence, with the exception of one IME — the IME used by CGU to terminate the claim.
CGU reinstated the worker’s entitlements and approved the requested programs on the basis of the Medical Panel opinion. Sadly, however, the worker committed suicide shortly after this decision.
In response to the draft report, CGU stated:
“Mental health and suicide is complicated and there are a multitude of factors that can play a part in suicide. The indications are that there are matters outside of just the work related component that may have contributed.
“We note that the IME has noted that she was not provided with information relating to the workplace incident that caused the initial injury.
“The matters surrounding the incident were not in dispute.
“The claim was subject of a Magistrates Court hearing where the Magistrate found in favour of the injured worker and CGU has not disputed the injured worker’s allegations surrounding the workplace incident.
“CGU would note that the IME was provided with previous IME reports … which themselves reference earlier material. CGU acknowledges that improvements can be made to the decision making around information that is provided to IMEs …”
Source: Victorian Ombudsman report: Investigation into the management of complex workers compensation claims and WorkSafe oversight

Sara Mojtehedzadeh
The Toronto Star , July 23, 2016

The number of complaints made to the provincial watchdog about Ontario’s worker compensation system has jumped by almost 20 per cent over the past year, the Star has learned. Nearly 600 complaints were made to the ombudsman about the Workplace Safety and Insurance Board (WSIB) between last April and March of this year, according to statistics requested by the Star – a spike from 2014/15, when the watchdog received about 480 grievances about the board. A further 141 complaints have been lodged in the past three-and-a-half-months.

The increase comes as doctors, labour groups and injured-worker advocates call for a formal investigation into the WSIB, alleging that “systematic disregard” for medical advice given by accident victims’ own doctors. That, critics say, often leads to workers being unfairly kicked off benefits.

“I feel like it’s a pretty strong indication to the ombudsman that external intervention is needed,” said Aidan MacDonald, of the Injured Workers’ Consultants Community Legal Clinic.

“People don’t seem to be able to trust the WSIB to fix its own problems, so I think this does support our request that a full investigation by the ombudsman is necessary to hold the WSIB accountable for its systemic injustices.”

In an emailed statement, a spokesperson for the board said it was “misleading” to suggest there had been a significant increase in complaints, because the number in 2014/15 dipped somewhat compared with previous years. From 2011 to 2013, an average of 580 WSIB complaints were lodged with the ombudsman.

“We track the numbers of complaints received by the ombudsman and treat them very seriously. The number of complaints has remained relatively constant over the past five years,” the statement said, adding that the number of grievances made to the board’s internal Fair Practices Commission declined over the past five years.

Linda Williamson, a spokeswoman for the provincial ombudsman, said she could not comment on whether the recent increase in complaints would affect the organization’s decision to investigate, which has yet to be finalized. “Generally speaking, although complaint volume can be a consideration, it is just one of many factors the ombudsman reviews in deciding whether or not to launch an investigation,” she said.

“WSIB has consistently been among the top five or top 10 most complained-about provincial government organizations over the past several years.”

Last year, the WSIB received the fourth-highest number of complaints of any provincial government organization. Williamson said she did not know how the board currently ranks, as the figures would be released in the watchdog’s annual report this fall.

In an ongoing investigation into board practices, the Star has detailed allegations of unfair – and even unlawful – cost-cutting measures that critics say came at the expense of some of the province’s most vulnerable workers. These include the use of so-called paper doctors, who review injured workers’ files without ever examining them in person, and wrongly attributing accident victims’ symptoms to “pre-existing conditions” so as to reduce compensation.

The number of complaints against the board’s independent appeals tribunal has also increased since last year, from 99 complaints to 128 – a 23-per-cent increase. As previously reported by the Star, the tribunal has been an important avenue for workers to challenge board decisions, but has been hampered by massive backlogs.

“Injured workers are just being cut off benefits,” Macdonald said. “They’re being denied treatment that they need, they’re being denied
medication that they need.”

Injured workers by the numbers WSIB complaints at provincial ombudsman’s office:
2015/16: 595
2014/15: 481
2013/14: 552
2012/13: 609
2011/12: 582
Complaints at WSIB’s internal ombudsman:
2015: 1,627
2014: 1,875
2013: 1,924
2012: 2,523
2011: 2,567

Sara Mojtehedzadeh (STAR TOUCH)

For 17 years, Mark Winegarden dedicated himself to the care of others as a Wasaga Beach paramedic. But he says that when he needed care himself following a workplace injury, the system failed him.

Four years after making a successful Workplace Safety and Insurance Board claim for an injured lower back, Winegarden was abruptly cut off benefits when the board revisited his file. The sudden ruling concluded his symptoms actually stemmed from a “pre-existing condition” rather than his traumatic accident — a reversal that advocates for injured workers say is unlawful but increasingly common.

Indeed, the board’s own independent appeals tribunal is systematically rejecting decisions to slash benefits based on alleged pre-existing conditions, a Star analysis has found. Since 2012, about 80 per cent of injured workers’ appeals on that issue have been successful, according to a tally of tribunal rulings.

“It’s depressing in the extreme to witness a major institution like the board operating in a manner that puts the administration of justice into disrepute and being allowed to get away with it,” said Ron Ellis, a noted legal expert who served as the first chair of the board’s independent tribunal from 1985 to 1997.

“The impact on the injured workers it affects is dramatic, but the rest of us should be ashamed of it from a rule-of-law perspective.”

Critics say the rate at which the WSIB’s decisions on the issue are being slapped down suggests it regularly violates the legal tenet underpinning the entire workers’ compensation system: the thin-skull doctrine, which says injured workers cannot be denied benefits for health conditions that never interfered with their work abilities before an accident.

The result, critics argue, is that vulnerable workers are forced into protracted confrontations with the board if they want to win the compensation they are legally entitled to.

Responding to a list of questions from the Star, board spokesperson Christine Arnott said the board had recognized there was a “growing challenge in adjudicating claims with pre-existing conditions” and a “risk of inconsistency.” As a result, the WSIB introduced a new policy on pre-existing conditions in 2014, which Arnott said is compatible with the thin-skull principle and “provides consistency in decision making and alignment with other jurisdictions.”

Because of the backlog at the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the board’s 2014 guidelines have yet to be tested. But Ellis believes the new policy, which says pre-existing conditions can be considered if they are shown “to contribute to the degree of (a worker’s) permanent impairment,” could still be unlawful.

“I have yet to see the legal opinion in which (the board) argues the legal merits of their new policy,” Ellis told the Star. “They appear to have decided it was cheaper to overrule the thin-skull doctrine.”

Reviewing WSIAT’s rulings over the past three years on files involving pre-existing conditions, the Star found at least 60 successful appeals. The board’s decisions were upheld just 15 times.

The thin-skull doctrine has been repeatedly affirmed as a vital part of workers’ compensation. In 1950, a Royal Commission on the subject decreed that “all workmen are entitled to the full protection under the Act without any discrimination based on their physical condition.” In 1998, the WSIB’s own legal counsel, Paul Holyoke, called the thin-skull principle the “cornerstone” of the province’s workers’ compensation system.

Yet it took Mark Winegarden three years to win back the benefits he was legally entitled to based on that principle.

“You hate being judged as that guy who is abusing the system. And it comes from your peers. It comes from your neighbours. It comes from a lot of people. It’s demoralizing,” he told the Star.

The 54-year-old hurt his back in 2007 while lifting a 200-pound patient, forcing the previously active and energetic paramedic to undergo surgery. The board gave him a relatively high permanent impairment rating at 32 per cent.

But in 2012, the board suddenly cancelled Winegarden’s claim. According to his case documents, the WSIB reviewed his file, drawing on the advice of a medical consultant who had never even examined Winegarden.

That consultant said his ongoing suffering was related to a pre-existing condition rather than his workplace accident.

In 2015, the appeals tribunal ruled that the board’s medical consultant was not “persuasive” because he “did not provide reasons to support his conclusion.” While Winegarden did have a pre-existing back condition, the tribunal found there was “no evidence of significance” to suggest it had interfered with his work until his accident — meaning he could not be denied benefits by the board.

The WSIB did not comment on Winegarden’s case, but said in an emailed statement that it “operates under a wage loss system which is designed to provide ongoing compensation to injured workers for wages they’ve lost as a result of workplace injuries/illnesses. Because of this, we have an obligation to assess entitlement to benefits throughout the life of a claim on an ongoing basis.”

Critics argue the board has sought to more aggressively identify pre-existing conditions as a means of reducing benefit entitlement since 2010, when then-president David Marshall was tasked with cutting the WSIB’s $12 billion unfunded liability.

The change has been most marked since 2012, Ellis says, when the board hired a Dr. Christopher Brigham to review its policy on permanent impairments. The ensuing report suggested the board consider any pre-existing conditions workers might have had when ruling on compensation.

As reported by the Star, Brigham previously ran a U.S.-based “workers’ compensation cost containment” company, and is embroiled in a legal battle there over an alleged “scheme” to unfairly cut accident victims off insurance benefits. The allegations have not been proven in court. Brigham described himself to the Star as a “strong advocate for those who are recovering from injury.”

While the WSIB has now been forced by its appeals tribunal to revive his benefits, Winegarden says it’s been something of a pyrrhic victory.

The board has since told him he could be working at a customer service job — and has cut back his entitlement accordingly.

Meanwhile, Winegarden says, he suffers from chronic pain after his surgery left him with severe keloid scarring, an overgrowth of scar tissue on his spine. The pain leaves him bed-bound three to four times a week, he says; he uses a catheter to empty his bladder and is on 200 mg of morphine daily to treat his symptoms.

“There are days that I just feel like a complete failure,” he said.

“I had so much guilt because of all the people I had picked up over the years (as a paramedic) who I had decided that they were just seeking medication,” he added.

But even when accident victims are in the right, Winegarden says, he believes the emotional toll of fighting the board’s decisions is too high for many.

“The (board) knows a certain percentage are just going to abandon their claims. A certain percentage are going to fight, but they won’t have the resources,” he said.

“There’s no penalty for the board having behaved like that.”

http://startouch.thestar.com/screens/0cd59b8d-13f9-4567-a3f6-a495a8e6510a%7C_0.html

The Supreme Court of Canada ruled 7-1 Friday that workers who become ill due to a possibly toxic workplace don’t need to prove their case with scientific certainty in order to collect workers’ compensation benefits.

Kristina Hammer, Patricia Schmidt and Anne MacFarlane are three of seven lab technicians out of a total of 63 who developed breast cancer after working at a Mission B.C. hospital over a 20 year period. Their cancers occurred at a rate 8 times higher than in the normal population.

The women blamed their work environment which, especially early in their careers, meant working with solvents and reagents containing known carcinogens. Until 1994 the air intake vent of their lab was near the hospital incinerator that burned medical waste containing plastics and chemicals.

Claiming their high incidence of breast cancer, known as a “cancer cluster”, was an “occupational disease”, the women applied for compensation under the province’s workers’ compensation insurance program. They were turned down, but they appealed to the Workers’ Compensation Appeal Tribunal and won.

But the Fraser Health Authority that oversees the Mission hospital fought back, and took the case out of the workers’ comp arena into the courts, asking for a judicial review.

A lower court judge in B.C. found “no evidence” the women’s breast cancer was caused by the lab, and the B.C. Court of Appeal, in a 3-2 split decision, agreed there was some causative evidence but ruled “something more was required.”

The legal question asked by the women before the nation’s top court is whether they needed expert evidence to prove their cancers were caused by the workplace.
The top court answered they did not. Justice Russell Brown, writing for the majority, said, “Causation can be inferred — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence.”

Workers covered by workers’ compensation do not need to establish causation on a balance of probabilities, as would be required in a civil court, Brown continued.

“The workplace need only be of causative significance or more than a trivial or insignificant aspect in the development of the a worker’s illness,” he said.

His reasoning looks back to the foundation of the workers’ compensation system, which was set up as a “historic compromise” that sees workers giving up the right to sue their employers over workplace injuries in exchange for no-fault compensation.
If the evidence is evenly weighed but not conclusive, the issue is supposed to be resolved in favour of the workers.

The three women had argued that the majority decision by the three judges on the B.C. Court of Appeal court imposed a new standard of proof: one of scientific certainty. This “would make it virtually impossible for women to be compensated for occupationally induced cancer, thereby frustrating the purpose of the workers’ compensation scheme,” their factum filed with the top court says.

The top court agreed with them, with Brown writing, “This standard (of scientific certainty) is wholly inapplicable to determining causation in the workers’ claim.”
On the opposing side, the Fraser Health Authority that argued a favourable decision for the women could result in any employee who develops cancer demanding compensation. It pointed out that Hammer had other risk factors: she had never given birth and her periods started before she was 13.

The top court said not every employee who develops cancer can blame it on the workplace.

“This does not mean that evidence of relevant historical exposures followed by a statistically significant cluster of cases will, on its own, always suffice to support a finding that a worker’s breast cancer was caused by an occupational disease. It does mean, however, that it may suffice,” the court said.

An intervener in the case, a group representing injured workers and victims of industrial accidents, said requiring scientific certainty meant workers waited decades before being able to receive compensation for handling asbestos even though private insurance companies had already stopped covering such employees because it was known asbestos was dangerous.

Justice Suzanne Côté, in a strong dissension, declared the majority court’s decision Friday could lead to a “wilderness of mere speculation or conjecture” about causes of illness. “There is not evidence – and certainly no positive evidence – capable of supporting a finding of causative significance,” she wrote.