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.

A Joint Project of the Canadian Injured Workers Alliance (CIWA) and the Canadian Pain Coalition (CPC)

CIWA and CPC have undertaken to collaborate on an exciting project involving research and development of a tool kit for those dealing with returning to work after sustaining an injury. A main focus of the project is dealing with a return to work plan while trying to manage chronic pain.
We have received funding assistance from the Federal government’s Human Resources and Skills Development Canada (HRSDC) to move forward with this project.
To date, this project has involved research through engaging a research specialist to do a literature review, both domestic and international. We have formed a steering committee consisting of the President of the CPC Lynn Cooper, the National Coordinator of CIWA Bill Chedore, Dr. Lynn Shaw PHD and Dr. Mikelle Bryson Campbell PHD.
We have collected a wealth of information through our research and presented it for review, input and recommendations at two different forums. Our initial forum was held in Toronto in November 2015 and the second forum was in March 2016, also in Toronto.
Both forums were attended by invited experts on the issue of pain and on the issue of return to work. These experts included family doctors, occupational therapists, physio therapists, psychologists, pain researches and clinicians, labour representatives, injured workers and insurance specialists.
We are currently compiling all of the information, forum participants’ comments and recommendations. We will be looking at our next steps for developing a working tool kit, which we hope will become a resource for injured workers and family members, medical practitioners, health care providers, employers, trainers in the medical field and insurance providers, including provincial Workers’ Compensation Boards.
Every year, there are over 1000 workers who will die in Canada from worker related injuries or exposure to carcinogens and toxins. There will be close to 1,000,000 workplace injuries, thousands of which will result in workers being afflicted with chronic pain.
It is estimated that 1 in 5 Canadians are dealing with chronic pain. It is also estimated that the yearly cost to the Canadian econommy may be as high as 50 billion dollars or more.
Our hope is that this joint project by CIWA and CPC will produce new and/or improved resources to help injured workers in their desire to return to work and live with a sustainable way to manage their pain.
We will be posting updates as our poject moves forward.

Letter signed by more than 140 doctors, legal clinics, and labour groups, expresses deep concern about injured workers who are increasingly unable to get the treatment their doctors recommend.

By SARA MOJTEHEDZADEHWork and Wealth reporter, The Star
5:00 AM, Fri., June 10, 2016

Dramatic changes to health-care services for injured workers, including a 40 per cent funding drop in rehabilitative treatment and a 30 per cent drop in drug benefit spending, is having a “devastating” impact on some of the province’s most vulnerable citizens, according to a letter obtained by the Star.

The letter, to be delivered Friday to senior Ontario government figures and signed by more than 140 doctors, legal clinics and labour groups, expresses deep concern about injured workers who are increasingly unable to get the treatment their doctors recommend because of significant health-care changes at the Workplace Safety and Insurance Board. The letter claims that shift is designed by the board to cut costs at the expense of injured workers.

“We only have one body,” said Indira Rupchand, 56, who hurt her back three years ago on a manufacturing production line. “If we are hurt at work, I think we deserve to be treated with dignity and get the treatment that is recommended. Many times we are railroaded.”

The board has moved away from relying on the medical advice of injured workers’ own doctors in favour of opinions provided by physicians in specialty clinics contracted by the WSIB, according to the letter. The board has doubled its spending on such clinics over the past 10 years.

WSIB has responded to criticisms of its health services, including a formal complaint to Ontario’s ombudsman by injured worker advocates, by saying that it has “confidence in the integrity of Ontario’s health-care professionals” and that it “acts quickly to ensure workers receive timely, specialized medical care.”

But critics say specialty clinics’ treatment programs often push injured workers back on the job before they are ready and set unrealistic recovery dates. Workers’ benefits are frequently cut off according to those recovery timelines, without the board ever following up with the worker or their doctor about their health.

“It turns the focus away from health care and toward a date,” said Maryth Yachnin, a lawyer with the Industrial Accident Victims Group of Ontario (IAVGO).

Meanwhile, the board has cut its spending on drug benefits by close to 30 per cent since 2009, according to the letter. Funding for services like physiotherapy and psychological treatment provided by doctors not affiliated with the board also plummeted by 40 per cent between 2005 and 2014. That statistic was obtained by IAVGO through a freedom of information request.

Such rehabilitative services are often vital for real, long-term recovery, Yachnin says, and are frequently recommended by injured workers’ own doctors — only to be ignored by the board.

“(Workers) feel like they are coming up against a wall when they’re trying to get services that will actually help them recover,” she told the Star. “They don’t listen to workers’ doctors and specialists.”

When it comes to the WSIB’s own specialty clinics, the board is “setting the terms and conditions of what the (clinics) reports are providing,” she added. “They set out the specific way they want doctors to frame their answers . . . the answers are generally not as candid as you might see from the workers’ (own) doctors in our experience.”

Questions about the WSIB’s health-care provision have already been raised: as reported by the Star, a Hamilton-area doctor is currently suing the board and one of its private health-services contractors, claiming she was terminated after delivering a medical opinion that did not suit the WSIB.

After injuring her back in 2013, Rupchand says she received just a couple of physiotherapy sessions through one of the WSIB’s specialty clinics before being told to start working again. The stress of working while still injured was the start of a downward spiral, according to the Toronto-area resident who says she has since contemplated suicide as a result of her ordeal, and is currently separated from her kids.

“All this is a systematic thing with injured workers,” said Rupchand, who is helping to organize a day of action on Friday to raise awareness about the issue. “I’ve heard people going through this so many times.”

“It’s causing a lot of stress. I’m a single mother and it’s hard. That’s why I’m still feeling pain and that’s why it’s so important that the WSIB listens to treating doctors,” she added.

“As injured workers, they don’t believe us. I was never believed.”

With files from Jacques Gallant

This is the letter I just sent to the Globe & Mail. Please feel free to circulate widely to encourage others to write.

Margery
________________________________________
From: flyerwardle@hotmail.com
To: letters@globeandmail.com
Subject: Ontario doctor’s suit claims pattern of fraud at workplace safety board, Sept. 23/15
Date: Wed, 30 Sep 2015 18:12:46 -0400

I’d like to express my appreciation and support to Dr. Steinnagel for her courage in speaking out and for standing by her professional medical opinion of the injured worker she assessed.
Our members have been hearing similar complaints from treating physicians and other health care professionals for years. Indeed, many doctors simply refuse at the outset to treat injured workers, telling the patient they find it too frustrating and time-consuming to deal with WSIB. This forces the injured worker to ‘shop around’ for another doctor willing to accept a new, high-maintenance patient, which of course, is very hard to find.
Therefore, I’d like to encourage other doctors and health care professionals who’ve experienced these kinds of difficulties dealing with WSIB to come forward and speak the truth.
In addition, I call upon the WSIB to publicly release data indicating how many diagnoses and prognoses by treating physicians and specialists have been over-ruled by the WSIB’s doctors-for-hire in the past 20 years.

Margery Wardle
Vice President, Northeastern Region
Ontario Network of Injured Workers’ Groups (ONIWG)
Ottawa office: 613-567-5872

AUGUST 24, 2015 A Great Workers Compensation Article, By Greg Snider
The first article in a series examining how to make a real Workers Compensation Program. This article takes a look at who should administer.
Check it out.
How do we perceive ourselves after a disability?

Here’s a video of Peter Page & Richard Hudon’s bike treck to Ottawa …
Injured Workers Cycle for Awareness