ONTARIO NURSES ASSOCIATION

Transcription

1 ONTARIO NURSES ASSOCIATION Submission to the 2012 Benefits Policy Review on Recurrences Work Disruptions Permanent Impairments Aggravation Basis November 13, 2012 ONTARIO NURSES ASSOCIATION 85 Grenville Street, Suite 400 Toronto, ON M5S 3A2 Phone: (416) Fax: (416) Web site:

2 Ontario Nurses Association/November 13, 2012 Page 2 Introduction The Ontario Nurses Association (ONA) is the union representing 59,000 front-line registered nurses and allied health professionals and more than 13,000 nursing student affiliates, providing care in Ontario hospitals, long-term care facilities, public health, the community, clinics and industry. General Comments/concerns Over the last year and a half we have seen more claims denied by the Workplace Safety and Insurance Board (WSIB) and a more aggressive and uncaring WSIB approach to problems with claims adjudication than ever before. We have raised concerns with WSIB senior leadership in the past and are convinced the issues we are seeing are a result of the direction WSIB decisionmakers are receiving from senior leadership. In reviewing the section of your discussion paper entitled Focusing on improving the four policy areas, ONA cannot help but question WSIB s intentions. For some time now we have heard from WSIB staff that they have been given direction from senior leaders at the WSIB to: Question all cases before the 72-month lock-in, even in cases where previous decisions about workers not being employable have already been made. To austerely question any case with a pre-existing condition (symptomatic or not). In the situations we have been made aware of, the decision-makers are not even considering the legal test of significant contribution. Your discussion paper openly states that senior WSIB officials have indicated their concerns about the passage of time and the potential for intervening events or causes, such as degeneration/ageing and the sorting out of work-related versus non-work-related factors. This concerns us however we were encouraged in reviewing your discussion paper that the underlying concepts of the policies in this review are not up for grabs. The other trend we are already seeing at WSIB is to ignore medical reports that support a worker s entitlement to benefits, and rely on a few studies (medical science) the Board has obtained that in their opinion supports denying a case. Therefore, although we are pleased WSIB has agreed to this review, we question its sincerity and true willingness to implement any recommendations coming out of the review that may support an injured worker s entitlement to benefits under the Workplace Safety and Insurance Act (WSIA). Based on our experience, it appears WSIB has a pre-set agenda to reduce the unfunded liability off the backs of these most vulnerable workers. We agree with three of your four objectives for this review, but for the reasons stated above, we are skeptical that objective four may assist WSIB in what we believe is its mission to deny cases using any medical science as the grounds to do so. ONA remembers vividly what our members went through in 2003 when the experts relied on what they believed to be medical science to guide and protect Ontario health care workers through the SARS outbreak. They did not apply the precautionary principle and relied on research that supported their position, despite reports from front-line nurses that the Ministry of Health and Long-Term Care (MOHLTC) directives were not adequately protecting workers. Two of our members died during SARS, and when looking back at what might have saved their lives, it was not medical science at that time but acting on reports from front-line workers and exercising the precautionary principle. So often we get cases where a member was denied benefits because the WSIB decision-maker has ignored what a worker is telling them, ignored the facts in the case and has not properly weighed the medical evidence in the file. There is also unwillingness, particularly at the

3 Ontario Nurses Association/November 13, 2012 Page 3 operations level, to clarify or obtain medical evidence and/or opinions when disputes arise on causation or work contribution. Instead, the decision-makers have often relied on guidelines for the normally healing time or some selected medical study to deny a case, instead of judging the case on its own individual merits and justice. WSIB could avoid many appeals and the associated exorbitant costs to the system by applying to its decision-making process the precautionary principle and the principles of compensation law. There is a purpose for medical science, especially when there is an impact or improvement in some area. Medical science has provided remedies, cures and safeguards for the public against various diseases. For instance, in the advancement of medical treatment for various conditions, research could be used to better treat an injured worker s condition before a disability or impairment sets in or the condition deteriorates into a permanent impairment. However, there are many problems with traditional means of measuring the impact of medical science. It is rare that one piece of research will lead to impact by itself; more often it is the sum of many pieces of work over many years that produce applicable results. Researchers/scientists also write from a scientific perspective, not from a legal perspective. WSIB decision-makers must reach a conclusion while researchers/scientists do not have to. One study may reach one conclusion while another study reaches an entirely different conclusion. Therefore, extreme caution must be taken by WSIB decision-makers who are not trained to interpret scientific evidence and may rely on the conclusions of one report to deny a case. Furthermore, scientific evidence does not take into consideration the workplace factors to which a particular injured worker was exposed. Therefore, one question that must be answered when weighed against other studies and real workplace factors associated with the injured worker is how reliable and applicable is the scientific evidence. Legal consideration must also be examined as to the hypothesis for which the scientist is attempting to prove with the research when determining the weight to be applied to a specific research study. In the context of decision-making, the general legal principles of workers compensation law should always consider if the work or conditions at the workplace were a significant contributing factor to the worker s disability. Medical research rarely, if at all, will study the biomechanics of an individual in question on a specific job for which he or she is claiming entitlement. Instead, it usually delves into a research project involving a group of workers not related to the specifics of a particular case. Therefore, although medical science may be interesting and pave the way for more research, it should not in any way take over the decision-making process or override the real merits and justice of a particular case. In our view, WSIB is using Insurance principles in adjudication whereas, as stated in your discussion paper, The policies should be consistent with the Act and the foundational Meredith principles that underpin the workers compensation system. Medical science has not been reliable in many ONA situations/cases. For example, between 1990 and 1992, an ONA member took ill while working in the dialysis unit of a large hospital where she was exposed to glutaraldehyde, which was contained in the sterilizing agent Nephrex, used to clean kidney dialysis machines. The nurse was part-time with no sick-time benefits, so she continued to work ill. After extensive exposure to glutaraldehyde, the Reuse Room was finally shut down after the discovery of leaks in the ventilation system. At that time, the workers in the Dialysis Unit also learned that exposure to Nephrex could have increased the mortality of their patients. The worker stated this information had a very significant effect on her, leaving her with a sense that she killed her patients and because of the

4 Ontario Nurses Association/November 13, 2012 Page 4 exposure her patients experienced in the Dialysis Unit, she also believed she could die from the exposure. Her claim was initially allowed for the short-term exposure, but once the employer stopped the reuse system, WSIB immediately terminated the benefits, stating that medical science does not support any long-term organic health effects. It amazed us that somehow WSIB could just wash their hands of a claim because they felt there was no scientific research that showed a relationship between exposure to glutaraldehyde and long-term organic health effects. Our research showed that the long-term health effects had not been studied, but there was plenty of research in the short-term that supported the symptom effect of such an exposure. WSIB, however, in their good wisdom, used this absence of science in the long-term to deny it. In other words, WSIB allowed benefits when there was evidence of short-term effects of an exposure in the workplace, but then denied benefits when there was an absence of medical science to prove long-term effects. Compensation law does not require proof; the legal principle is balance of probabilities. Yes the case was won at the tribunal and the tribunal did consider the medical literature on short-term exposure, along with the injuring process/exposure and the medical reports on file. The case, as it should have been, was determined on its own individual merits and justice of the case and a causal link was established. We therefore believe extreme caution must be taken when recommending the use of scientific evidence in the decision-making process. We believe it would be more beneficial if WSIB focused on advances in medical science that are actually proven to help lessen the impact of an injury or illness and assist in the healing process. It is our position, based on our experiences at WSIB, that many WSIB decision-makers use medical science selectively to achieve the desired conclusion. Another example of clear WSIB disregard for advances in medical science is with physiotherapy and chiropractic treatment. Medical science may suggest that physiotherapy/chiropractic care following certain types of injuries can reduce the impact of an injury and assist in keeping a worker on the job. Rather than monitor a worker s progress and truly consider the benefit the worker states they are receiving from such therapy, WSIB usually makes it difficult for any worker to access more than 12 weeks of physiotherapy. Most workers have to fight WSIB for any additional physiotherapy or chiropractic care. If a worker requires maintenance treatment from either of these specialties, WSIB will almost always deny the treatment rather than allow the measly amount they pay chiropractors or physiotherapists for this service, even if it means the worker can no longer continue to work without the treatment. In those cases, WSIB simply denies all entitlement to the case and simply states that in its opinion the worker is not cooperating in return-to-work efforts. If you are going to make any recommendations around the use of medical science, we urge you to make recommendations that enhance treatment opportunities for injured workers. Medical science in the workplace can be a useful tool, particularly in understanding a particular process or substance, etc., and ensuring Ontario employers are taking every precaution reasonable in the circumstances for the protection of a worker (OHSA section 25 (2) (h). WSIB was in charge of prevention for years and yet we ask, what did it ever do proactively (after learning of a worker s disease or injury) to ensure an employer was complying with the OHSA? What did it ever do to ensure no other worker would be exposed to a similar process or substance in the workplace? Instead, WSIB uses the absence of, or the existence of some medical science to punish many of the most vulnerable workers and deny their entitlement to

5 Ontario Nurses Association/November 13, 2012 Page 5 WSIB benefits, without even applying the significant contribution test. Justice Campbell, in his final SARS Commission report, so eloquently stated we should not have to wait for scientific certainty before taking action to reduce the risk. When WSIB ignores a worker s statement, ignores supportive medical evidence and denies cases because of selective medical science or the lack of medical certainty, it does a disservice to these vulnerable injured workers and to the system. It is crucial that WSIB become involved early to try and help lessen the impact of an injury and not make it worse by a restrictive application of WSIB policies. Apply the Precautionary Principle WSIB officials and decision makers could learn a lot from Justice Campbell. WSIB was certainly not exempt from his number one recommendation on the precautionary principle, which states: action to reduce risk need not await scientific certainty, be expressly adopted as a guiding principle throughout Ontario s health, public health and worker safety systems by way of policy statement, by explicit reference in all relevant operational standards and directions, and by way of inclusion, through preamble, statement of principle, or otherwise, in the Occupational Health and Safety Act, the Health Protection and Promotion Act, and all relevant health statutes and regulations. The precautionary principle, which is about erring on the side of caution, needs to be applied by WSIB during its decision-making process. Further, any recommendation regarding WSIB policies should make reference to how the precautionary principle must be applied in the decision-making process. We were told by senior WSIB officials years ago that WSIB decisionmakers are not even trained in weighing evidence nor are they trained in understanding how the OHSA should apply in their decision-making process. This is a huge gap in the system, and may explain why decision-makers/officials are seeking more criteria or thresholds that we believe will only enable them further to deny a claim. We believe a recommendation requiring training for all decision-makers in weighing evidence and understanding how to apply the OHSA in the decision-making process will alleviate a lot of the decision-makers concerns, as it will give them a new confidence to accurately and consistently apply even the existing policies. In many cases, WSIB decisions are also putting workers at risk instead of assisting them in finding solutions to deal with their injuries and illnesses. It appears to ONA that WSIB devotes too much time and effort in finding a scientific report or opinion that may support a WSIB position to deny entitlement. Instead, where there is scientific uncertainly or the medical evidence is not clear, WSIB officials and decision-makers should not risk a worker s health and safety by threatening to reduce benefits because of one negative opinion or study. Rather, it should spend more time and attention on helping workers and employers remove the barriers of a disability so the worker can return to safe and gainful employment earlier on. Future Reviews We are very pleased these policies are being independently reviewed by you with stakeholder input, and fully support this process. We ask that you make a recommendation to WSIB that would promote future policy reviews to be conducted through a similar process. Recurrences Current Policy A worker is entitled to benefits for a recurrence of a work-related injury or disease. A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, WSIB must confirm that there is clinical compatibility between

6 Ontario Nurses Association/November 13, 2012 Page 6 the original injury or disease and the current condition, or a combination of clinical compatibility and continuity. When there is strong evidence of clinical compatibility, proof of continuity will not be necessary. If a significant new work-related accident occurs, the WSIB establishes a new claim. The recurrence policy for the most part is actually very practical, clear on the intent and consistent with the WSIA, general principles of compensation law and Meredith s Principles. The only change that might assist decision-makers in better applying the policy is to be clearer about the relationship between compatibility and continuity as is bolded above. There are many cases where a worker s recurrence can be clearly compatible to the workplace injury without having to confirm continuity as well. For instance, in cases where a worker has received a pension or NEL award, it should simply be a question of is the current condition compatible and if so is lost time in order? Wear and tear placed on the injury site over the years can cause the tissues to break down to a point that one day it flares up, even though nothing specific occurred to cause it to do so. The problem we experience with our members claims is that decision-makers only read the last part of paragraph 2 from the policy, and almost always insist they have to establish compatibility and continuity. They then make enquiries to determine if something different or new at work is responsible for the recurrence. We believe adding the sentence above in red will make the policy clearer and more precise. Where a worker has been awarded a permanent impairment, the policy should direct decision-makers to rely less on continuity, as it has been established that the worker s area of injury is permanent. WSIB case law is well established and the WSIAT has allowed many cases where a flare-up has even occurred while at home performing an insignificant task. The question should always be was the workplace accident a significant contributing factor to the worker s most recent condition. Substantial Recovery Test We are also concerned with comments in your background paper about the WSIAT approach and can t help but wonder if it was WSIB who provided you with this inaccurate information. The paper states: In considering cases where a worker experiences a subsequent onset of a similar disability, it is my understanding that WSIAT Panels implement a test of substantial recovery when determining whether the situation is a new injury or a recurrence. Tribunal Decision No. 64/89 set out the following test: When the worker experiences a subsequent onset of similar disability, the question of whether it is a recurrence or a new injury will depend on such factors as: the nature of the subsequent occurrence, the evidence of continuity between the injuries in question, the time lapse between the injuries, and any changes in the worker s job or lifestyle. The essential test to be applied is this: did the worker substantially recover from the previous injury? If yes, the subsequent injury is likely to be a new one. A person who has substantially recovered may be left with a residual susceptibility to re-injury. Such susceptibility is not the same as a continuing disability. The WSIAT test in the overwhelming majority of Tribunal cases is not whether the worker substantially recovered from the previous injury, but was the workplace accident a significant contributing factor to the worker s condition.

7 Ontario Nurses Association/November 13, 2012 Page 7 We are therefore very concerned that you may have been provided a few examples that go against the well-established test and then you may incorrectly assume it is the test. We are also very concerned that this review s purpose may be to find new ways to limit entitlement and offset the unfunded liability off the backs of injured workers instead of making adjudicative decision-making more consistent and timely (based on existing policy and intent). Using the test of substantial recovery goes against the general principles that are well established in compensation law. If a test such as substantial recovery was used, there really would be no reason to look at compatibility on its own, but in all cases you would have to look at a combination of the two, which is not what the policy ever intended. Once again it is our strong position that any recommendations arising from this review must focus on processes that can assist adjudicators in making consistent and timely decisions, and must be consistent with the WSIA, the general principles of compensation and Meredith s principles. Proposed Policy Changes We believe the proposed policy changes, if altered in any way to go against the general principles of workers compensation law, would lead to other consequences. WSIB has indicated the proposed policy changes are intended to provide more clarity, however if they are changed to make entitlement more difficult for injured workers, they will lead to more appeals and increased tension between the worker stakeholders and the Board. We have heard WSIB is looking for new ways to reduce its unfunded liability, and that one way it may try to do this is by blaming age-related problems on the ongoing disability, versus determining if the workplace accident was a significant contributing factor to the ongoing disability. We have already seen several cases where WSIB has denied the case because the injured worker also has degenerative disc disease. If this practice of adjudication continues, it would lead to an increase in denials and many more appeals. You must understand there is little trust or faith with worker stakeholders in this broken system. Only policy changes that enhance an adjudicator s ability to seek clarity on the intent of the legislation and apply the well known principles of compensation law in day-to-day decision-making will be supported by our organization. We ask that any policy change that makes it harder or more frustrating for these vulnerable workers to obtain compensation for their workplace injuries should not be considered or suggested to WSIB. The guidelines on continuity are actually quite clear. They state: To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has: complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?). The problem lies in the application. Board decision-makers often deny a claim for a recurrence when they cannot establish that the worker had ongoing treatment for the original condition or in other words, sought regular medical attention. Nowhere in the policy does it say this is the

8 Ontario Nurses Association/November 13, 2012 Page 8 only determination that will count. In fact when reading the guideline, it says or not and. We believe decision-makers simply need a few good examples where a claim is allowed when there is no or little ongoing treatment or no or few complaints to supervisors and co-workers, but where there has been a clear lifestyle change. Our members, for instance, are caregivers and seldom complain about their own pain. Many have been told there is nothing more a doctor can do for them and they have found ways to adjust their lifestyle and live silently with their pain. If a recurrence causes a worsening of their compensable condition, the policy needs to be applied accurately and consistently and not limit entitlement because one of the five criteria is not clearly evident. Monitor Consistency and Hold Managers Accountable We believe WSIB managers should be monitoring consistency and ensuring every decision letter indicates how all of the criteria was at least considered in the decision-making process. There seems to be no accountability for the inconsistent application of the policy. Case managers still rarely quote policies in their decision, or if they do, they selectively quote. The solution should not be to make the policy more restrictive, but to find ways to make the guideline clearer and to demonstrate the policies are being consistently applied through periodic managerial reviews and also in the decision letters sent to a worker. Remove the Information Gathering Section of the Guidelines The current problem as we see it is in your examples of information gathering. Although the policy speaks to compatibility without continuity, the examples provided in the guidelines are confusing and basically direct a decision-maker to apply both criteria. We suggest the information gathering section be removed from the policy and moved to a practice guideline similar to the adjudicative advice documents that are now more difficult to find on its website. The policy should just focus on setting out the guidelines for entitlement, not how a decision-maker will investigate a claim. A practice guideline could then focus on updating its advice on investigating a claim and include two charts in the information gathering section, one for compatibility alone and one where compatibility is not clear, then guidance to refer to the chart for compatibility and continuity. Provide a Clear Approach to Non-Compensable Factors As indicated above, the Board seems to have adopted a practice to deny recurrences when there is even the slightest indication of a degenerative condition. To penalize an injured worker because of age is discriminatory, and we urge you not to recommend any changes to policy that consider or allow WSIB adjudicators to engage in age discrimination. For instance, to deny an older worker compensation for a recurrence or an aggravation of a pre-existing condition due to factors related to his or her age, for example, would on its face be contrary to the Ontario Human Rights Code and subject to challenge. Adopting such a practice also attempts to negate the medical connection between the work performed and the condition developed by the injured worker. For someone who has a preexisting condition, a workplace injury may have more lasting consequences and this is reflected in the present policy. The condition might never have become disabling without the contribution of the work injury or process. There is nothing unfair about compensating an injured worker for the consequences of a workplace accident or disease because she or he had a pre-existing condition that made her or him more vulnerable to ongoing disability. This is an appropriate application of the well-established thin-skull principle. Therefore in order to make the guidelines very clear, we believe it is important to add a paragraph emphasizing that the presence of non-compensable factors, like degenerative conditions, does not mean that a worker has no entitlement to a recurrence. It should state that

9 Ontario Nurses Association/November 13, 2012 Page 9 the worker should only be disentitled where the non-compensable factors on their own, without being aggravated by the work injury, overwhelm the compensable factors, making them causally insignificant. Replace Significant and Insignificant Accident We also believe the reference to significant accident and insignificant accident needs to be replaced with a section on distinguishing between recurrences and new injuries. This section must emphasize the principle of compensation law, and be clear that if the original injury is a significant contributing factor to the worker s worsened condition, they have suffered a recurrence. If not, then it is a new injury. The current reference requires the decision-maker to judge the significance of the accident, focusing on the nature of the accident rather than the effect the accident had on the worker. Our members are often injured performing their routine duties of bending, twisting, standing in awkward positions, etc. On the other hand, we have members who are assaulted in their workplace and return to work the same day with lots of bruises but minimal disabling injuries. There is nothing we could find in the WSIA or the general principles of workers compensation law that turn to the significance of the accident when determining entitlement. The law does however question the effect the accident had on the worker. We strongly ask that you support the principle of workers compensation law and do not recommend a different approach when deciding whether a worker s condition is a recurrence. Remove or Amend the Section Recurrences on or after January 1, 1998 The exceptions in Section 44 (2.1) allow for entitlement to recurrences if a worker suffers a significant deterioration that is permanent or temporary. Therefore it is not necessary and it is confusing to keep the first paragraph of that section in the policy. The only relevant component of this section that could remain is that part about older workers who have elected the no-review option. As stated earlier we do question WSIB s intent and are concerned WSIB is looking for ways to limit entitlement to injured workers. We were very concerned when we heard WSIB publicly endorsed the recommendations from the KPMG 2010 Value for Money Audit on Claims Administration and Adjudication. For instance, on page 28 of that report, KPMG suggested limits for recurrences to re-enter the system. A worker is supposed to be entitled to any benefits that flow as a result of a workplace injury. Therefore, any time limit approach or other approach that does not consider the individual facts of each case would violate WSIB s statutory requirement to adjudicate each case on its own individual merits and justice (WSIA, s.119 (1)), and in our opinion, would also be illegal to limit entitlement to recurrences based on an arbitrary time limit. KPMG also suggested imposing limitations due to age-related conditions, and since WSIB endorsed the KPMG recommendations, it is not surprising to us WSIB seems particularly concerned with addressing the difficulties in distinguishing between recurrence and age-related degenerative conditions. We voiced concerns earlier about making any such distinction, as in the cases we have represented on the majority of age-related conditions were worsened due to acceleration caused from the work-related injury. Decision-makers need more guidance on how to apply the principles of worker s compensation law like applying:

10 Ontario Nurses Association/November 13, 2012 Page 10 the standard if the workplace accident was a significant contributing factor to the worker s condition. balance of probabilities. presumption about injuries and illnesses arising out of and in the course of employment. thin-skull rule. We have many workers who suffer recurrences and there is no set rule of when a recurrence can occur or where it can occur. We are therefore vehemently opposed to any changes to policy that could in any way limit entitlement to these most vulnerable workers. Aggravation Basis ONA believes the Aggravation Basis policy can be improved to provide greater clarity to WSIB decision-makers. Many of the cases we see at ONA are denied because WSIB decision-makers have determined the mere existence of a pre-existing condition justifies limiting benefits under the aggravation policy or justifies complete denial of entitlement to benefits. In reviewing the policy, it is evident it is not clear as written, can be misinterpreted and is not consistent with general principles of workers compensation law. Any amendments to the policy should therefore focus on closing these gaps while ensuring a worker s entitlement to this benefit is not in any way reduced or made more difficult. The Policy is Not too Narrow and Should Not be Expanded to Further Restrict Entitlement The discussion paper indicates WSIB eligibility adjudicators/case managers have stated the aggravation-basis policy is somewhat too narrow in scope in that, 1. the pre-existing condition must have been significant and symptomatic (usually within the last two years, 2. the work-related injury has to be to the same body part/system as the pre-existing condition; and 3. the work accident and injury must be minor. This is concerning when the intent of this policy was to be exactly that, specific and narrow. It would therefore be important to clarify and reinforce with decision-makers the intent of the policy as noted below. According to the thin-skull doctrine, workers should be compensated for the full extent of their injury even if they are more vulnerable to an injury than the average worker, or if the injury is worse than it might have been for a less vulnerable worker. Decision 915 states that the thin-skull doctrine applies in workers compensation cases for two reasons: 1. Permitting compensation to be denied or adjusted because of pre-existing, pre-disposing personal deficiencies would very substantially reduce the nature of the protection afforded by the compensation system as compared to the court system, for reasons that would not be understandable in terms of either the historic bargain or the wording of the legislation. 2. In a compensation system, injured persons become entitled to compensation because they have been engaged as workers. They have functioned as workers with any pre-existing condition they may have had. It seems wrong in principle that conditions that did not affect their employment as workers should be relied upon to deny them compensation as injured workers. Aside from policy changes we suggest later in this document, WSIB decision-makers would benefit greatly from a recommendation that they (including WSIB senior leadership) all receive training on Decision 915 and how that case was determined and should be applied in the

11 Ontario Nurses Association/November 13, 2012 Page 11 decision-making process. It would also be beneficial for WSIB decision-makers to receive training in the history of workers compensation and the historic trade-off where workers gave up their right to sue employers in exchange for workers compensation benefits. Include a Statement of Principle The principle should state: The purpose the policy is specific and narrow, which is to limit entitlement where workers suffer a relatively minor accident that aggravates or accelerates the progress of a symptomatic pre-existing impairment. Entitlement in these cases can be limited to the period of work-related worsening of a pre-existing impairment. The policy should also state that it only applies to limit entitlement in specific circumstances, because in workers compensation law, it is an exception to the general presumption that you take the worker as you find him (otherwise referred to as the thin-skull doctrine ). Minor Accident WSIB eligibility adjudicators/case managers have indicated the absence of thresholds makes it difficult to interpret terms such as minor. It is our position that the policy must reinforce and include a statement of why only a minor accident can result in limited Aggravation Basis entitlement. The policy should make it clear that if the accident would be expected to cause impairment, regardless of the pre-existing condition, it is likely the accident played a significant role on its own in causing the disability, and therefore should not be adjudicated under the Aggravation Basis policy. We believe it is important to maintain the benchmark of a minor accident, as it should be used as a tool to help decision-makers determine what role the work accident played in the worker s disability where there is a pre-existing symptomatic impairment. We also believe WSIB should provide some examples that could better assist decision-makers in assessing if an accident is minor Greater Clarity on Asymptomatic Pre-existing Conditions One problem in the application of the policy is the continuous references to pre-accident impairment and disability, with no emphasis on asymptomatic pre-existing conditions. The policy must provide more guidance to decision-makers to ensure they do not apply this policy when there is a pre-existing asymptomatic condition. Therefore, include a section in the policy that: Defines pre-existing condition, adding the following definition: A pre-existing condition (as opposed to a pre-existing impairment) exists where a worker has an asymptomatic or underlying condition that did not require regular medical treatment or disrupt employment prior to the workplace accident. States the policy does not apply to workers who have a pre-existing condition as opposed to workers with a pre-existing symptomatic impairment Clarify in the Guidelines the Impact Injury/Trauma can have on Degenerative Disc Disease WSIB decision-makers are not clear on the impact an injury/trauma can have to the progression of degenerative disc disease (DDD). Degenerative changes due to the aging process are frequently used by Claims Adjudicators to deny a claim on an aggravation basis, along with claims for initial entitlement and recurrences. There does not appear to be any consideration given to whether or not the work-related injury/illness/accident has accelerated the degenerative changes. Had it not been for the workrelated injury, degenerative age-related conditions would have progressed at a much slower rate.

12 Ontario Nurses Association/November 13, 2012 Page 12 There is also no consideration given to the fact that a disc can degenerate following a trauma or injury. Claims Adjudicators see DDD on an x-ray report and grab on to the condition to deny entitlement on an aggravation basis/initial entitlement and for recurrences. The heavy, dynamic and unpredictable nature of nursing work, with pulling, pushing, lifting and bending over sustained periods of time, gives rise to back injuries that are a common cause of a claim on an aggravation basis and for recurrences. WSIB decision-makers should not be allowed to so freely deny entitlement without turning their minds to what may have contributed or caused the progression of the DDD. There are many times that the progression of DDD should be accepted as part of the responsibility of the work-related injury, and this should be clarified in the guidelines for the aggravation and recurrence policies. Provide Guidance on Determining Pre-accident State The policy should provide more guidance on how to determine pre-accident state and how to assess relative contributions of pre-existing impairments and work-related injury. The existing guidelines offer the following advice when determining pre-accident impairment: Determining Pre-accident Impairment Before the allowance on an aggravation basis is considered, decision-makers must determine if a pre-accident impairment exists. Evidence of this includes, but is not limited to, a worker having: A previously identified and symptomatic medical condition/impairment. Medical precautions/restrictions and performing modified work prior to the accident. Receiving regular health care treatments prior to the accident. Lost time from work prior to the accident. This information can be obtained by reviewing: Prior health care documentation (e.g., x-rays, hospital records, operative reports). Prior claim(s) Statements from the worker, the employer or co-workers. Employment records. We have made some earlier suggestions that could better clarify the distinction between a preexisting condition and a pre-existing impairment; however there is no need to change the objective criteria about when there is a pre-existing impairment. What the policy needs is some advice/criteria on determining pre-accident state, such as: When determining if a worker has returned to pre-accident state, evidence includes but is not limited to the following: Information from the worker s health care practitioner (HCP) to determine when or if the work-related aggravation has ended. Information from the HCP if the worker has a permanent aggravation caused by the workrelated accident. Was the worker was able to work regularly prior to the minor work accident? Is the worker now working regularly again? About how many hours on average was the worker able to work prior to the minor accident? Is the worker now working the same hours as they were prior to the minor accident? How many health care treatments did the worker receive prior to the minor accident and have the treatments decreased to that same level? Information on the worker s medical precautions/restrictions/modifications just prior to the minor accident and if the worker has returned to that same level.

13 Ontario Nurses Association/November 13, 2012 Page 13 Is there a disruption in the worker s activities of daily living after the workplace accident when compared to the worker s pre-accident activities of daily living? Include Guidance on Determining Relative Contribution of Pre-existing Impairments and Work-related Injury Based on Medical Evidence The policy should make it clear WSIB decision-makers can obtain medical opinions if needed about the relative contributions of the pre-existing impairment and work-injury. Direct decisionmakers to: Obtain information from the HCP about the relative contribution of the pre-existing condition (including any deterioration of the condition that may have been accelerated by the workplace injury/illness) and the work accident/illness to the worker s ongoing condition. Clarify in the policy that where the decision-maker cannot determine the relative contributions of work-related and non-work-related disabilities, but it appears more likely than not that the workplace injury/illness is still a significant contributing factor to the worker s disability, the correct approach would be to grant entitlement without apportionment in accordance with Section 119(2). No Measurable Medical Information The discussion paper indicates that WSIB adjudicators have identified that it can be difficult to obtain measureable medical histories/evidence of a worker s pre-accident state. There are many cases that ONA has represented on where the WSIB decision-maker has decided a worker has returned to their pre-accident state without first obtaining medical evidence to support this finding. The guidelines should therefore include the following statement: If after requesting the medical information there is no measurable medical information about a worker s pre-accident state, the decision-maker should question whether the claim should have been adjudicated under the Aggravation Basis policy in the first place. If the medical information does not indicate the worker had received medical treatment for the pre-existing injury/illness, it is likely there was no pre-existing impairment. Once-only Repair Remove the section on Once-only repair entirely. This provision is inconsistent with workers compensation law to provide compensation for the consequences of work-related accidents. It is also inconsistent with the policy and its intent. The bottom line is that if a work-place accident is a significant contributing factor to the injury/illness, compensation should be granted regardless of how many times a worker is injured. Rather than penalize a worker for her or his employer s non-compliance with the OHSA to resolve hazards, we would suggest a proactive approach, such as a recommendation that when WSIB is made aware of repeat injuries to the same person in the same workplace, WSIB will alert the Ministry of Labour of a repeated hazard the employer appears not to have resolved that is putting a worker at risk. Changes that Should be Resisted As mentioned earlier, we question WSIB intentions and are concerned about WSIB application of any recommendation it may receive as a result of this review because it has already publicly endorsed the KPMG recommendations from their 2010 Value for Money Audit on Claims Administration and Adjudication.

14 Ontario Nurses Association/November 13, 2012 Page 14 Aggravation Basis Policy is not Expanding Entitlement The KPMG report said that WSIB should revise the Aggravation Basis and Recurrences policies to curtail the expansion of entitlement and benefits beyond what was envisioned due to preexisting age-related degenerative changes or conditions. The allegation appears to be that older workers are more vulnerable to having worse injuries, and it is possible their injuries will take longer to resolve and may reoccur in part because of their age. KPMG claims that older workers are therefore getting more benefits then the law intends and are overcompensated. They suggest the Board consider revising both the Aggravation Basis and Recurrence policies to reduce such alleged "overcompensation." The comments by KPMG are not accurate. When reading the report, it is clear they do not understand the distinction between an asymptomatic pre-existing condition and a pre-existing impairment. KPMG s report seems to have no regard for the law, which states if a work-related and non-work-related cause of an injury is difficult to separate, full entitlement should be granted. The key goal must be to ensure that where a worker s injury/illness is a significant contributing factor to the ongoing disability, benefits are in order. Second Injury Enhancement Fund (SIEF) and the Aggravation Policy are not Interdependent The KPMG report also states that the Aggravation Basis Policy and SIEF Policy are companion documents and imply they are somehow interdependent. The only interaction between these two policies is that a claim allowed on an aggravation basis receives immediate SIEF cost relief. In reviewing the SIEF policy, it is evident it could be revised or eliminated without it affecting the underlying principles of the Aggravation Policy. Quick Reference Guidelines about When Injuries Should Resolve Should Not be Used WSIB eligibility adjudicators/case managers said the policy did not provide enough guidance to assess when the worker has reached pre-accident state. We have already made a recommendation above how this could be addressed, for instance by directing decision-makers to gather medical information before making a decision, and teaching them how to weigh medical and other evidence. The guidelines should avoid any references on how to adjudicate the substance of a claim, such as guidelines that try to explain how certain types of pre-existing conditions progress. This is very dangerous ground and would not allow every case to be decided on its own individual merits and justice. Work Disruptions Most of our Bargaining Units are not able to strike. However there are circumstances where some of our members have been on strike and these policies could impact injured workers from those Bargaining Units. We are particularly concerned with the impact the policies will have in relation to the problems we experience when are members are laid off. Combine all Policies into One WSIB adjudicators/case managers have indicated that two of the challenges they face in administering these policies are: Applying the correct work disruption policy that corresponds with the economic situation in which a worker is disadvantaged during a work disruption. Interpreting work disruption policies with repetitive content in a consistent manner. We believe one way to address these concerns and inconsistencies are to combine all of the policies into one. There really is no need for separate policies and any work disruption should be treated the same when it comes to benefit and service entitlement.

15 Ontario Nurses Association/November 13, 2012 Page 15 Add a General Principle Statement The current general policy is not clear and is confusing. We believe WSIB should include a statement of principle that says the Board accepts that workers with work-related impairments suffer a disadvantage in the labour market. Also state that WSIB will provide additional benefits to workers who experience loss of earnings (LOE) due to work disruptions and who are therefore competitively disadvantaged in pursuing or obtaining alternative employment due to work-related injury/illness. There should also be a statement to guide WSIB decision-makers on the payment of benefits and work-reintegration services when workers with work-related injuries/illnesses are not able to work due to a work disruption. The focus of the policy should be determining employability does the worker s impairment present an obstacle to the worker obtaining employment during a work disruption? Review other Applicable Provisions of WSIA First Before considering the work disruption policy on its own, the Board should as a starting point: 1. Review the employer s re-employment obligations under s. 41, as the worker may be eligible for benefits under s. 41 (13). To be eligible for benefits, there is no requirement that the LOE must be shown to be caused by the work-related impairment. 2. The decision-maker should always consider the employer/worker obligations under s. 40 to determine if both parties are cooperating. 3. Finally, review eligibility for a Labour Market Re-entry Assessment (LMRA) under s. 42. Reference to General Concepts are Confusing If a recommendation is made to combine the policies, we believe the third paragraph of the current general policy (dealing with general concepts) should be re-moved entirely as the processes will all be contained in one policy. If you decide it is not practical to combine the policies, the third paragraph should be moved to the guideline section. ONA believes reference to the concepts so early on confuses the decision-making process and often, as is our experience, causes the decision-maker to bypass the policy and not consider the principles set out for considering compensation as suggested above and in these two existing points: Determine if the worker is actually unable to work due to a work disruption. Determine if the worker s employability is affected by her or his work-related impairment/disability and associated clinical restrictions. We also believe the policy should provide clarity on whether the worker s work-related impairment has a clear effect on employment by: Defining when an injured worker has a distinct disadvantage in finding similar post-accident work when compared to an able-bodied worker. Explaining that decision-makers must still make the determination of employability even in cases where the work disruption was a business decision. Emphasizing that it is not sufficient to just look at the work the worker was doing prior to the work disruption, but that decision-makers should also consider: o Personal characteristics such as language, education. o Whether the worker is unable to perform the pre-accident job due to his or her workrelated disability. o How long the worker has been accommodated.