Exploring injured workers’ experiences

Spanning continents and time-zones, researchers Agnieszka Kosky (Toronto) and Beth Kilgour (joining the meeting via Skype from Melbourne) shared their findings recently at the third Bancroft Institute research and discussion series held October 31st at the University of Toronto. Their project, conducted jointly with Donna McKenzie and Alex Collie of the Institute for Safety, Compensation and Recovery Research (ISCRR), looked at the experiences and interactions of main players within the workers’ compensation system.

Bancroft Oct 2014 presentation

click to view pdf

Friday’s presentation focused on the nature of interactions between injured workers and insurers (case managers) revealed by the literature review, and how these interactions hinder or help recovery. The panel discussion and questions from the floor which followed made it clear that the common experiences (system disorganization, questioned legitimacy, adversarial relations, multiple medical assessments……) documented by the study were all too familiar, as were the harmful effects on the injured workers’ mental health, social life, employment and finances. An instance of a positive interaction gave a glimpse into how a properly functioning workers’ compensation system focusing on restitution and recovery could provide a different and better outcome for injured workers.

Another recent study by Australian researchers, led by Sarah Pollock, examines interactions from the perspective of long-term injured workers and the psychological consequences. Filling the dark spot: fifteen injured workers shine a light on the workers compensation system to improve it for others” (2014) focuses more narrowly on the Victorian WorkCover Authority but its lessons on the need to treat injured workers with dignity and humanity, to reduce mental distress and encourage peer support are universally applicable.

Controlling workers’ medical treatment

In the words of a Nova Scotia medical specialist, dealing with the workers’ compensation system is “appallingly disturbing” (CBC News Oct. 10, 2014). The clinical neurologist says the opinions of the Board’s doctors – even if they have never seen the patient – are given more weight than those of the injured worker’s own physician. She speaks bluntly of how injured workers, to avoid having their benefits cut,  may be coerced into accepting the treatment recommended by the WCB.

An Ontario study led by Agnieszka Kosny of the Institute of Work & Health also talks of injured workers being caught “between a rock and a hard place” given the Board’s decision-making authority over a worker’s health and claim. “Some workers may have to choose between following their doctor’s recommendations or following the recommendations of the clinical management guidelines used by workers’ compensation boards in order to secure their claim”. (see full report in “The role of health-care providers in long-term and complicated worker’s compensation claims,” Journal of Occupational Rehabilitation 2011 21(4):582-90)

The issue has long been a topic of debate south of the border. The standard of care until recently meant the treating physician determined what medical treatment was necessary. However as a presentation to the American Academy of Orthopaedic Surgeons pointed out, states are increasingly implementing mandated “evidence-based” guidelines. (“Workers’ compensation system under attack: do treatment guidelines threaten the patient-physician relationship?” AAOS News, Jan. 2014). These guidelines (state-written, the Official Disability Guidelines prepared by the private, insurance-funded Work Loss Data Institute or the ACOEM Practice Guidelines) are used by almost all workers’ compensation insurers. However it is the mandated use which switches the burden of proof so that “now the guidelines are assumed to be correct and the doctor has to prove otherwise”.

As the just-published “National Trends and Developments in Workers Compensation” (Oct. 2014)  by the National Economic & Social Rights Initiative (NESRI) reports, a growing number of states are giving employers and insurers control over choosing the treating doctor and thereby influence over important medical decisions.
Injured workers are losing an important historic right.

Upcoming Bancroft session Oct 31: injured worker interactions with compensation system

Bancroft3_Oct2014The third in the Bancroft Institute Policy and Research Discussion series will focus on the experiences of injured workers in their dealings with the compensation system. Keynote speakers Beth Kilgour (Monash University) and Agnieszka Kosny (University of Toronto) will discuss the findings of their recent research on these interactions and outcomes, do they add harm or help recovery? A panel discussion will follow.

[Download flyer]

When: Friday, October 31st 10:00 a.m. – 12:30 p.m.
Where: Alumni Hall, VC112, Victoria University (in the University of Toronto)
91 Charles St W., Toronto M5S 1K7

RSVP appreciated: BancroftInstitute@gmail.com
The event is free with a suggested donation of $5 for waged attendees. Transit tokens are available for the waged.

Has the WCB/WSIB abandoned its mandate?

Bancroft Spring 2014 Workshop Ontario’s workers’ compensation administration has, in the last few years, proposed and implemented changes to policy and practice that increasingly adversely affect injured workers’ benefits, health and socioeconomic conditions. These exercises in cost-cutting, framed as “efficiencies” or “modernization”, are – despite government statements to the contrary – indeed being made “on the backs of injured workers”. They threaten the balance of interests (worker, employer, public) and the commitment to full justice (compensation for as long as disability lasts in an non-adversarial system) of the Meredith principles which Canadian compensation boards still claim as their foundation.

The Bancroft Institute for Studies on Workers’ Compensation and Work Injury held an April 2014 Research to Action Workshop in Toronto on this timely topic: Has the WCB/WSIB abandoned its mandate?

Here are selected presentations (more to follow) from the Workshop, together with a Legal Primer on terms used:

Hilgert

Jeffrey Hilgert, Assistant Professor at the School of Industrial Relations, Université de Montréal, studies international labor and human rights, focusing on occupational safety and health and employment injury benefits. Formerly a labour rights and anti-poverty activist in Minnesota, Dr Hilgert has received human rights awards, a Fulbright and Archibald Bush fellowships for his efforts. A key presenter also at last year’s “No half measures” Meredith Conference, he is author of the recently published “Hazard or hardship: crafting global norms on the right to refuse unsafe work” (Cornell University Press, 2013). The presentation considers what a rights-based approach would mean, the legal and social implications for injured workers.

Dave Wilken
Dave Wilken has been representing injured workers and advocating for their interests since 1990. Currently lawyer at Building Trades Workers’ Services, he formerly worked at the Industrial Accident Victims Group of Ontario (IAVGO) from 1994 to 2009, Office of the Worker Adviser, and Injured Workers Consultants (IWC). A presenter also at the 2013 Meredith Conference, he is author of a 2012 analysis of the Arthurs Report on WSIB financing in which Arthurs critiqued the Board for not ensuring the integrity of its experience rating program – charging that the WSIB failed to meet the declared goals of improving, through financial incentives, employer occupational health and safety and return to work programs. This Bancroft presentation addresses the subsequent response of the Board in its new rate framework affirming insurance pricing equity for employers to be the only issue.

Maryth Yachnin
Maryth Yachnin is a staff lawyer for IAVGO, the community legal clinic that, after finding a disturbing pattern of surveillance and benefit cuts, made a freedom of information request for related Board documents. The internal guidelines revealed “red flags” for fraud that point to the most vulnerable workers – those with psychological illness, language barriers, precarious employment – as potentially subject to covert surveillance. A panelist at the 2013 Meredith Conference, her recent presentations address concerns with WSIB draft pre-existing policies and mental stress.

See also her video “Voodoo science”

Making sense of Ontario’s law reform

AndrewKingIn “Making sense of law reform : a case study of workers’ compensation law reform in Ontario 1980 to 2012”, his 2014 thesis presented for the Master of Law degree at the University of Ottawa, Andrew King analyzes the law reform and its implementation from the standpoint of injured workers.

Part One constructs an analytical framework drawing on legal theories and principles of adjudication. It provides a brief history of the Ontario Workers’ Compensation Board, its powers and adjudicative practices prior to the reforms.

Part Two summarizes reform in Ontario’s workers’ compensation law from 1980 to 2012. The description is organized into five periods reflecting significant shifts in direction. It focuses on government recommendations for reform, identifies and describes key legislative changes, and explores changes to governance, appeals and adjudication. Legislation, case law, policy and practice are reviewed.

Part Three reviews the evidence of the impact of the Ontario reforms on a particular group:
unemployed, permanently disabled workers. While the Board refuses to track the economic status of injured workers, research suggests poverty and stigma face many.
Conclusions suggest that Ontario’s workers’ compensation system was transformed from one
established to address the interests of workers and employers separately to one that balances those interests and now into one that privileges the interests of employers. Workers’ interests are a cost to be reduced. The prospect of law reform as an empirically driven process to address injustice has been corrupted by a focus on correctness with fairness as an afterthought. (Author abstract)

Read the full thesis.

Former director of health, safety and environment for the National Office of the United Steelworkers of Canada (USW), Andrew King, long-time advocate for injured workers, is currently Assistant Professor, School of Labour Studies at McMaster University, co-investigator for the Centre for Research on Work Disability Policy and one of the worker representatives on the Research Advisory Council of the Workplace Safety & Insurance Board in Ontario.

Compensating psychological injury

Whether the result of trauma or chronic pain, workplace psychosocial hazards such as harassment, or frustrations in dealing with the compensation system, stress and other mental health conditions take a huge toll.  Here are some brief updates on related events from across the country….

This July Ontario MPP, Cheri di Novo (NDP-Parkdale) reintroduced her  bill amending  the  Workplace Safety and Insurance Amendment Act to make  post-traumatic stress disorder a presumptive condition for emergency services workers  (firefighters, police and paramedics).  If passed, Ontario would join Alberta, which in passing its 2012 amendment led the way in enabling first responders to more easily establish PTSD claims. With the Manitoba WCB report on the issue expected this fall, Manitoba may introduce similar legislation (“Emergency responders across Canada seeking better treatment for PTSD”, July 27 2014).  Meanwhile, soldiers and veterans with PTSD continue to struggle for their benefits…. (“Injured veterans’ frustration with Ottawa shows no sign of abating”, Globe and Mail, June 18, 2014)

Workplace cumulative and gradual onset stress were addressed in Nova Scotia’s 2013 consultation on psychological injury  however the March 2014 final policy reflected employers’ responses to broadening coverage.

A number of recent court decisions in Western courts have ruled employees suffering stress from workplace bullying or harassment cannot sue their employers if the workplace is covered by workers compensation. While the reasoning in these decisions is rooted in the historic trade-off, Daniel Bokenfohr of McLennan Ross questions “To what extent does workers’ compensation legislation insulate employers from liability?”(Spring 2014). In a related article, David Harris and Ken Alexander (“Does workers’ compensation undermine other civil remedies?”, Law Times, Jan. 13, 2104) discuss other Charter challenges and responses to various provincial laws in Nova Scotia, BC and Ontario on harassment and mental stress.

While the March Supreme Court of Canada decision Martin v Alberta (Workers’ Compensation Board) [2014] 1 S.C.R. 546  on chronic onset stress dealt with provincial jurisdiction in federal workers’ claims, restrictions on benefit entitlement to psychological injuries as a constitutional issue were not part of the formal challenge.

In April an Ontario Appeals Tribunal decision 2157/09 did rule the statutory limits on mental stress entitlement to be a breach of equality rights under the Charter. The case, involving workplace abuse over a period of 12 years, found chronic workplace-related stress could be a valid claim though it left lawyers divided on WSIB stress claim ruling (Law Times, June 9 2014).

And for Ontario workers facing workplace stress, a reminder that Occupational Health Clinics for Ontario Workers has a  guide to rights and legal protections in the online “Mental Injury Toolkit”, prepared by OHCOW and the OFL.

 

Upcoming event: celebrating the work of Joan Eakin

An afternoon panel session and reception will be held Oct. 16th, 2014 at Hart House, University of Toronto in recognition of the work of the recently retired Professor of the Dalla Lana School of Public Health , Director of the Centre for Critical Qualitative Health Research and Adjunct Scientist at the Institute for Work & Health. [see registration details (deadline Oct. 9) and program].

A leading participant in the Research Action Alliance on the Consequences of Work Injury project, Dr Eakin shared her findings not only in academic publications but through community forums for injured workers and the theatre project “Easy Money”. Easy Money posterBased on her research into injured workers’ experiences navigating the compensation system, this satirical play, written and directed by Kate Lushington, has been frequently performed by the Injured Workers Theatre Collective since its debut at the 2005 Mayworks Festival.

Selected publications from a body of work that has contributed to workers’ compensation policy discussion and a deeper understanding of how the system impacts real lives:

 

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