Bill 30: An Act to Protect the Health and Well-being of Working Albertans passed Third Reading on December 12 and received Royal Assent on December 15. Different sections of the Bill come into force on different dates. The opposition United Conservative Party appeared to lose interest in debating the bill when it was brought to light that UCP House Leader Jason Nixon had fired an employee who brought forward a complaint of sexual harassment. This led to speedy passage.
As many of you know, the Bill is hard-slogging, as it is about 200 pages in length and makes extensive changes to legislation on the Occupational Health and Safety legislation as well as the Workers’ Compensation Act. These views are our initial take on the legislation. There are many questions about how some aspects of the legislation will be implemented.
We welcome information, views and clarification about the legislation, and think it is important that discussion takes place about the impact of the legislation on our lives. Questions about the legislation are also welcome, and together we will try to answer them. Stay tuned for information meetings on the new legislation.
We have posted the government’s summary of the changes to the WCB system, and you can see that many are positive. One important change for injured workers to be aware of is that a Fair Practices Office will be established which is not under WCB control. We encourage everyone to use this service once it is established and report back on whether the Office was of assistance to you. The Fair Practice Office must include a mechanism to review old claims and allow reconsideration of claims with merit.
The legislation provides no justice for workers who are now without benefits and living in poverty Workers’ compensation is a right! Why is it acceptable for a government to treat injured workers in this way? Would it say that veterans whose claims have been denied are out of luck, but it will change the rules going forward? Or diabetics refused the disability tax credit? AISH recipients?
Bill 30 unfortunately does very little to address a major concern of injured workers – the authority of Case Managers to make life-changing recommendations which determine the quality of life for an injured worker. Nor does it change the practice of WCB hiring doctors to provide opinions on patients they have never seen, examined or treated. Case managers will still have authority to “choose” the opinions of WCB-employed doctors who have never seen or treated the worker over those of their treating physicians. This does not fix a broken system and deserves to be repeated. WCB paid physicians will still be able to give second opinions, and case managers will still be able to pick and choose opinions in order to deny claims, as they do now. The opinions of the WCB-employed doctors are frequently the justification to deny claims, and are almost always confirmed by the WCB internal review process. These issues can be addressed through major changes to the WCB internal structure and processes, and CIWAA will continue to work for those changes. This barbaric system changes the probability and still questions who has the burden of proof (injured worker versus the WCB)
Recommendations 16 and 17 looks like the government did not understand or clearly ignored Excerpts from page 58- 62 explains why WCB remains broken and will continue to remain broken To much power in un-qualified Case Manager’s hands. Absolute power corrupts absolutely.
CLARIFYING THE ROLE OF MEDICAL CONSULTANTS
A medical disagreement typically takes the form of a difference in opinion between the worker’s treating physician (which might be their family physician) and that of the WCB. How the WCB comes to form a medical opinion is a source of consternation among stakeholders.
Decisions about a worker’s claim are typically made by the WCB claims manager who is assigned to the claim. Most of these decisions – such as the eligibility of the claim, and whether the worker is ready to return to work – can involve medical questions. However, claims managers are not usually physicians and they do not typically have medical training.
To support claims managers in their decision-making, the WCB makes use of medical consultants. These medical consultants are physicians retained by the WCB through year-to-year contracts.
Through our engagement process, numerous stakeholders expressed concerns that WCB-retained medical consultants are going beyond their role and providing medical opinions to the WCB about workers’ health conditions. This, they say, leads to the claims manager adopting a view that runs counter to the worker’s treating physician. Some people say this is problematic for various reasons, including:
The medical consultants do not ever examine workers firsthand; they instead rely on the examinations that have been performed and the documentation that has been provided by others.
“WCB consistently refuses to accept the opinion of specialists who know the patient often taking the opinion of less qualified physicians. They frequently interfere with treatment.”
– Health Practitioner
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ALBERTA WORKERS’ COMPENSATION BOARD (WCB) REVIEW
Since they are contracted by the WCB, the medical consultants may not be providing objective opinions.
The medical consultants are not qualified to provide medical opinions.
In examining the WCB’s use of medical consultants our Panel found that it is not the medical consultants’ qualifications or opinions that are the problem, but a culture within the WCB to defer to them too readily.
Some clarification is helpful here. The WCB retains a complement of medical consultants who are all qualified and licensed to practice medicine in the Province of Alberta. Some serve the WCB full time, while others provide their services to the WCB on a part-time basis while also working in other clinical settings (such as hospitals or their own practices).
The WCB also employs “clinical consultants”, whose job title may be causing some confusion among stakeholders. The clinical consultants are nurses or foreign-trained doctors (who may or may not be licensed to practice medicine in Alberta) but they do not make decisions or provide opinions about claim files. (Their job is to prepare the medical packages that are sent to physicians who do make decisions.)
It is accurate to say that medical consultants do not examine workers firsthand. Rather, they are provided a dossier of material compiled by the WCB that includes pertinent medical information from the worker’s file. On the basis of that information, along with their experience and expertise, the consultant is asked to contribute medical advice about the worker’s claim.
The identified problem is that when a medical consultant’s view conflicts with the opinion of a worker’s treating physician, the medical consultant’s view seems to be readily adopted by claims personnel without much attempt to resolve the parting of views. This regrettably creates several unintended challenges. First, it sends a signal that the WCB neither trusts nor respects the medical opinions provided by the workers’ treating physicians, who are actually seeing the worker. Second, it abrogates the ability and the responsibility of the case manager to be inquisitive, seek appropriate evidence and make decisions about the claim based on that evidence. Third, it creates the conditions for a clash of formal medical opinions, leading the relationship between the worker and the WCB to become unnecessarily adversarial. This, in turn, can result in the worker being pulled into numerous processes in a drawn-out effort to resolve the disagreement.
Our Panel sees the value of having the WCB retain medical consultants to support decision-making by case managers. However, the role of the medical consultant needs to be clarified and the culture surrounding their use should change.
“Differences in opinion are not uncommon in medicine. Challenging a difference of opinion through conversation by both parties or deferring the decision to a specialist are good ways to solve the issues.”
– Health Practitioner
Injured Workers’ Suggestions:
USE MEDICAL EVIDENCE
Stop allowing IME to determine causality
59 Investigate the opinions given from the IME doctors that have constantly used a template. The IME ‘s that have gone against treating physicians and medical evidence over many, many years working for the WCB should be held accountable if proved biased for their endless paychecks.
REPORT AND RECOMMENDATIONS
Refocus the role of the medical consultant to better support a case conferencing approach. The Medical Panel Office should design and implement a quality assurance program to ensure the new case conferencing approach is achieving its desired outcomes.
In our view, an appropriate role for a medical consultant is to provide claims managers with a medical perspective on the medical issues presented in a worker’s claim. In this role, the medical consultant reviews the worker’s file and offers advice that will help the claims manager identify and seek the information they require to make evidence-based decisions about the worker’s claim.
When a medical consultant has a view that differs from the view of the worker’s treating physician, the consultant should contact the treating physician to ask questions, offer a perspective and support a search for compelling medical evidence. The medical consultant performs a ‘case conferencing’ type of function, not a ‘provide a second opinion’ type of function. There are good reasons to do this. It would not only signal that the WCB has respect for the worker’s treating physicians, but it would also provide an opportunity for the health professionals to fill each other’s knowledge gaps. The worker’s treating physician may know more about the worker and their medical history, but often the medical consultant will have more information about the worker’s employment.
All of these pieces of information are relevant to pull together. Ideally, this informal case conference between the medical consultant and treating physician will help achieve a reconciliation of views. In the event that a parting of views remains, the appropriate course of action is for the claims manager to request an independent medical examination. The claims manager should not make a decision that causes the medical consultant’s view to trump that of the treating physician.
This shift in the medical consultant role is in keeping with the shift to a worker-centered system. Instead of being used to justify how a claim is processed, the medical consultant’s expertise is leveraged to support a more complete understanding about the worker’s medical issues. The focus is placed on determining what medical treatment will best support the worker’s health and well-being, and then making decisions about the claim on that basis.
Additionally, our Panel recognizes that it is appropriate for the medical consultants to report to a division separate from claims management. However, in order to facilitate a shift in the approach of the medical consultants and help demarcate that they are independent providers of advice, the Medical Panel Office should establish a quality assurance program to ensure appropriate services are provided by medical consultants.
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ALBERTA WORKERS’ COMPENSATION BOARD (WCB) REVIEW
IMPROVING THE INDEPENDENT MEDICAL
When a disagreement occurs over a medical aspect of a worker’s claim, the WCB will usually refer the worker for an independent medical examination (IME). The physicians who perform IMEs for the WCB are retained and paid by the WCB under fee-for-service contracts. When an IME is required, the WCB selects a physician from among these contracted providers who has expertise in the injury or illness presented by the worker. The worker effectively has no choice in this process. Although the worker can refuse to consent to the IME, they may lose their benefits if they do so.
Typically, the physician conducting the IME will be provided with any relevant reports from the worker’s treating physicians. The IME physician reviews the history of the worker’s injury or illness and examines the worker firsthand. Sometimes the examination will take place at the WCB’s offices – an arrangement which, according to stakeholders, can be intimidating to workers and can undermine the perceived independence of the IME.
If a worker disagrees with the result of the IME, they will sometimes respond by obtaining their own independent examination from a physician of their own choosing at their own expense. (In some cases, a workers’ union will cover the expense.)
We also heard that the WCB will sometimes seek multiple IMEs on the same matter. While there may be legitimate reasons for this (such as the original IME completely missing an area of examination), our Panel heard several stakeholders express a view that the WCB goes “doctor shopping”.
The ultimate result is a battle between conflicting IMEs. Rather than achieving resolution of the medical disagreement, the current process can cause both sides of the disagreement to become further entrenched in their positions. This makes the relationship between the worker and the WCB adversarial, and adds cost and delay to the overall system.
Part of the challenge is that many workers (and unions) question the independence of physicians who are retained by the WCB to conduct IMEs. Our Panel heard many people express the opinion that because these physicians are solicited, negotiated and contracted by the WCB, they are likely to produce opinions that align with the WCB’s viewpoint.
It is important to note that the College of Physicians and Surgeons of Alberta has in place both a Standard of Practice and Advice to the Profession which provide guidance to physicians regarding IMEs (also called “Non-Treating Medical Examinations”). These documents set out the minimum standards of professional behaviour and ethical conduct that are expected from physicians in respect of IMEs, and cover issues such as: disclosing conflicts of interest, informed consent, how an IME should be conducted, and documentation expectations.
Our Panel does not take issue with the professionalism or competence of medical professionals who are retained by the WCB. This is neither our role, nor are we qualified to do so. Questions about the ethics and competence of health professionals are the purview of their applicable regulatory bodies.
“Members have the perception that IME’s are done by doctors employed by WCB and therefore a bias against the worker in favour of the employer.”
REPORT AND RECOMMENDATIONS
However, our Panel is comfortable in saying that the current approach to IMEs is no longer working because trust in the system has been eroded. Regardless of whether WCB-retained professionals are biased or conflicted, the current approach feeds into the perception that they might be. This needs to be changed. Workers who are sent for IMEs can not and should not have lingering questions about whether their health interests were put first.
And physicians who conduct IMEs should not be engaged in a manner that enables their professionalism to be so casually assailed.
To restore trust in this aspect of the workers’ compensation system, there needs to be a greater level of neutrality and independence in how IMEs are conducted.
Use a roster approach, administered by the Medical Panel Office, to obtain independent medical examinations.
Our Panel recommends that the approach to obtaining IMEs should be changed so that the WCB is no longer in a position to influence IME results. In particular:
The WCB should no longer directly enter into fee-for-service agreements with physicians for IME services. Instead, the Medical Panel Office (which is independent from the WCB) will administer these arrangements on their behalf.
In consultation with the College of Physicians and Surgeons of Alberta, the Medical Panel Office will establish a roster of physicians who are approved to conduct IMEs.
The Medical Panel Office will be the administrator of the roster.
When an IME is required, the worker will choose the IME physician from the roster.
The WCB will no longer make the decision about which physician performs the IME.
In the event that a party disagrees with the results of an IME, that party can access the Medical Panel Office process.
In addition to the IME obtained under this process, a party can still choose to obtain their own independent medical examination at their own expense.
This approach will eliminate the apprehension of bias that currently exists in respect of
WCB-retained physicians and IMEs. Since IME physicians will be recruited by the Medical Panel Office, rather than by the worker or the WCB, a higher degree of confidence will be able to be placed in their conclusions. This should help reduce the number of instances in which there are conflicting IMEs, as a party will be challenged to demonstrate why and how their personally-obtained IME should be preferred over the IME obtained through the roster process.