Sep 062020
 

WorkSafe2: Follow-up investigation into the management of complex workers compensation claims

https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/worksafe2-follow-up-investigation-into-the-management-of-complex-workers-compensation-claims/

FROM OMBUDSMAN AUSTRALIA WORKSAFE2 – Follow up Investigation. From the evidence in this report, it would appear that my 2016 investigation only scratched the surface. New issues were also identified in the files we reviewed, and confirmed in interviews, including the use of surveillance without adequate justification. Such an invasion of people’s privacy is only permitted if there is some evidence of worker dishonesty, but we found numerous examples of surveillance being used without a shred of evidence to justify it. Take the case of Sophia, an aged care worker, who had injured her back at work. The agent used surveillance to check her mobility. Even though the surveillance report confirmed she walked with a limp throughout, the agent considered extending it. The surveillance must have been intrusive, as Sophia asked the agent if they were doing it. Even more troublingly, the agent denied it and told her if she had concerns about being followed she should go to the police. We also saw significant evidence of unfair return to work practices: many requiring a worker to attend occupational rehabilitation in wholly unsuitable circumstances, such as the man experiencing severe psychotic hallucinations, or the homeless man in hospital after attempting self-harm, and whose non-compliance notice was sent to the residential address he had been obliged to leave despite knowing he was homeless. “For the injured worker, it’s like a court. They’re traumatised, they’re stressed … they’re the only person in the room not paid to be there …” Conciliation Officer The workers affected in the cases we reviewed included nurses, teachers, police officers, aged care and childcare workers, truck drivers, baggage handlers and tradesmen. The emotional toll was unequivocal; the cost not only to them and their families, but to society, should not be underestimated. Many of the decisions and actions we saw were not only unjust, unreasonable and wrong. Some were downright immoral and unethical.

Aug 212020
 

Next Tuesday, John McKinnon, IWC, will be leading the session on Injured Workers turning 65, regarding loss of income and poverty.  John is a lawyer at Injured Workers Community Legal Clinic with decades of experience in Workers’ Comp Law.

We will also look at ONIWG’s Workers Comp Is a Right campaign, which is celebrating its 3rd anniversary in September.  We continue to fight for an end to deeming and pre-existing health conditions and the need to listen to treating physicians.  

The Thunder Bay & District Injured Workers Support Group (TB&DIWSG) is pleased to announce their partnership with the United Steelworkers Family and Community Education Fund (FCEF) in coordination with Northwestern Ontario Steelworkers Area Council in the sponsorship of our weekly legal education and support group sessions online until December 1st.

Please note that we will be setting up a new session so the sign-in info will change, beginning September 1st.

Everyone is invited to attend.   We hope to see you on Tuesday.   Janet PatersonPresidentThunder Bay & District Injured Workers Support Group Ontario Network of Injured Workers Groups (ONIWG)  Janet Paterson is inviting you to a scheduled Zoom meeting. Topic: My MeetingTime: Aug 25, 2020 10:00 AM Eastern Time (US and Canada)        Every week on Tue, until Aug 25, 2020, 1 occurrence(s)        Aug 25, 2020 10:00 AMPlease download and import the following iCalendar (.ics) files to your calendar system.

Weekly: https://zoom.us/meeting/tJUtcOGtqT4qEtWRydDXztXwePqG7HTw6Dqi/ics?icsToken=98tyKuCprjwiH9OQsBGGRowcAo_CWe_wtiVfj7dqrgbhJxhJdjvhM9JTFeVXJM-G Join Zoom Meetinghttps://zoom.us/j/91078575081?pwd=cm5nRVRQMEcvNU9PWmgzQXBGY0toZz09 Meeting ID: 910 7857 5081Passcode: 279030One tap mobile+16473744685,,91078575081#,,,,,,0#,,279030# Canada+16475580588,,91078575081#,,,,,,0#,,279030# Canada Dial by your location        +1 647 374 4685 Canada        +1 647 558 0588 Canada        +1 778 907 2071 Canada        +1 204 272 7920 Canada        +1 438 809 7799 Canada        +1 587 328 1099 CanadaMeeting ID: 910 7857 5081Passcode: 279030Find your local number: https://zoom.us/u/acURTh2YZu

Aug 162020
 

WorkSafe2: Follow-up investigation into the management of complex workers compensation claims

OMBUDSMAN AUSTRALIA WORKSAFE2 – Follow up Investigation.From the evidence in this report, it would appear that my 2016 investigation only scratched the surface. New issues were also identified in the files we reviewed, and confirmed in interviews, including the use of surveillance without adequate justification. Such an invasion of people’s privacy is only permitted if there is some evidence of worker dishonesty, but we found numerous examples of surveillance being used without a shred of evidence to justify it. Take the case of Sophia, an aged care worker, who had injured her back at work. The agent used surveillance to check her mobility. Even though the surveillance report confirmed she walked with a limp throughout, the agent considered extending it. The surveillance must have been intrusive, as Sophia asked the agent if they were doing it. Even more troublingly, the agent denied it and told her if she had concerns about being followed she should go to the police.We also saw significant evidence of unfair return to work practices: many requiring a worker to attend occupational rehabilitation in wholly unsuitable circumstances, such as the man experiencing severe psychotic hallucinations, or the homeless man in hospital after attempting self-harm, and whose non-compliance notice was sent to the residential address he had been obliged to leave despite knowing he was homeless.“For the injured worker, it’s like a court. They’re traumatised, they’re stressed … they’re the only person in the room not paid to be there …”Conciliation OfficerThe workers affected in the cases we reviewed included nurses, teachers, police officers, aged care and childcare workers, truck drivers, baggage handlers and tradesmen. The emotional toll was unequivocal; the cost not only to them and their families, but to society, should not be underestimated. Many of the decisions and actions we saw were not only unjust, unreasonable and wrong. Some were downright immoral and unethical.

https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/worksafe2-follow-up-investigation-into-the-management-of-complex-workers-compensation-claims/

Aug 122020
 

Here’s an excellent article by Sara Mojtehedzadeh and Jennifer Yang focusing on a major COVID-19 outbreak in an industrial bakery in Toronto.  They use this story to illustrate the woeful lack of consistent data on workplace outbreaks, plus the apparent massive under-reporting to MOL and WSIB.   

The article also highlights the vulnerability of the workers in these types of workplaces, including temporary agency workers in particular.

More than 180 workers at this Toronto bakery got COVID-19 — but the public wasn’t informed. Why aren’t we being told about workplace outbreaks?

https://www.thestar.com/business/2020/08/10/more-than-180-workers-at-this-toronto-bakery-got-covid-19-but-the-public-wasnt-informed-why-arent-we-being-told-about-workplace-outbreaks.html

Jul 252020
 

Demers report on occupational cancer requires immediate action to review denied cancer claims, says Ontario Federation of Labour

July 23, 2020

Workers and family members affected by occupational cancers are not surprised by the Demers report findings that well over 90% of occupational cancers are unrecognized and uncompensated by the WSIB every year. Only a fraction result in WSIB claims, and more than one-half of those claims are denied, very often based on technicalities that are not supported by legal principles or medical science.  The Demers report also showed that Ontario is recognizing far less occupational cancer than a number of European countries such as Germany.

“This is an urgent situation.  It has devastating consequences for the affected workers and their families, many of whom end up on social assistance.  It also imposes very significant costs on the taxpayer which should properly be paid by employers through the WSIB. The WSIB must take action immediately,” said Ontario Federation of Labour President Patty Coates.

By Labour Day, WSIB must implement policy recommendations regarding the adjudication of cancer claims involving exposures to multiple carcinogens and begin a review of all previously denied occupational cancer claims. The provincial government must also add to the schedules under the Workplace Safety and Insurance Act all of the carcinogens identified by the International Agency for Research on Cancer (IARC) as carcinogenic to humans. In the longer term, the government must move beyond the scope of Dr. Demers’ mandate to restore an independent Occupational Disease Panel and require the WSIB to apply standards set by the Panel when adjudicating disease claims. It must also fully fund the Occupational Health Clinics for Ontario Workers to provide timely investigations of occupational disease clusters at the request of workers and surviving family members.

“Failure to recognize occupational diseases not only harms those workers making claims, it harms future prevention efforts,” said Coates.

The Demers report was first promised by the outgoing Liberal government in the spring of 2018, following years of activism by workers and family members affected by the extensive confirmed carcinogenic exposures at the GE Peterborough facility.  The current PC government followed through on that promise only in January 2019, after renewed activism by former Kitchener area rubber workers and their families highlighted that the WSIB remains completely out of step with advances in scientific research.

In the meantime, including the last six months while the report sat on a shelf at the Ministry of Labour, hundreds of workers have received WSIB denial letters for new and reconsidered occupational cancer claims that include the promise of another review after the release of the Demers report.

“It is now clear from the report itself that hundreds, even thousands, more claims have been unjustly denied in the past and require urgent review,” said Coates. “The WSIB must act immediately on the recommendation to create new policies addressing exposure to multiple carcinogens in the workplace and the interaction between occupational and non-occupational exposures.

The WSIB has long pretended that “lifestyle” issues like smoking, alcohol and obesity somehow magically counteract workplace carcinogens, despite scientific findings that multiple carcinogens nearly always act together, sometimes synergistically. The same goes for a “family history” of cancer, which with very few exceptions must be considered nothing more than one factor in a complex picture, interacting with exposure to carcinogens. The WSIB must stop looking for easy “either-or” technicalities and start dealing with the complex realities of “both-and”.

By Labour Day, the WSIB can and must put Interim policies addressing multiple exposures and the interaction of occupational and non-occupational causes into the hands of its adjudicators, and suspend all existing policies on individual diseases with inappropriate treatments of these issues and other arbitrary considerations such as specified latency periods between exposures and the onset of disease.

And finally, the provincial government must also add all of the carcinogens identified by the IARC as carcinogenic to humans to the schedules under the Workplace Safety and Insurance Act (WSIA).  These are known as IARC Group 1 carcinogens.  Many of these substances have been known to be carcinogenic for literally decades and yet never added to the WSIB’s schedules.  This action does not require a legislative amendment.  The provincial cabinet can do this simply by amending the regulations to the WSIA.

The Board must review all previously denied cancer claims in light of these new policies and overturn decisions that failed to properly address multiple carcinogens in the workplace, or to recognize the interaction rather than competition between occupational and non-occupational factors or which have been invalidated by new research.

This process cannot wait for the rebuilding of scientific and medical capacity at the WSIB and Ministry of Labour recommended by the report. Clear errors can and must be corrected without further delay, and the identification of outstanding issues raised by these reports of occupational cancer from Ontario workers must direct the future use of that renewed capacity. Failure to recognize occupational diseases not only harms those workers making claims, it harms future prevention efforts.

In the longer term, regulation- and policy-making must change in ways beyond anything contemplated by Dr. Demers’ mandate from the Ministry. The WSIB’s terrible performance results from the tangle of conflicting statutory duties and political interests created by its roles as legislator, adjudicator, benefit and service provider, revenue collector and investment fund manager. Ontario must restore a fully funded, independent Occupational Disease Panel with worker, employer and scientific representation, focussed exclusively on establishing fair criteria for evaluating compensation claims. This Panel must have clear, exclusive jurisdiction to establish those criteria, with the WSIB bound to implement them. The Board can no longer be allowed to make up its own rules as it goes along.

The same goes for the investigation of cancer clusters. Neither the Board nor the Ministry can be trusted to handle what are effectively complaints about the failure to prevent occupational cancers in a particular workplace or industry or to fairly compensate affected workers who have come forward on an individual basis. Historically, scientific and medical resources of both Board and Ministry were often wasted, as in Peterborough, in efforts to convince workers and families that they should not believe their eyes, that cancer clusters did not exist, were not as big as they seemed, or when looked at case-by-case by the WSIB were not caused by exposures in the workplace. In other cases, such as silicosis or cancer in Elliot Lake uranium miners or asbestos workers in Sarnia, information about disease clusters confirmed and documented by Ministry scientists was more likely to be shared at international scientific conferences or in journal articles than with the affected workers, their doctors and unions.

In these instances and many more, those directly affected have turned to the Occupational Health Clinics for Ontario Workers (OHCOW) for independent occupational hygiene and medical assessments of workplace exposures and their relationship to cancers and other diseases. Workers deserve independent assessments of suspected clusters and their own individual health conditions as a matter of basic health care, provided as a professional service directly to them and not exclusively as a sidelight of the commercial, legal and political projects of employers, politicians and bureaucrats.

OHCOW is the only actor in the health and safety system that has the expertise and credibility with workers to pursue investigations of occupational disease clusters, but is not fully funded to respond quickly and comprehensively. That needs to change and change fast.

The Ontario Federation of Labour represents 54 unions and one million workers in Ontario. For information, visit www.OFL.ca and follow @OFLabour on Facebook and Twitter.

Jul 032020
 

Media Release

June 26, 2020

Income Security Advocacy Centre and Parkdale Community Legal Services welcome the Supreme Court’s landmark decision for gig workers

Toronto: In a ground-breaking decision released this morning, the Supreme Court of Canada made it easier for workers to challenge unfair contractual terms imposed by companies that hire them, whether or not they are in a formal employment relationship. The court sided with Uber drivers and reached a decision that addresses the concerns about access to justice highlighted by ISAC and PCLS in their submission before the court.

Today’s decision in Uber Technologies Inc. v. Heller is a win for drivers who were forced to accept a standard “mandatory arbitration agreement” when they signed up on the Uber app. According to Uber, this meant that the drivers could no longer go to court or the Ministry of Labour with workplace disputes. Instead, they would have to go before a private decision-maker in Amsterdam, in a process that is both secret and expensive. In a 8-1 decision, the Supreme Court decided that the agreement could not stand, and the drivers could go ahead with a class action to determine whether they are employees.

“ISAC and PCLS teamed up to intervene in the case to argue that workers’ right to seek justice in our public institutions cannot be signed away or privatized,” said Nabila Qureshi, staff lawyer at ISAC who provided oral arguments before the Supreme Court. “Otherwise, employers can sidestep laws that guarantee workers’ rights.”

In siding with Uber workers, a majority of the judges held that the mandatory arbitration agreement was unfair, or “unconscionable”. “The court recognized that Uber is in an unequal relationship with its drivers,” Qureshi added. “Companies cannot use this power imbalance to strip workers of their rights under the guise of an ‘agreement’”. 

“This decision strengthens protections for workers who may be taken advantage of by the companies that hire them,” said John No, staff lawyer at PCLS. “To show that an agreement was unconscionable and therefore invalid, a worker will no longer be required to prove that their employer knowingly took advantage of the worker’s vulnerable status. This is an important victory for workers.”

“During the COVID-19 pandemic, previously undervalued workers, like farm workers, food delivery ‘gig’ workers, and cleaners, have been recognized as essential to our community and achieved important gains,” No added. “But like grocery stores that cancelled pandemic pay, employers still have great power over workers. To have a more just and fair society, we need to transform working conditions and the systems that allow for exploitation.”

In an earlier decision in this case, the Court of Appeal for Ontario had found that mandatory arbitration agreements imposed by employers are always illegal because they violate Ontario’s Employment Standards Act. The Supreme Court did not disagree with that ruling, but left that issue to be determined on another day.  

Income Security Advocacy Centre (ISAC) is a community legal clinic with a mandate to advance the systemic interests and rights of low-income Ontarians around income security programs and low-wage precarious employment.

Parkdale Community Legal Services (PCLS) serves low income residents of Parkdale and Swansea neighbourhoods in Toronto. Since its founding in 1971, PCLS has advised and represented thousands of employees and former employees against their employers.

Jun 142020
 

WHY we advertise other provinces’ media write-ups  in support of Injured Workers . 

In Alberta information is not reported on the plight of Alberta injured workers through the media . If Alberta Injured Workers are lucky a story may be printed once or twice a year. Other provinces throughout Canada steadily have the support of the media which in turn garners the support of the public to outcry for justice. Although injured workers in Alberta suffer the same ongoing problems and maybe worse than  other provinces, the public and Government is not informed . 

Injured workers of Alberta need public and government  support when the WCB Alberta and the Appeals Commission working for the WCB Alberta refuse to comply with the Workers Compensation Act, The Alberta Court of Appeal, the Supreme Court of Canada or Human Rights. 

Out of sight of public scrutiny can allow those in power to abuse their power and ignore the laws and policies that are put in place to protect the disabled from work injuries that left them without any earnings , medical treatment and personal care. 

Like this lucky fellow below, many injured workers in Alberta have had their claim accepted and meet all laws in Alberta and Canada but WCB Alberta and the AC  still refuse to comply . The AC and WCB have made decisions against Alberta Injured Workers knowing they never had jurisdiction to overrule law. Injured Worker ‘s  in Alberta cannot get justice without any public scrutiny Alberta Injured workers are ignored  and cannot advocate alone.

Injured worker gets back pay, apology after WCB ignores ruling

ONTARIO VS. ALBERTA VS. OTHER PROVINCES

ONTARIO

Tribunal adjudicators perform judicial functions. They must interpret legislation, weigh evidence and make legal and factual findings just as judges do. These tribunals are therefore properly understood to be judicial tribunals and the process for appointing and re-appointing adjudicators to judicial tribunals must be as principled as the process for appointing judges. At a minimum, decisions about re-appointments must be transparent and demonstrably free from any political interference. The process for selecting new appointees must be merit-based and competitive as required by the Adjudicative Tribunals Accountability, Governance and Appointments Act (“the Tribunals Act”).

The system the government inherited

The previous government established a modern tribunal appointment and reappointment system as set out in the Tribunals Act and the Directive on Appointments and Re-appointments. The key features of the system were as follows:

A commitment to a competitive, merit-based process for appointments to tribunals

Qualified candidates were subject to a rigorous application process conducted by thetribunal (e.g. published selection criteria, interviews, writing a sample decision).

The Chair provided the government with a list of the most qualified candidates.Appointments were made only from that list.

With very few exceptions, appointments were for fixed terms, starting with an initial two-year appointment, followed by a three-year re-appointment, and a final five-yearappointment.

The Chair was solely responsible for making re-appointment recommendations. Theserecommendations were routinely accepted by the government. While not perfect, this system had many advantages:

The Tribunal Chair, who is in the best position to know the tribunal’s needs, retained control over who would be appointed and re-appointed.

People could look to tribunal adjudication as a profession with a reasonable expectation of at least 10 years of work subject to good performance. This made the position attractive to mid-career professionals with expertise in the subject matter of the tribunal and often adjudicative experience. Adjudicators were eligible for appointment to a new tribunal at the conclusion of a term, preserving the adjudicative experience for the overall system.

The potential for partisan appointments was significantly reduced.

Tribunals could plan on the basis of having a stable group of meritorious and experienced adjudicators.

What the present government has done

The present government has largely abandoned the system it inherited.

Instead:

Appointment recommendations from Chairs are frequently not accepted. Chairs have been pressured to consider alternate candidates proposed by the government.

Recommendations from Chairs about the re-appointment of existing adjudicators are routinely rejected, with no explanation provided. This is the principle cause of the existing severe shortage of adjudicators.

When re-appointments are made, they are for irregular and unpredictable terms. The length of terms has varied considerably even in the same tribunal, with no explanation for the different terms. Many new appointments have also been for irregular terms.

Most re-appointments have been for short terms, sometimes as short as 6 months. Even Chairs and Associate Chairs have been re-appointed for short terms.

Discussion

Even before the COVID-19 emergency, the circumstances of Ontario’s tribunals were already dire. The tribunals of most relevance to disadvantaged individuals were, in particular, seriously weakened. Experienced adjudicators were let go, large numbers of vacant adjudicator positions were left unfilled, and key tribunal leadership positions were either left vacant or filled with people with responsibilities for too many tribunals. The lack of any predictability about re- appointments, combined with a general demoralization about the deterioration of the sector, has necessarily caused large numbers of adjudicators to leave for less precarious employment, adding to the shortage. The precarious nature of an appointment also makes it difficult for tribunals to attract experienced, professional candidates.

Now, in the midst of a pandemic, the folly of this situation is even more evident. The numbers of the vulnerable have greatly increased, as has their need to be able to claim the protections offered by our laws. Now more than ever tribunals need a full complement of highly qualified adjudicators. Now more than ever they need leaders with the necessary subject matter and adjudicative expertise to effectively deploy resources and adjust processes to ensure procedural protections and deliver high quality outcomes. Now more than ever Tribunals Ontario needs to be led by someone with recognized expertise in tribunal leadership, someone who will be widely recognized as an impartial, non-partisan and independent guarantor of the integrity of this vital part of our administrative justice system.

The tribunals in Tribunals Ontario will play a critical role as we move forward. They will have to change how disputes are resolved and make important decisions about rights and obligations in the continually changing context of the pandemic. To do this, they need to be fully functioning. The mismanagement of Tribunals Ontario over the last two years, leading to a severe reduction in adjudicative capacity and competence, rising backlogs, demoralization of those who are left, and a leadership vacuum, means that these tribunals are nowhere near being able to function fully.

There are three things that need to be done as quickly as possible to rectify this situation.

  1. Fill the leadership positions through a credible, competitive and transparent process: The position of Executive Chair of Tribunals Ontario is a critical position and must be filled quickly. However, if the process is not credible, competitive and transparent, the integrity of Tribunals Ontario will be compromised. Parties, the public, and the tribunal adjudicators will lose faith in the ability of tribunals to deliver justice. Appendix B provides a detailed discussion of this issue.
  2. Restore the integrity of the appointment and re-appointment process: Tribunals need to have adequate numbers of experienced, competent adjudicators. The ongoing refusal to re-appoint adjudicators on the recommendation of the tribunal Chair or Associate Chair must stop. New adjudicators must be appointed as quickly as possible and the appointment process must at a minimum be consistent with section 14(1) of the Tribunals Act which states:

14 (1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:

1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.

2. Aptitude for impartial adjudication.

3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.

3. Appointments and re-appointments must be for fixed terms

The current approach of inconsistent and mostly short terms for appointments and re- appointments will result in a serious erosion of the principle of adjudicative independence, a cornerstone of our justice system.

Those who appear before adjudicative tribunals must have confidence that the adjudicator in front of them has the necessary independence to make decisions on the basis of the law and the evidence, free from any concern that the adjudicator’s continued employment is conditional on the government’s approving the adjudicators decisions. This becomes especially obvious for tribunals where the government is a party.

Articles About WCB, Appeals Commission, and Injured Workers

Response to the WCB Review: To read the Canadian Injured Workers Association of Alberta Response to the Final Report of the Alberta Workers Compensation Board Review Panel, click here

PLATFORM FOR CHANGE (2004)
As amended by the Thunder Bay & District Injured Workers’ Support Group

Return to Work and Ripple Effects on Family of Precariously Employed
Injured Workers

Workers’ Compensation System a ‘National Disgrace’: United Steelworkers

Spotlight on WCB policies and opioids

Meredith Principles

A. Sim’s Recommendations – Progress Update

Sims Report

WCB Appeal System Legislative Review

Member of the Legislative Assembly Workers’ Compensation Board Service Review Input Committee Final Report – October 2000

WCB Review – Working Together Progress Report