WSIB and OHS for Employers in Ontario – September 2013

First Annual Workers’ Compensation Case Update from the OBA Sept. 26 in Toronto

Come and join me and meet the very best in the field of Workers’ Compensation Law.  You can attend in person or on-line Thursday September 26, 2013 7:00 pm until 9:30 in Toronto.

September 30, 2013 NEER Annual Statements are coming!

If possible, get your most costly re-consideration decisions made and applied before Monday September 30, 2013. If there is an unfortunate delay in receiving your decisions, remember to include a request for a retroactive manual adjustment to your NEER statement in your written submissions. If you receive a surcharge, let’s see what we can do to get some of that back for you. And you will have to pay it within 30 days (you can request a payment plan to save on cash flow).

Management Side WSIB Guidelines to follow:

1. Form 7 Review (always send it to me first, so I can ensure that your interests are protected in the long run for Appeals, especially in sections C, F, and K). Remember to word Section C6 as the employer’s statement of what happened. Do not use the words dictated by the worker (they have the Form 6 for that). This IS a very important statement about what the employer is accepting liability for. When you sign your name on the Form 7 you are accepting the potential liability for an individual claim costing  up to a maximum of $416,0000 (2013).  Also, it is best to write everything in the tone that you are simply recording what was said, stated, alleged or reported by the employee.  Eg. The worker reported that he injured his back, the worker stated that he fell.. the worker indicated that he bumped his elbow.  Don’t put too much detail here.  Use “the worker stated that he fell from a platform and bumped his head” instead of “the worker fell 20 feet from a platform smashing his head on the cement”.

2. Send in the Notice of Intent to Object form on almost all decisions to protect your interests and opportunities to appeal in the long run. The time limit to submit this Form is only 6 months after a decision was written but more often than not, a claim does not reveal problems which should be appealed until long after 6 months. Submitting the Notice of Intent to Object does not start the Appeal process in motion, it only bookmarks your opportunity to object later.

3. Always offer suitable and safe modified duties in writing right away for every injured employee if not totally disabled. Doctors do not make the decisions in the Return to Work process. Return to Work is a team effort and decision making is collaborative process involving the worker, the employer, the doctor and the Case Manager or Return to Work Specialist. If you need help with getting someone back to work, we can help.

Canadian Breast Cancer Foundation Run for the Cure October 6, 2013

I am participating in this run for my beautiful cousin Beth who passed away last month at the age of 45 after a short and brutal battle with Breast Cancer. Your donations would be greatly appreciated.

Complimentary OHS Policy with IRS Statement

What do we want in health and safety?  To inspire, motivate and get our workers to pause, stop, and listen to their self-protective inner voice or intuition whenever they think about doing something unsafe! Protecting workers, saving lives, reducing costs, risks and liabilities: it is really all about prevention. (click here)

 

WSIB and OHS for Employers in Ontario – May 2013

Miracle of Medicine just to warm your heart and make you cry:

My son in first year med school sent this video clip on cleft lip.

Current Issues in WSIB Law: Diagnosis, Analysis, Resolution – May 23 – Register to Watch On-Line

Every year the Ontario Bar Association sponsors an Annual all-day WSIB conference that is tremendously informative and given to a room full of the very best WSIB practitioners, Vice Chairs, WSIB and WSIAT staff in the Province. It is well worth watching (in person attendance is now full). Prepare all of your questions, make new connections and get informed. You will receive such valuable information, that you will want to come back every year. Here are the links for both the registration information and the program outline.

MOL Inspection Blitzes Begin this Month:

The Ministry of Labour has posted their schedule of Inspection Blitzes in connection with their enforcement of both the Occupational Health and Safety Act and the Employment Standards Act.

The first focus is on “vulnerable workers” for May until August for the Industrial and Health Care sectors. Special attention, procedures, monitoring and mentoring should be in place for any “new” worker or any “young
worker”. Some other “vulnerable worker” categories that you should consider in your health and safety procedures include: pregnant, disabled, working with restrictions, working with a chronic mental or physical condition, first time employee (no matter what age), temporary, personnel agency employee, language barriers, employees with possible mental illness, long term or very senior employees (may be resistant to change and need special monitoring) and possible domestic violence victims.

Also, the MOL is looking to inspect the Mining Sector for their Internal Responsibility System. Every employer should be integrating the IRS into their health and safety program. For an excellent on-line course that you can purchase and teach your team, go here.

New BC Workplace Bullying & Harassment Policies March 2013

Will be helpful to all employers. Get them here.

Now Affiliated with Charlebois Associates: HR Proactive Inc.

Since 1997, HR Proactive Inc. has been helping employers understand and comply with their legal responsibilities through a wide array of training products and services. They provide extensive experience in Human Rights related services and expert Human Rights Investigations which are critical for providing a solid evaluation of the matter that you are facing, and also a fair and impartial report that can be used to assess your matter or to prepare for a Hearing before the Human Rights Tribunal of Ontario.

Golfers, Sponsorship and Donation opportunities urgently requested: Epilepsy Support Centre – Third Annual Rick Berg Invitational Golf Tournament

In London, Ontario on May 30, 2013. Come golf with me (I use that term very loosely and have a bad case of golfer’s amnesia from last year, my first ever season of “golf”). We continue to celebrate Rick’s legacy through this tournament and this year’s proceeds will be used to raise awareness and fund research funding epilepsy – with a focus on SUDEP (Sudden Unexpected Death in Epilepsy).

Everyone have a safe and amazing long weekend!

 

WSIB and OHS for Employers in Ontario – April 2013

Current Issues in WSIB Law: Diagnosis, Analysis, Resolution – Save the Date May 23, 2013 Toronto

Please join me in Toronto. Every year the Ontario Bar Association sponsors an Annual all-day WSIB conference that is tremendously informative and given to a room full of the very best WSIB practitioners, Vice Chairs, WSIB and WSIAT staff in the Province. It is well worth attending! Bring all of your questions, make new connections and get informed. You will receive such valuable information, that you will want to come back every year. Here are the links for both the registration information and the program outline.

Mandatory WSIB Construction Coverage Effective January 1, 2013:

Before January 1, 2013 there were approximately 6400 CAD-7 (construction) employers registered in Ontario. Effective January 1, 2013 all construction companies (with or without employees) including Partners, Executive Officers, Independent Operators and Sole proprietors will be now be “deemed” workers under the amended Workplace Safety and Insurance Act and the number of registered construction employers is expected to rise substantially.

There are two exemptions: 1) people who only do home renovation work, directly for home owners, and who do absolutely NO other commercial construction work and 2) one partner or executive officer of a corporation may file for an exemption (will need to file a Declaration of Exemption from coverage if he or she does absolutely no construction work.

Periodic site inspections are permissible.  These “deemed” workers are now classified into two groups: 1) those who do non-exempt construction work and 2) those who do no construction work at all.

For those who do non-exempt construction work, they will have to pay regular premiums at the Construction Rate Group rate on the labour portion of all of their contracts. Independent Operators or owners of construction companies who do their own construction work are expected to feel the greatest cost impact of this new legislation. They will now have to pay full premiums of approximately $7500 per year (using Rate Group 764) on their own earnings up to the maximum insurable earnings per year (which is $83, 200 for 2013).

For those partners and executive officers who do no construction work at all, they will have to pay premiums on their income (no matter how it is classified, even dividends) at a nominal rate of .21 cents per $100 / payroll. To get this nominal rate, non-exempt partners or executive officers in construction will have to complete a Request for Rate Group 755.

New JHSC Training Provider

Workplace Health and Safety Network provide WSIB Courses (beginner to advanced) click on the logo and check them out now or go to www.whsn.ca.

WSIB and OHS for Employers in Ontario – September 2012

WSIB Policy Review

In an excellent initiative this year, the WSIB is beginning a process to regularly review all of the major operational policies which govern decision making. There are four policies currently under review: 1) Recurrences 2) Work Disruptions 3) Permanent Impairments and 4) Aggravation Basis. All stakeholders should consider reviewing the policies and contributing their input for change, clarity, consistency, relevancy and improvements. Stakeholder feedback can be submitted at public hearings starting at the end of October 2012 or in writing, or directly to WSIB staff.  More Info.

WSIB Appeal Backlog: 9000 Appeals!

1. Be proactive for fair evidence based decisions starting on the Form 7 (specifically sections C6, C7, C11 and C12 give lots of details. In section C6 when you are describing “what happened” remember it is the employer’s statement about what was “alleged” or “reported” to have happened, not the worker’s statement);

2. Object now and within the time limit (usually 6 months) to all decisions that could be incorrect, or could be found to be incorrect anytime in the next 4 years (NEER) or 5 years (CAD-7) in order to preserve your opportunity to appeal if and when the time comes;

3.When Appealing a decision look for: 1.Facts (included, excluded, missing) 2.Evidence: (Medical, Expert, Witnesses, Reports, Investigations) 3.Policy 4.Law 5.Reasons (how facts, policy and law were used by the decision maker) 6.Detailed Causation analysis (in both the decision and the WSIB Access file) 7.Credibility issues

Cézanne is Guest Speaking in London & Toronto:

Click Here to find out more!

 

WSIB and OHS for Employers in Ontario – April 2011

The Power of Words in Health and Safety:

How can we obtain better responses to what we say in health and safety? I found this very provocative video on a great blog by Tim Autrey called “hufactor.com”. I am looking forward to checking out his “PEM” Performance Enhancement Matrix. His site looks interesting:”practicingperfectioninstitute.com“.

Take a minute to watch it here.

WSIB Eligibility Adjudicator Reverses Entitlement Decision

This is a fantastic success story about a tenacious employer who decided to fight what appeared to be a fraudulent WSIB claim filed by a worker and allowed by the WSIB despite his excellent evidence to the contrary. He was threatened with “non-cooperation and return- to-work obligations” and was told by the EA and her manager that they would not even review the surveillance evidence and telephone records which clearly demonstrated that the worker could not have been “in the course of his employment” at the time of the alleged workplace injury. Then his Account Specialist told him not to waste his money on a lawyer because his company surcharge would be capped due to the the fact that he was in the MAP experience rating system! (helps to explain the $13 billion unfunded liability). Wow.

She did not even consider the fact that a worker would be collecting full LOE benefits for an indefinite period of time and that the employers of Ontario would be paying for those fraudulently obtained benefits. It is truly disappointing that system has become so dysfunctional that the WSIB would not even consider the unequivocal evidence that the employer presented until he hired us to help convince them. With the help of a highly skilled investigations company targeting their efforts at the very crux of the EA’s faulty decision- making and our lengthy submission outlining the law, facts, policy and the inadequate conduct and decision-making of the Board, the decision was reversed. One small MAP employer financed this battle and won both for his own cost statement and for the rest of the employers in the Province.

 

WSIB and OHS for Employers in Ontario – January 2011

Upcoming Seminars for Employers:

FEBRUARY 17, 2011:

1. Reducing the Duration and Costs of Occupational Disabilities using the SPICE Model

Presenters: Dr. Ketan Patel, Physican and Cézanne Charlebois, Lawyer

In utilizing elements of the S.P.I.C.E. model (Colledge et al, 2000) this Complimentary Breakfast Seminar will be presenting some of the materials that will be used for a presentation at the Annual CSSE 2011 Professional Development Conference and Exhibition in Whistler, British Columbia on September 18-21, 2011.

Come and learn how S.P.I.C.E. can provide your company with a whole new model for managing injuries, disabilities and mental illness in the workplace.

Location: 341 Talbot Street, London, Ontario (Main Floor Boardroom) Time: 8:00 a.m. – 9:00 a.m.

Advance Registration is Required
Contact: admin@charleboislaw.com

APRIL 6, 2011:

Workplace Safety and Insurance

I am m pleased to inform you of an upcoming seminar I will be moderating and speaking at. I think this program will be of particular interest to you and I would like to personally invite you to attend.

April 6, 2011 in London, ON

Because I am a faculty member, you can receive 20% off the fee. Please click on the link for more details: www.lorman.com/386680 (then click on Printable Brochure)

If you or any one of your colleagues wish to attend, there are several easy ways to register:

  • Complete the registration form and fax or mail the form and payment to Lorman Education Services
  • Register online at http://www.lorman.com
  • Call 1-866-352-9539 When registering, use priority code 15800 and discount code F2716129.

 

WSIB and OHS for Employers in Ontario – December 2010

Have a Safe and Joy filled Holiday Season

Sharing two videos that may bring you tears: Some of you have already received the second video earlier this week. We received lots of feedback that it moved people to tears. That means it’s a keeper and should be shared on a bigger scale. So here you go. We found the perfect prelude to that video.

Seven Wonders (be sure to stay until you hear the second set of “7 wonders”)

Random Acts of Culture and the wondrous gift of “hearing” 

 

WSIB and OHS for Employers in Ontario – December 2010

Two Employees With Back Injuries Fired for Lying

1. These cases are too good not to share:

Two recent arbitration decisions in Ontario and Manitoba are good news for employers! They involve employees who claimed to have disabling non-compensable back injuries which prevented them from performing their regular duties. In both cases, the employee received short term disability benefits and then applied for Long Term Disability Benefits. One was denied for insufficient medical information. Both intentionally misrepresented their physical abilities and gave misleading or untruthful information to the employer or the disability insurance provider. These unionized employees were fired for lying and both dismissals were upheld at arbitration. It was only through video surveillance investigations that fundamental discrepancies were found in the information provided by the medical doctors and the allegedly disabled employees and their true level of activity. Based on these discrepancies, the employees were fired for lying and both dismissals were upheld (the Ontario grievance appears to have been heard in 10 long days of arbitration).

Here are the cases:

Ontario: Kingston (City) v. C.U.P.E., Local 109 (McLaughlin Grievance) Award: March 12, 2010

Manitoba: Winpak Ltd v. Communications, Energy and Paperworkers Union of Canada, Local 830 (Cook Grievance) Award: April 15, 2010

A caution about Surveillance Investigators: At Charlebois Associates, we have used investigators from Windsor to Barrie and we know that this is a significant expense for employers (approximately $1,000 / day). Surveillance that is well conducted is invaluable, especially if you obtain results like those mentioned above. Picking the right investigations company is crucial to your success and the process must be carefully conducted to protect you from claims that you are crossing the privacy line or abusing any number of potential or alleged protected employee rights. If you would like to read these lovely cases, or would like assistance with any matter involving the possible need for surveillance, please send us an email.

2. ‘Interim’ Work Reintegration Policies (the in-house LMR, which really means “in the employers” house LMR) became effective on December 1, 2010. Charlebois Associates will be hosting complimentary information seminars for employers in Windsor, London and Toronto in January 2011. Send us an email if you would like further information on these sessions.

WSIB and OHS for Employers in Ontario – November 2010

WSIB Update

1. September 30, 2010 NEER Firm Summary Statements are coming in. If you need to launch an Appeal on one of your costly claims, we can help.

2. 4-year NEER Window: The NEER window is being expanded (for now) to a 4-year NEER starting presumably in 2011 and beginning with the Accident Year 2008 (now, that year will stay on your NEER statement for one more year until September 30, 2012, and claims with an Accident Date in 2009 will stay on your NEER until September 30, 2013). Allegedly, the 4-year NEER window is not finalized yet as stakeholders are asked for their input up until February 15, 2011. We strongly urge ALL employers to send Maureen Mullen, Director of Benefits Policy your thoughts on the 4-year NEER.You might want to say “No Thanks” to the 4-Year NEER window.  Or you might suggest that the WSIB should be slashing some costs internally rather than heaping higher premiums and longer periods to pay on employers.

They have already raised premiums (below) and lengthening the NEER window will not improve Return to Work Outcomes, it will only shift more of the costs for a loner period onto employers. We expect however, that the “stakeholder input” is just another ruse. The WSIB will likely increase the NEER window for the next few years until it is a 6-year-NEER.

3. “Modest” Increase in Employer Premiums (2011 and 2012)
Just a few days after his talk in Toronto (see our September 30, 2010 Bulletin for details of his talk), WSIB President David Marshall came through with his promise to increase employer premiums for the next 10 years in order to eliminate the $13 billion dollar unfunded liability. While the premium increase is said to average around 2% that is an average, with some employers getting no increase and many getting as high as 20% Motor Vehicle Fabric Accessories, 17.5% Homes for Nursing Care, 9.0% Masonry, 13.1% Tobacco and Mushroom Farms, 19.5% Poultry Farms and Agricultural and 13.5% for Motor Vehicle Assembly.

4. ‘Interim’ Work Reintegration Policies (the in-house LMR, which really means “in the employers” house LMR) are effective in a few weeks on December 1, 2010. Charlebois Associates will be hosting complimentary information seminars for employers in Windsor, London and Toronto in January 2011. Send us an email if you would like further information on these sessions.