Law Times

PAGE 12 FOCUS OctOber 17, 2011 • Law times WSIB cracks down on re-entry plans External providers nixed, policies changed as insurer gets aggressive BY JUDY VAN RHIJN For Law Times market re-entry plans and as- sessments with a new work reintegration T program he Workplace Safety and Insurance Board's replacement of labour has changed the playing fi eld for employers and employees. Since July 15, six new oper- ational policies and a change to the work reintegration policy have foreshadowed an aggres- sive new approach to returning people to their pre-accident employment. After 12 years of the self- reliance model that gave re- sponsibility for returning to work to the workplace parties and engaged external agencies to manage and implement re- training programs, the WSIB has taken back the case man- agement role. Th e board has acknowledged that the retrain- ing programs didn't produce the desired results in terms of injured worker employment or earnings restoration. As a result, it began delivering case management services inter- nally in December 2010 and phased out its use of external primary service providers in August 2011. Th e new vision is heavily fo- cused on maintaining the pre- accident employment relation- ship wherever possible and pro- viding eff ective and meaningful input and choice for workers. It expects employers to return the worker to the pre-injury job or a comparable position with accommodation or fi nd alternative suitable work. Th e hope is that by exercising direct oversight of the providers who are delivering training and edu- cation services, there will be an improvement in program qual- ity, effi ciency, and eff ectiveness. Liz Kosmidis, an associate at Hicks Morley Hamilton Stewart Storie LLP who was previously in-house counsel at the WSIB for 16 years, notes there were problems with the previous system. "Th ere were certainly a lot of problems with the way the process worked," she says. "Workers didn't feel listened to. Employers felt totally out of the picture with no say in a matter that was potentially costly to them. Statistics show it wasn't very successful at get- ting workers back to work in a meaningful job where they could earn the amount they earned before the accident. Th at's key. Now there's a recog- nition that maybe the outside service providers had their own interests and the WSIB can do it better in-house." Stephen Roberts, a partner with Windsor, Ont.-based Mc- Tague Law Firm LLP, believes the board has recognized that a hands-off approach wasn't successful. "Frankly, the exter- nal service providers did not do a good job," he says. "Only 25 per cent of workers ended up in successful employment. Th e [external service provid- ers] charged a lot to monitor Injured employees also have responsibilities in finding ways to return to work, says Sharaf Sultan. the workers and sent them to substandard educational insti- tutions." Roberts notes that comple- tion rates had declined to 60 per cent and that 77 per cent of workers in labour market re-entry had re-employment rights but didn't return to work with the pre-injury employer. "What we see now is the WSIB really focused on the original employer," says Sharaf Sultan of Heenan Blaikie LLP. "Th e hope is that by getting more people back to their pre- accident employment, it will reduce the need to reintegrate them into the general market. I am not sure how it will play out in practice." Sultan is concerned that the new model may not represent an eff ective or balanced approach. "It's natural for management to make the assumption that employers are not interested in having injured employees come back," he says. "It is challenging for employers to accommodate disability, but the underlying theory that employers have not been making enough eff ort may be wrong. Most employers in good faith do try to accom- modate employees and their disabilities. Are employers re- ally the problem? Perhaps they should focus more on what re- sponsibilities injured employees have and not overemphasize the employer's role." Th ere are now heavy penal- ties for breach of re-employ- ment obligations and for em- ployers that don't co-operate. Fourteen days from a written notice requiring greater co- operation, the employer will become responsible for 100 per cent of the worker's wage loss benefi ts as well as the costs of work transition services. Th e WSIB has also increased the amount of time that an injury claim may have an eff ect on premiums by one year. As Roberts new experimental explains, the experience rating program operates as a fi nancial incentive for employ- ers to bring employees back to work faster and fi nd modifi ed duties for them. "After Sept. 30 of the third year, there are no fi nancial consequences if they don't accommodate. In Octo- ber, we see them saying, 'We don't have any suitable work.' By simply changing it from three years to four years, it is hoped it will make it more dif- fi cult for an employer to wash its hands of a worker. Th e work reintegration process should have run its course by then. Th e worker will have come through work transition and found per- manent employment." But Sultan isn't sure that employers will see the change Clients and Counsel who know Insurance, know us... So should you! as an incentive but rather as a penalty. "Four years is a long time for an injury to have an impact on an employer's costs. It's almost like car insurance or a credit rating. You have to wait a number of years before it's cleared off your record. I wonder whether in theory em- ployers need to be held more responsible. It will require them to be a lot more engaged, which is potentially positive, but they will also be more en- gaged in appeals." Sultan stresses that the en- tire accommodation process is about balance. "It's very clear from any legal decisions you look at that accommodation is a two-way road. Th e employee has just as much responsibility to play ball and come up with a solution. Th at gets forgotten and the employer is almost left to fi gure it out on its own." Kosmidis is also concerned about how the WSIB will carry out its more active role in the accommodation forum. "Th ey are combining a lot of legal principles like the duty to ac- commodate and workplace party co-operation," she says. "WSIB employees aren't legally trained. Th ey don't have a good concept of what the duty to ac- commodate involves." Kosmidis gives an example of a client who resigned 10 years ago but had a recurrence of the injury. Th e board went to the accident employer and said it had to take the worker back. "Th ere is a defi nite need for more training at the board level and some kind of resource area they access to guide them on the duty to accommodate," she says. Sultan, too, says the duty to accommodate involves a com- plicated process requiring on- going monitoring. "It will re- quire a balanced approach and sensitivity to very fact-specifi c circumstances," he says. E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com Call us or visit our website for more information. Vlit_LT_Mar17_08.indd 1 Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. Gilbertson_LT_Oct19_09.indd 1 www.lawtimesnews.com 10/13/09 3:15:03 PM JobsInLaw 1/8 pg 3X.indd 1 2/15/11 4:22:11 PM 3/13/08 11:55:47 AM

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