Law Times

Page 10 February 29, 2016 • Law Times www.lawtimesnews.com OFL alleges medical advice ignored and injured workers denied claims WSIB faced with potential ombudsman's investigation BY JUDY VAN RHIJN For Law Times T he new chief executive of- ficer of the Workers Safety Insurance Board may have his hands full in his new job, if the Ontario ombudsman decides to launch an investigation into an allegedly systemic problem at the government agency. The Ontario Federation of Labour recently requested the Ontario ombudsman investigate an allegedly systemic problem at the WSIB, the ignoring of medi- cal advice in order to deny the claims of injured workers. In November 2015, the OFL and the Ontario Network of In- jured Workers' Groups released a report called "Prescription Over- Ruled: Report on How Ontario's Workplace Safety and Insurance Board Systematically Ignores the Advice of Medical Professionals." The report alleges injured pa- tients are being re-victimized by the very system that is mandated to compensate and protect them. It also alleges the WSIB fails to heed medical advice regard- ing readiness to return to work, provides insufficient treatment, blames "pre-existing" conditions for ongoing illness, and uses in- dependent medical reviews that proclaim patients to be healed, despite the evidence of treating practitioners. Laurie Hardwick, director of organization services at the OFL, says a complaint brought to her by a Sudbury doctor in July 2015 was a crucial step. The doc- tor was one of five medical prac- titioners who complained to the OFL that the WSIB was routinely ignoring their medical opinions on injured workers. "We reached out and now have 20 physicians from across the province who are supporting the complaint," says Hardwick. The "Prescription Over- Ruled" report released in 2015 included four case histories. But the response to the report by oth- er injured workers was so enthu- siastic that the submission Hard- wick hand-delivered to the On- tario ombudsman two months later contained 45 case histories. "Since then my phone has not stopped ringing," says Hardwick. The OFL was initially advised that it would take three to four weeks to receive a decision. But that timeline has shifted. With the announcement of the appointment of a new ombuds- man to replace the acting interim ombudsman in April, Hardwick and her colleagues at the OFL are concerned that action on the complaint might be delayed. However, another ray of hope has presented itself in the form of new WSIB president and CEO Tom Teahen, who has already held several meetings on the is- sue. Teahen is a former labour lawyer who was also the WSIB's chief corporate services officer from 2010 to 2013, before taking a secondment to fill the position of chief of staff to Ontario's premier. Teahen has said publicly that the allegations are concerning because they suggest a systemic problem. In a media interview in February, he said that if there is a systemic problem, he wants to find out and get to the bottom of it to ensure the integrity of the system for the workers, the em- ployers, and for the government. Aidan Macdonald, a commu- nity legal worker at the Injured Workers' Consultants Commu- nity Legal Clinic, was co-author of the "Prescription Over-Ruled" report with David Newberry, an- other community legal worker at the IWC. Macdonald says the time frame of the bulk of complaints is the last five or six years, which equates to the period in which the WSIB rededicated itself to support workers getting back to work. Instead of outsourcing the return-to-work function, it creat- ed positions for more than 200 re- turn-to-work specialists and, as a result, claims that 92% of injured workers are now back at work without loss of earning within 12 months, an increase from 80%. This startling increase in workers' rate of recovery has been called "alarming" by advo- cates who claim medical advice is being ignored to force people back to work. "The crux of the problem, es- pecially in the last five years, is that the WSIB has been operat- ing more to protect its financial position than to protect work- ers," says Macdonald. "That's what needs to change. It needs to go back to its original mandate to give injured workers the support, dignity, and care they deserve. The WSIB needs to shift away from austerity measures, back to compensation." Macdonald says that this should occur regardless of the WSIB's financial position. "From all reports, they are ahead of schedule in reducing the unfunded liability by many years, but even if the financial position were precarious, the solution cannot be cutting ben- efits," says Macdonald. "They need to tap into other levers that can be used. People are still get- ting hurt. People still need help." Macdonald is highly skeptical of the rate at which people are re- turning to work. "The board comes out with statistics that people are healing faster and getting back to work faster. They don't track return to work, they only track people deemed to be fit to return to work," says Macdonald. "It's like they are sending them to a special clinic, waving a wand and they are healed magically. We need to get behind what the statistics represent." This is borne out by the num- ber of doctors who are willing to go public with their concerns, he says. "That's how it all started," says Macdonald, "a group of doc- tors who see that the mental and physical health of their clients is being made worse by decisions of the board, which is what we've been seeing in our own case files." Quite separate to the OFL's and IWC's efforts is the case of Dr. Brenda Steinnagel. Steinnagel filed a lawsuit in September 2015 against the clinic where she worked, as well as the WSIB, alleging that she was fired because she refused to change her medical opinion to the one that the WSIB wanted to hear. Her statement of claim alleges that the WSIB and the clinic had an agreement to procure false medical reports from medical consultants for the unlawful pur- pose of committing a fraud upon the public. In October 2015, the board brought a motion to strike almost all of the statement of claim and a decision is expected soon. The Steinnagel story came out when Macdonald and Newberry were in the initial stages of work- ing on their report. "It reinforces what we have been working on separately," says Mac- donald. "This is part of this equa- tion of workers being magically declared fit. A lot is coming from these clinics that have big money contracts. There are financial in- centives to keep the contracts so they are producing reports that say what the WSIB wants to hear, or not saying what they don`t want to hear, such as 'the worker is not fit to return to work' or 'it's a perma- nent restriction.'" Macdonald is also aware of the change of leadership at the WSIB and at the ombudsman's office. "Any time there is a change in leadership, there can be a change in direction. We have tried to raise this particular problem with senior management at the WSIB before and not got any- where," he says. "It's such a sys- temic problem, we can't just trust to new leadership to address it. We hope they will, but this is why the ombudsman exists." LT FOCUS This is more than a phone book. It is your instant connection to Canada's legal network. With Canadian Law List 2016 you have access to: • an up-to-date alphabetical listing of more than 80,000 barristers, solicitors BOE2VFCFDOPUBSJFTDPSQPSBUFDPVOTFMMBXȮSNTBOEKVEHFTBDSPTT$BOBEB • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important MBXSFMBUFEPGȮDFT THE LATEST CONTACT INFORMATION IN A USER-FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • lBTUOBNFȮSTUJEFOUJȮDBUJPOJOUIFGFEFSBMBOEQSPWJODJBMMJTUJOHT • separate section of corporate law departments for more than 1,250 companies • pSPGFTTJPOBMDBSETPGQSPNJOFOU$BOBEJBOMBXȮSNT • International Agency Referral Cards AREAS OF PRACTICE AND ENHANCED LISTING INDEX The enhanced listing index is displayed in bold type with detailed practice information. It also: • lJTUTȮSNTBOEMBXZFSTUIBUIBWFFYQBOEFEUIFJSQSBDUJDFJOGPSNBUJPOJOUIFJS provincial listing • is organized by areas of practice by province, city and page reference in their provincial listings Hardbound • Published February each year • L88804-765 • On subscription $169* • One time purchase $188* Multiple copy discounts available * Plus shipping/handling and applicable taxes ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit www.carswell.com KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS Untitled-2 1 2016-01-25 12:35 PM The crux of the problem . . . is that the WSIB has been operating more to protect its financial position than to protect workers. Aidan Macdonald Check out lawtimesnews.com for insight from our regular online columnists Monica Goyal discusses the latest gadgets and trends in legal technology in Bits & Bytes

• Cover