Office of the Employer Adviser

	Director’s Message
	New WSIB President and CEO on board
	WSIB consultation on draft policies for mandatory coverage in construction and for e-clearance certificates for ALL employers who use them
	Changes to the WSIB’s Workwell policy allow audits to be triggered using data from an employer’s smaller rate group
	Ontario workplace safety system to be reviewed
	WSIB announces new “Narcotic strategy”
	WSIB practice of awarding LOE to retired workers earning no wages has ceased
	Divisional Court decision upholds WSIAT decision in favour of a worker injured while travelling for an emergency call
	WSIB Ergonomist positions have been eliminated
	SIEF Specialty Team issuing “21-day confirmation letters”
	2010 WSIB benefit rates increased
	WSIB released 2009 third quarter report
	12 HSAs have merged to create four new entities
	Correction: WSIB revenue decisions are not referred to the Appeals Specialty Team
	OEA helps employer obtain a retroactive Merit Adjusted Premium (MAP) Plan adjustment

Director’s Message

Welcome to our first OEA Update for 2010. The year promises to be a busy one. The WSIB is currently undertaking two major public consultations - one on joint health and safety committees and a second on draft policies to operationalize mandatory coverage in the construction industry. The Minister of Labour recently announced an Expert Panel will review the province's occupational health and safety system, which may impact the various prevention activities of the WSIB. This year will also see the implementation of a new electronic clearance certificate system, and perhaps more fine tuning of the Board's new service delivery model.

The OEA will keep you informed of developments on these fronts, and any new initiatives as we hear about them.

This year will also see the OEA continue with its outreach activities to let all Ontario employers know about our services, and we hope to have our new website up in the very near future.

I hope you find this edition of the OEA Update informative. If you have any comments or concerns, please let me know personally at: michael.zacks@ontario.ca.

New WSIB President and CEO on board

David Marshall assumed his new role as President and CEO of the WSIB on January 25, 2010. Mr. Marshall is a former international banker, diplomat and senior Canadian government executive. He has held many key federal government positions including Assistant Auditor General and Deputy Receiver General for Canada. He has also held senior roles in the Toronto and New York banking sectors. He is a certified general accountant. The government’s press release is at: http://www.news.ontario.ca/mol/en/2009/12/ontario-nominates-new-wsib-president.html.

WSIB consultation on draft policies for mandatory coverage in construction and for e-clearance certificates for ALL employers who use them

The WSIB is consulting on draft policies to implement Bill 119, which extends mandatory coverage in the construction industry. The consultation will end on March 31, 2010, and the draft policies can be found here. The policies flesh out the criteria for independent operator status, executive officers exempt from coverage, a proposal for a new executive officer classification unit, and the new clearance certificate system.

Although the offences attached to clearance certificate breaches come into effect in 2012, the proposed new electronic clearance certificate model is scheduled to become operational later this year. Clearance certificate validity will be extended from 60 to 90 days, and contractors will be able to access them on line. For more information see the draft policy.

Changes to the WSIB’s Workwell policy allow audits to be triggered using data from an employer’s smaller rate group

The WSIB revised OPM Doc. No. 13-01-02, “Workwell Program” on January 5, 2010. A Workwell audit of an employer’s business can now be triggered by health and safety / injury statistics pertaining to any of an employer’s rate groups, including the employer’s smaller rate group, in cases where the employer’s business activities involve more than one rate group:

When reviewing and assessing injury frequency and/or injury cost information, the WSIB adopts a comparative approach by evaluating an employer's record relative to the record of other employers of a similar size and industry. This comparative approach is applicable to any and/or all of an employer's rate groups; all of an employer's business activities are subject to evaluation. [Emphasis added.]

These changes apply to all Workwell evaluations with a notification date on or after January 1, 2010. The revised WSIB policy is at: http://www.wsib.on.ca/wsib/wopm.nsf/Public/130102.

Ontario workplace safety system to be reviewed

The Ontario government announced that University of Toronto professor and former civil servant Tony Dean has been appointed Chair of an Expert Advisory Panel that will conduct a comprehensive review of Ontario’s occupational health and safety prevention and enforcement system, which includes the Ministry of Labour, the WSIB and the Health and Safety Associations (HSAs).

The panel will include safety experts from labour groups, employers and academic institutions that will review Ontario’s current practices as well as best practices from around the world to recommend options for structural, operational and policy improvements to improve the health and safety of Ontario workers. The issues to be addressed include:

· entry-level safety training and the continuum of safety practices

· how the underground economy impacts health and safety practices, and

· the effectiveness of existing legislation.

The expert panel will provide the Minister of Labour with its recommendations in Fall 2010. The MOL’s news release is at: http://www.news.ontario.ca/mol/en/2010/01/review-of-workplace-safety-system-in-ontario.html.

WSIB announces new “Narcotic strategy”

The WSIB has changed the way it manages claims for injured / ill workers who have been prescribed narcotics (opioids) for non-cancer pain. For new injuries or recurrences starting in mid-February 2010, the WSIB will initially allow prescriptions for short-acting narcotics for a maximum of 12 weeks, during which time long-acting drugs will not be approved. WSIB clinical staff will review the worker’s case after 12 weeks of ongoing narcotic use to determine whether ongoing narcotic use is warranted.

Workers with serious injuries that are managed by the Serious Injury Program and workers with occupational diseases are excluded from this new approach.

According to the WSIB:

40% more workers have been prescribed narcotics compared to 10 years ago
there has been a 100% increase in the number of prescriptions for narcotics over the past 10 years, and
dosages prescribed by physicians have also increased since 2006.

For more information and the WSIB’s Q&A on this issue, go to the WSIB’s web site at: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/WorkersNarcoticsStrategy.

WSIB practice of awarding LOE to retired workers earning no wages has ceased

A group of Schedule 2 employers submitted a complaint to the WSIB Fairness Commission regarding the WSIB’s practice of awarding loss of earnings (LOE) benefits to workers who are retired at the time of the claim, and earning no wages. The WSIB’s practice was to provide these workers with benefits for two years.

As of December 7, 2009, the WSIB has stopped this practice for new claims entering the system. Claims that are already in the system will continue to receive the two years of LOE and will need to be appealed. There has not yet been a formal statement from the WSIB regarding this procedural change.

Divisional Court decision upholds WSIAT decision in favour of a worker injured while travelling for an emergency call

A recent Divisional Court decision called Windsor Utilities Commission v. Skara upheld a WSIAT decision in favour of the worker. Briefly, the worker was injured in a motor vehicle accident on his way home after returning a backhoe to the employer’s premises. The worker returned home late and fell asleep at the wheel. The issue was whether the worker was on an emergency call under the WSIB's “Travelling” policy, OPM Doc. No. 15-03-05 at http://www.wsib.on.ca/wsib/wopm.nsf/Public/150305:

Responding to an emergency call

Workers travelling to answer an emergency call from the employer, requiring immediate action on the worker's part, are in the course of their employment.

Coverage starts from the time the telephone call is received, and while travelling by reasonable and direct route to the employer's premises or work site from the time and point of departure.

Coverage also applies on the return trip to the worker's own property or the point of departure.

The WSIAT overturned the WSIB’s decision denying benefits, and the employer sought judicial review after an unsuccessful reconsideration attempt.

The case is worth reading for the interesting and perhaps not uncommon fact situation that many public utilities or other public services face of having to call in workers who are off work but need to come to work to assist in an emergency situation.

The Divisional Court held that the WSIAT properly applied the Travelling policy as it was required to do under the legislation. The employer’s lawyer argued in court that the Travelling policy was in conflict with the Workplace Safety and Insurance Act, 1997. The court made it clear that this argument should be made at the WSIAT first.

The full decision is available on CanLii at: http://www.canlii.org/en/on/onscdc/doc/2009/2009canlii71720/2009canlii71720.html.

WSIB Ergonomist positions have been eliminated

The WSIB is no longer offering specialized ergonomic services. The 29 WSIB ergonomic specialist positions have been eliminated. Employers in a return to work dispute with an injured worker will need to retain a private sector Ergonomist and pay the cost. This may be a difficult option for smaller employers.

The WSIB’s new Health and Safety Community web page (http://www.wsib.on.ca/wsib/wsibsite.nsf/Public/HealthSafetyCommunity) lists the Association of Canadian Ergonomists as an “other” health and safety partner. While this association web site is directed towards its own members, it does include a directory of ergonomic consultants in the Ontario private sector: http://www.ace-ergocanada.ca/.

SIEF Specialty Team issuing “21-day confirmation letters”

The WSIB’s SIEF Specialty Team began issuing “21-day confirmation letters” on December 22, 2009 as part of its triage process to address the inventory of claims it has been reviewing since this team began its work on September 21, 2009. It is sending this form letter to employers in each case where a prior decision regarding SIEF was made by a Case Manager, reconsideration was requested by the employer, and the issue has since been transferred to the SIEF Specialty Team for reconsideration. If you receive one of these letters, you must respond to the letter within the stated time frame or your request for reconsideration / review will be deemed withdrawn.

2010 WSIB benefit rates increased

The 2010 Facts and Figures document is available here. As the government set a general indexing factor of 0.5% for 2010 WSIB benefits, and the CPI is 0.4%, all figures increased from 2009.

OPM Doc. No. 18-01-05 “Table of Rates” is at: http://www.wsib.on.ca/wsib/wopm.nsf/Public/180105. The following rates increased as of January 1, 2010: Personal Care Allowance, escort fee, Independent Living Allowance, Guide and Support Dog Allowance, and the burial rate. The fees for professional and non-professional witnesses have been removed from the Table of Rates and will be added to the WSIB’s “Appeal System Practice and Procedures Guide” at a future date. The Appeals Branch is now setting, administering and maintaining these fees.

The WSIB’s announcement is at: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/Policy2010BenefitRates.

WSIB released 2009 third quarter report

The WSIB’s 2009 Third Quarter Report to Stakeholders for the period ending September 30, 2009 is available on its web site here.

12 HSAs have merged to create four new entities

As of January 1, 2010, the 12 former individual Health and Safety Associations (HSAs) have been amalgamated to establish four new entities:

Workplace Safety North (formerly the Mines and Aggregates Safety and Health Association, the Ontario Forestry Safe Workplace Association, and the Pulp & Paper Health and Safety Association)
Health and Safety Association for Government Services (formerly the Education Safety Association of Ontario, the Municipal Health and Safety Association, and the Ontario Safety Association for Community and Healthcare)
Infrastructure Health and Safety Association (formerly the Construction Safety Association of Ontario, the Electrical & Utilities Safety Association, and the Transportation Health & Safety Association of Ontario), and
Safe Workplace Promotion Services Ontario (formerly the Farm Safety Association, the Industrial Accident Prevention Association, and the Ontario Service Safety Alliance).

While the WSIB has provided a contact information page on its web site at: http://www.wsib.on.ca/wsib/wsibsite.nsf/PublicPrint/HealthSafetyCommunity, it might be confusing in some cases to know which number to call as there appears to be contact information provided for each of the four new entities, in addition to the contact information for all 12 of the former HSAs. At the time of this writing, the OEA has been advised by each new HSA that employers should call the following numbers to obtain the health and safety information they need. For electronic information, you should continue to use the web sites for each of the 12 former associations until that information is merged onto the new web sites.

Workplace Safety North

Tel: 705-474-7233

Toll-free: 1-888-730-7821

www.workplacesafetynorth.ca

Health and Safety Association for Government Services

www.hsags.ca

Continue to use the telephone, fax and web addresses for the ESAO, the MHSAO and the OSACH for the time being.

Infrastructure Health and Safety Association

Tel: 905-625-0100

Toll-free: 1-800-263-5024

www.ihsa.ca

You can also continue to use the telephone, fax and web addresses used by the CSAO, the EUSA and the THSAO for the time being.

Safe Workplace Promotion Services Ontario

Continue to use the telephone, fax and web addresses for the FSA, the IAPA and the OSSA for the time being.

Correction: WSIB revenue decisions are not referred to the Appeals Specialty Team

The December 2009 issue of the OEA Update was distributed electronically on December 18, 2009. In that issue, we made mention of the WSIB’s new specialized team of Case Managers who would be implementing Appeals Resolution Officer (ARO) and WSIAT decisions. We reported that both entitlement and revenue decisions would now be going to this decentralized team rather than to the original decision maker. That is not correct, as revenue decisions will not be referred to the appeals specialty team. Unfortunately, the OEA was misinformed on this particular issue. We apologize for any confusion this has caused.

OEA helps employer obtain a retroactive Merit Adjusted Premium (MAP) Plan adjustment

The employer initially received 50% SIEF relief for a worker’s claim on April 28, 2008. Upon reconsideration, the Case Manager increased the SIEF relief to 75% on January 19, 2009. The employer then sought a retroactive experience rating adjustment under MAP. The employer stated that if the correct level of SIEF had been granted initially, the employer would not have been subject to an automatic 10% surcharge on its 2009 premium rate under MAP as its claim costs would not have exceeded the $5,000 threshold. The request for a retroactive adjustment was denied. The employer appealed this decision.

The ARO agreed that the employer should not be penalized for the time between the Case Manager granting the initial SIEF quantum and the final quantum. He found the length of time between the date the experience rating window closed (June 30, 2008) and the date the decision to increase the SIEF quantum was made (January 19, 2009) was “relatively short” and therefore met the criteria of an “exceptional circumstance” as outlined in “Appendix F – Guidelines for Retroactive Experience Rating Adjustments – Exceptional Circumstances” in the WSIB’s January 2008 “Appeal System Practice and Procedures” document (http://www.wsib.on.ca/wsib/wsibsite.nsf/LookupFiles/Downloadable FileAppealPP/$File/AppealsP&P.pdf):

Retroactive experience rating adjustments may be presented as a stand alone issue in appeal after SIEF relief has been decided.

As a result, it is important for decision-makers to have regard for the experience rating window when deciding SIEF cost relief to be applied.

However, there may be circumstances where retroactive adjustments to SIEF relief occur after the closure of the experience rating window.

Circumstances that may constitute “exceptional circumstances” include but are not limited to:

o whether the employer pursued SIEF cost relief within a reasonable period after the employer knew or ought to have known the worker’s recovery period was prolonged or enhanced by a pre-existing condition.

o Whether there was a delay in identifying a pre-existing condition.

o Whether undue delay in the decision-making process caused the decisions to fall outside the experience rating window.

o The length of time between the closure of the experience rating window and SIEF decision. It would be expected that discretion be extended in cases where the period is relatively short (i.e. less than six months).

The objection was allowed and the retroactive MAP adjustment was granted.

Last Modified: 10.02.2010

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