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Workplace Safety and Insurance Conference

 
 
 
 

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Friday, October 13, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 1


Taking the Pulse: The year's key compensation cases and what they mean for you

9:00 AM - 10:15 AM

Tara Ross
Worker Adviser
Ontario Office of the Worker Adviser
Jack Siegel
Workers' Compensation Counsel
Blaney McMurtry

Panel Summary

Seasoned counsel will review the most significant WSIAT and judicial review decisions delivered in the past year and explain the essential takeaways for workplace parties and their advocates.

BREAK (with refreshments)

10:15 AM - 10:30 AM

Friday, October 13, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 2


Assessing Pain: Is the response of the WSIB and WSIAT adequate?

10:30 AM - 12:00 PM

Dr. Angela Mailis
Director, Pain & Wellness Centre; Adjunct Clinical Professor, Department of Medicine, University of Toronto

Dr. Ellen MacEachen
Associate Professor and Associate Director, School of Public Health and Health Systems
University of Waterloo
Stephen Roberts
Employer Counsel
McTague Law Firm
Maryth Yachnin
Worker Counsel
Industrial Accident Victims' Group of Ontario

Panel Summary

The experience of pain can have a debilitating impact on an individual's job, lifestyle, relationships, and independence. However, as pain is a subjective and personal experience, it is often difficult to communicate its exact quality and intensity to other people. As patients' self-reports provide the most common measure of the experience, healthcare practitioners may face difficulties when seeking to diagnose and evaluate an individual's experience of pain. For the same reason, the assessment of pain poses a significant challenge for workers' compensation regimes, which must ensure workers in pain are fairly compensated and accommodated even in the absence of objective evidence of injury. This multidisciplinary panel will discuss the meaning and nature of pain and how it is assessed by the WSIB and WSIAT, including:

  • How is "pain" defined by healthcare professionals? What causes pain? What is the difference between acute and chronic pain?
  • What methodology is used by healthcare professionals to assess pain? Will an assessment of pain differ depending on a medical professional's background and specialties and/or the type of pain a worker is experiencing? What precautions, if any, do healthcare practitioners adopt to test the veracity of patients' self-reports of pain?
  • When will a healthcare professional recommend that an individual stop working as a result of pain? Are workers expected to tolerate a certain level of pain on the job or upon return-to-work following illness or injury?
  • What evidence of pain does the WSIB require for the purpose of assessing loss of earnings benefits and return-to-work opportunities? What supporting evidence is required to demonstrate a worker's entitlement for chronic pain disability?
  • Does the WSIB's approach to the assessment of pain differ from that of the WSIAT? If so, what are the primary differences in approach?
  • What human rights and privacy concerns have been raised regarding the treatment of pain under Ontario's workers' compensation regime? In light of such concerns, what best practices can parties adopt in response to an injured worker's experience of pain?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Friday, October 13, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Keynote Address


Keynote Address: The role of health-care providers in the workers' compensation system and the return-to-work process

1:00 PM - 1:30 PM

Dr. Agnieszka Kosny
Scientist and Chief Privacy Officer
Institute for Work & Health

Topics

Research around the world has shown that health-care providers have a key role in the return-to-work (RTW) process. However, pressure on consultation time, administrative challenges and limited knowledge about a patient's workplace can thwart meaningful engagement. In a two-year study conducted in four Canadian provinces, Dr. Agnieszka Kosny focused on the experiences of health-care providers within the workers' compensation system and their role in the RTW process. She shares her findings in this keynote address.

Friday, October 13, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 3


Slaying the Minotaur: Expert tips on navigating the WSIB system

1:35 PM - 2:35 PM

Ryan Conlin
Employer Counsel
Stringer Management Lawyers
Antony Singleton
Worker Counsel
The Law Office of Antony Singleton

Panel Summary

The WSIB system is notoriously complex. Injured workers are often unaware that they are not receiving the benefits to which they are entitled because they do not know how the system works or because the WSIB has not explained the basis of its decisions or calculations. Employers also often find themselves in the dark regarding the calculation of experience ratings and the reasons for WSIB decisions. Even experienced advocates can sometimes feel like they are wandering through a labyrinth, eager to obtain results for those they represent, but uncertain of what direction to take. In this session, two of the top lawyers practising WSIB law will provide practical tips for resolving common but intractable problems that vex injured workers and employers alike. Specific issues to be addressed include:

Injured worker concerns such as:

  • Incorrect calculations of short-term or long-term average earnings and application of the incorrect net exemption code in calculating net earnings
  • Termination of loss of earnings (LOE) payments upon a worker's return to full-time modified work without a determination of whether there is a difference between pre-injury net average earnings and post-injury net earnings
  • Determinations of LOE without application of WSIB policies on LOE during vacations
  • Lack of a decision confirming that a worker has a permanent impairment and lack of a non-economic loss (NEL) award despite notations in the case manager's memos that the worker does have a permanent impairment
  • Demonstrable errors in NEL assessments
  • Following a ruling on initial entitlement, a lack of rulings on additional areas of entitlement as the worker's diagnosis develops or is clarified
  • Failure of the WSIB to apply relevant provisions of operational policies or to explain why it believes policies do not apply in a worker's case
  • Prospective closure of a worker's file while he or she is still receiving compensable health care
  • Barriers to entitlement to drug benefits

Employer concerns such as:

  • Understanding how an experience rating (NEER or CAD-7) calculation was made
  • Classification of small sub-contractors as "workers"
  • Assignment to arguably inappropriate rate groups
  • Problematic advice from WSIB case managers indicating that it is appropriate to dismiss a worker
  • Failure to implement the results of successful employer appeals or other cost adjustments on an employer's cost statement
  • Ineffective return-to-work meetings that result from the return-to-work specialist's lack of knowledge regarding the history of the file

Administrative problems that frustrate both employers and injured workers, such as:

  • WSIB's failure to grant access to claim files
  • Case managers who do not read or respond to correspondence despite repeated follow-up communications

BREAK (with refreshments)

2:35 PM - 2:50 PM

Friday, October 13, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 4


Suitable Modified Work: Applying the WSIA and Human Rights Code criteria

2:50 PM - 4:15 PM

Dr. Pravesh Jugnundan
Family and Occupational Health Physician

Garth Dee
Vice-Chair
Workplace Safety and Insurance Appeals Tribunal
Mireille Giroux
Union Counsel
Koskie Minsky
Samantha Seabrook
Employer Counsel
Hicks Morley

Panel Summary

Following a work-related illness or injury, workplace parties have an obligation under workers' compensation and human rights legislation to accommodate injured workers with suitable modified work. However, identifying suitable work can prove to be a complex and multifaceted inquiry. In this panel, legal and medical experts will discuss the various factors considered by the WSIB and the WSIAT when determining whether assigned tasks constitute suitable modified work and identify best practices parties can adopt to comply with their legal obligations, including:

  • Under workers' compensation and human rights law, what obligations do workplace parties have in the work reintegration process following illness or injury? How is "suitable work" defined in WSIB policy?
  • How do healthcare professionals assess an individual's functional abilities following illness or injury? What role should an ergonomist or occupational health therapist play in evaluating suitable modified work? What best practices should workplace parties adopt to ensure modified work is consistent with an injured worker's functional abilities?
  • What meaning have terms such as "safe" and "productive" been assigned by WSIB policy in the context of identifying suitable modified work? What factors should workplace parties consider in determining whether available work is safe and suitable?
  • When is work considered "available" for the purposes of providing an injured worker with suitable modified work? How should parties respond if a proposed accommodation measure interferes with collective agreement rights?
  • When, if ever, does a tense or poisoned working relationship excuse an individual from accepting an offer of suitable modified work from the employer?
  • How should parties respond if suitable modified work raises or conflicts with other accommodation needs in the workplace (e.g. family status obligations, non-compensable injuries, etc.)?
  • Do the WSIB and the WSIAT take different considerations into account when evaluating whether a worker has been provided with suitable modified work? If so, how do these approaches differ?

CONFERENCE ENDS

4:15 PM

Keynote Speakers


Wednesday, October 11, 2017


Effective Anti-Harassment Programs and Investigations: An interactive workshop

9:00 AM - 4:00 PM

Meghan Ferguson
Lawyer and Workplace Investigator

Andréane Chénier
National Representative, Health and Safety
Canadian Union of Public Employees
John Illingworth
Employer Counsel
Ogletree Deakins

Workshop Summary

The effects of violence and harassment in a workplace can be devastating, not only for the immediate targets of this aggressive behaviour but also for co-workers, other bystanders, and workplace morale. In recent years, many Canadian jurisdictions have sought to strengthen their health and safety laws in an effort to combat this threat to health and safety. For example, in Ontario, the passage of Bill 132 and amendments to the Occupational Health and Safety Act have imposed new obligations on employers with respect to harassment policies, programs, and investigations. In this workshop, experienced counsel will review Ontario and federal requirements for addressing workplace violence and harassment and advance best practices for creating a safe work environment for all employees.

Working through interactive exercises and realistic scenarios with the guidance of experienced investigators and counsel, participants will gain the skills and knowledge to:

  • Draft workplace violence and harassment policies in compliance with provincial and federal law
  • Develop and maintain suitable violence and harassment programs
  • Communicate policies, programs, and expected behaviour to employees
  • Conduct fair and appropriate investigations
  • Prepare credible and properly structured investigation reports
  • Identify the root cause(s) of an incident of violence or harassment in the workplace and when to update policies and programs in response

Please note: This event may be eligible for CHSC CE Maintenance Points.



Wednesday, October 11, 2017


Winning Cases at the WSIAT: A hands-on tutorial with the experts

9:00 AM - 4:00 PM

Sean Ryan
Vice-Chair
Workplace Safety and Insurance Appeals Tribunal
Angus Patterson
Vice-Chair
Workplace Safety and Insurance Appeals Tribunal
Mary Christie
Employer Panel Member
Workplace Safety and Insurance Appeals Tribunal
Mary Ferrari
Worker Panel Member
Workplace Safety and Insurance Appeals Tribunal
Traudi McDonald
Employer Consultant and Paralegal

Ivana Petricone
Staff Lawyer
Industrial Accident Victims' Group of Ontario

Workshop Summary

There are no "do-overs" for advocates who don't present their best case at the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the final level of appeal for both workers and employers disputing workplace safety and insurance decisions in Ontario. Given the finality of the WSIAT's decisions and the significance of those decisions to workers and employers, it behooves advocates to present polished, convincing arguments supported by appropriate evidence every time they appear before the Tribunal. Employer and worker representatives also require effective negotiation skills to make the best use of the WSIAT's new mediation procedures.

Working through interactive exercises and realistic scenarios with the guidance of experienced advocates and adjudicators, participants will gain the skills and knowledge to:

  • Craft an effective advocacy strategy at all stages of an appeal, from receipt of a file to the end of the hearing
  • Make effective use of WSIAT's new mediation procedures
  • Gather and present persuasive evidence
  • Present compelling opening and closing statements
  • Effectively cross-examine witnesses
  • Deal with weaknesses in the case
  • Comply with professional obligations
  • Review WSIAT decisions for errors that warrant a request for reconsideration or an application for judicial review

Please note: This event may be eligible for CHSC CE Maintenance Points.



CPD


Click here to find out more information regarding CPD and the hour requirements in your province.

This event may be eligible for CHSC CE Maintenance Points.