Workplace Safety and Insurance Conference

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Event date: 
Friday, October 26, 2018 (All day)
Name of Organization: 
Lancaster House
Location: 
Toronto

Workplace Safety and Insurance Conference

October 26, 2018

Sheraton Centre Toronto Hotel

Conference Day - Friday, October 26, 2018

Conference Co-Chairs

Madeleine Loewenberg Employer Counsel, Loewenberg Psarris Workplace Law

Ken Stuebing Union Counsel, Caley Wray

Conference Advisory Committee

Traudi McDonald, Employer Consultant and Paralegal

Sean Ryan Vice-Chair, Workplace Safety and Insurance Appeals Tribunal (WSIAT)

Ivana Petricone Staff Lawyer, Industrial Accident Victims' Group of Ontario (IAVGO)

Daryl Seupersad Employer Counsel, Sherrard Kuzz

Brendan McCutchen Worker/Union Counsel, Cavalluzzo

Registration and Breakfast 8:00 AM - 9:00 AM 

Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM 

Panel 1

Getting It Right? A look at the WSIB's new approach to chronic mental stress

9:10 AM - 10:25 AM 

* Panelists to be announced

PANEL SUMMARY

For several years, workers who suffered from chronic mental stress injuries had their claims rejected by the WSIB, even after the WSIAT ruled that denying entitlement for such claims violated the equality guarantees under section 15 of the Charter of Rights. Now that benefit coverage has been extended with the passage of Bill 127, the Stronger, Healthier Ontario Act, the WSIB has revised its approach to adjudicating these cases. However, many questions remain on how the policy will be applied in practice. In this session, experienced practitioners and a WSIAT Vice-Chair will help you navigate the changes to this policy. Issues to be addressed include:

  • Establishing entitlement: What are the criteria that must be satisfied in order to establish entitlement to benefits for chronic mental stress? Does the Board provide any guidance on how it determines whether a stressor qualifies as being "excessive in intensity and/or duration?" How does the WSIB determine whether the stressor was the predominant cause of the mental stress injury? What criteria does the Board use to determine whether a job involves a high degree of routine stress?
  • Evidentiary issues: What information will the WSIB request in order to determine the predominant cause of a mental stress injury? Will it ask for evidence relating to non-work-related stressors? When should this evidence be provided? What type of evidence is required to establish entitlement where a worker is consistently exposed to routine stress or works in a job with a high degree of routine stress?
  • Bullying and harassment: How does the WSIB differentiate between normal interpersonal conflicts and bullying and harassment? How does it distinguish legitimate management actions (that may be taken in an aggressive or insensitive manner) on one hand, and bullying/harassment, on the other? Since bullying and harassment may not be carried out in the open, how does the WSIB obtain and evaluate information that would establish that this conduct occurred?
  • Assessing and mitigating risk: What steps should employers take to reduce mental stress in the workplace? Should they conduct risk assessments to identify and limit workplace stressors? Are they required to provide suitable modified work that takes into account psychological restrictions? Is there anything that unions can do or any changes that they should advocate for to reduce the risk of chronic mental stress injuries?
  • Impacts of the policy: What is the status of the review of cases that have been sent back to the WSIB for reconsideration? Is there any recourse available for workers who received a final decision prior to January 1, 2018 or who missed the July 1, 2018 deadline to appeal? How does the new policy affect employees' right to sue for damages? Can they still pursue remedies through grievance arbitration or before a human rights tribunal?

 BREAK (with refreshments)     10:25 AM - 10:45 AM

Panel 2

Current and Critical: The year's most important compensation cases

10:45 AM - 12:00 PM 

* Panelists to be announced

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. Cases to be addressed will include the Supreme Court's decision in Quebec (Commission des normes, de l'équité, de la santé et de la sécurité du travail) v. Caron, regarding Quebec employers' duty to accommodate injured employees up to the point of undue hardship and the implications of the ruling for Ontario employers and workers. 

NETWORKING LUNCH                      12:00 PM - 1:00 PM

Panel 3

Every Move You Make, Every Step You Take: The uses and limits of surveillance in WSIB cases

1:00 PM - 2:15 PM 

* Panelists to be announced

PANEL SUMMARY

In 2015, in response to human rights concerns, the WSIB created new internal guidelines for the use of covert surveillance of injured workers. However, experts contend that the new guidelines remain problematic as they unfairly target immigrants, refugees, and those with chronic pain. In addition to surveillance by the WSIB, injured workers may also be subject to surreptitious surveillance by their employers. This session will examine the circumstances in which covert surveillance is – and should be – used, and explain how to address such evidence at WSIAT hearings. Topics to be addressed include:

  • WSIB policy and practice: What criteria does the WSIB apply in determining whether to conduct surveillance? Do they adequately respect privacy and human rights? What surveillance methods are used by the Board?
  • Use and access to footage: What are possible uses that the WSIB may make of surveillance footage? Can the WSIB give surveillance footage to an employer? Can the employer rely on WSIB surveillance to discipline employees? When and how can an individual subject to WSIB surveillance gain access to the footage?
  • Admissibility: What test does the WSIAT apply in determining whether to admit surveillance evidence? What role, if any, do privacy concerns play? How does the tribunal's approach compare to that taken by courts and arbitrators? What might explain any differences in approaches? Which approach is preferable, and why?
  • Weight: How can the length of and date on which surveillance is conducted affect the weight the tribunal affords the evidence? What evidence may be adduced to refute surveillance that appears to show a worker engaging in activities contrary to medical restrictions? Are there any limitations inherent in surveillance technology itself that could affect the weight given to surveillance evidence?

 BREAK (with refreshments)                                             2:15 PM - 2:30 PM 

Panel 4

Pre-Existing Conditions: An analysis of recent policy changes at the WSIB

2:30 PM - 3:45 PM 

* Panelists to be announced

PANEL SUMMARY

In December 2017, the WSIB announced a major change in its treatment of pre-existing conditions when awarding non-economic loss benefits (NEL) for permanent impairment. Facing allegations that the Board reduced its unfunded liability on the backs of injured workers and a proposed class action alleging the existence of a "secret policy" that broadened the interpretation of "pre-existing impairment" to include asymptomatic conditions in an effort to reduce non-economic loss awards, the WSIB clarified its approach, and announced that it would review 4,500 decisions dating back to 2012. The clarification is anything but straightforward, and its practical impacts remain to be seen. In this session, experienced counsel will explain the Board's new approach to the treatment of pre-existing conditions, and provide their perspectives on its impacts, discussing matters such as:

  • Impetus for change: How did the Board previously account for a pre-existing condition when evaluating the degree of permanent impairment? Why did the WSIB broaden its interpretation of what constitutes a pre-existing condition to include asymptomatic conditions when calculating the degree of permanent impairment? How did this impact on non-economic loss benefit awards? Did the WSIAT tend to uphold the WSIB's awards, or did workers usually succeed in their appeals?
  • New interpretation of policy: How does the policy clarification memo change the interpretation of the Pre-Existing Conditions and Determining the Degree of Permanent Impairment operational policies? How does the WSIB determine that a condition is "measurable" or "non-measurable?" What evidence does it consider in making this determination? How is the policy clarification applied in practice? Does it essentially mean that a non-economic loss award will no longer be reduced because of an asymptomatic pre-existing condition?
  • Impact of changes: Do worker representatives believe that the revised interpretation will reduce the number of workers whose benefits are decreased due to asymptomatic pre-existing conditions? Does the policy clarification memo go far enough in addressing the concerns raised in the class action lawsuit or by members of the injured workers community? What is the perspective of the employer community?
  • Status of review: What is the current status of the review of cases between January 2012 and December 15, 2017 where there was a reduction of benefits due to an asymptomatic pre-existing condition? Are there any indications that awards are being adjusted as a result of these reviews?

 CONFERENCE ENDS               3:45 PM