Prescription Over-Ruled: Report on How Ontario’s
Workplace Safety and Insurance Board Systematically Ignores the Advice of
Medical Professionals
November 5, 2015 • Ontario Federation of Labour (OFL)
& The Ontario Network of Injured Workers’ Groups (ONIWG)
The Ontario Federation of Labour (OFL) represents 54
unions and one million workers. It is Canada’s largest provincial labour
federation.
15 Gervais Drive, Suite 202, Toronto, Ontario M3C 1Y8
416-441-2731 • 1-800-668-9138 •
info@ofl.ca
TDD: 416-443-6305 • FAX: 416-441-1893
Prescription Over-Ruled:
Report on How Ontario’s Workplace Safety and Insurance
Board Systematically Ignores the Advice of Medical Professionals
Prescription Over-Ruled: Report on How Ontario’s
Workplace Safety and Insurance Board Systematically Ignores the Advice of
Medical Professionals
November 5, 2015 • Ontario Federation of Labour (OFL)
& The Ontario Network of Injured Workers’ Groups (ONIWG)
The Ontario Federation of Labour (OFL) represents 54
unions and one million workers. It is Canada’s largest provincial labour
federation.
15 Gervais Drive, Suite 202, Toronto, Ontario M3C 1Y8
416-441-2731 • 1-800-668-9138 •
info@ofl.ca
TDD: 416-443-6305 • FAX: 416-441-1893
This document was proudly produced with unionized
labour.
The contents of this report are opinions based on the
experience, input and narrative of health professionals, injured workers and
their advocates.
INTRODUCTION
In September of this year, Dr. Brenda
Steinnagel filed a lawsuit against her employer and the Workplace Safety and
Insurance Board (WSIB), alleging that she was fired by the clinic she worked
for at the behest of the WSIB, because she refused to change her medical
opinion to the one that the Board wanted to hear.
While her accusations are no doubt shocking
to the general public, for injured workers – as well as their advocates and
health care providers – the lawsuit confirms what has long been suspected: The
WSIB’s inappropriate regulation of medical care is hurting patients with work
injuries.[1]
Long before Dr. Steinnagel came forward
with her lawsuit, health care workers in this province were raising red flags
about the ways in which the province’s compensation system treats their
patients. Recently, more than a dozen concerned medical professionals
approached the Ontario Federation of Labour and the Ontario Network of Injured
Workers’ Groups to address mounting concerns with WSIB interference in medical
care. This report hopes to shed light on some of these concerns and their
implications for workers’ health.
The stories told in this report illustrate
some of the ways the WSIB’s management of medical care and medical evidence
harms patients. This includes failing to heed medical advice regarding
readiness to return to work, insufficient treatment, blaming ‘pre-existing’ conditions
for ongoing illness, or using independent medical reviews which proclaim
patients to be healed, despite the evidence of treating practitioners. When
these things happen, the injured patients find themselves re-victimized by the
very system that is mandated to compensate and protect them.
BACKGROUND
Ontario’s compensation system is mandated
to provide wage loss benefits and health care benefits to workers who are
injured on the job. By law, injured workers are barred from commencing lawsuits
for their work injuries and must instead seek benefits from the WSIB. Legally,
workers are entitled to treatment from the healthcare provider of their own
choosing. Section 33 of the Workplace Safety and Insurance Act states
that:
A worker who sustains an injury is entitled to such
health care as may be necessary, appropriate and sufficient as a result of the
injury and is entitled to make the initial choice of health professional for
the purposes of this section.[2]
The Act goes on to state that “the Board shall
pay for the worker’s health care.”[3]
When the Board refuses to cover health care
costs, one of two things happens. If the health care service is not funded by
OHIP, the cost is shifted to the injured worker, who must pay out of pocket if
possible. However, many patients who are unable to work as a result of their
injuries, are often unable to pay. If the worker cannot afford the treatment,
he or she simply goes without the needed prescription medication,
physiotherapy, psychotherapy, health care aides and other services.
On the other hand, if the necessary
treatment is covered by OHIP, the cost shifts from the employer-funded WSIB to
the publicly funded health care system. This means that every tax payer in the
province ends up footing the bill to care for people who are injured in the
course of employment, instead of the business-funded system that is supposed to
be covering the costs. The Canadian Medical Association, as far back as 2007,
has raised concerns about workplace injury-related costs being shifted to the
public system.[4] In
contrast, WSIB President and CEO David Marshall has bragged openly about how he
has spent less money providing healthcare to injured workers than his
predecessors. The WSIB, he boasts, now pays for “results” and not “process.”[5]
Similarly, when the WSIB deems an injured
worker recovered and refuses to provide wage-loss benefits, the tax payer ends
up paying the tab. Many people who can no longer work because of their injuries
end up on the Ontario Disability Support Program, again shifting the costs from
an employer-funded system to the taxpayers of Ontario.
THE
NATURE OF THE PROBLEM?
The psychologists, physiotherapists, and
other health care providers that have come forward to tell their stories here
have raised a number of serious issues that they say are preventing them from
being able to provide adequate care to their patients. The list of complaints
put forward by practitioners is substantial, and many of them are chronicled in
the stories contained within this report. The complaints are summarized below.
a)
Inadequate services:
·
Approval for services can take
months, when patients’ needs are often immediate.
·
Treating physicians’ referrals
for psychological therapy are often denied, even in dire situations.
·
The WSIB will refer an injury
claimant to a specialist but will not fund sufficient time for a proper
assessment and report. The WSIB also demands frequent progress reports that it
will not pay for and the recommendations of which are frequently ignored.
·
The treatment allowed is often
too narrow, such as not covering activities related to brain injury
rehabilitation; or occupational therapy.
·
In cases where the WSIB does
provide funding for psychological treatment, for example, the sessions are
often cut off before the treating psychologist determines that healing is
complete. Some health care professionals report that when they ask why funding
for services has been discontinued, they are simply told that the Board is not
required to provide explanations to care providers.
·
If the psychologist feels that
their patient is still struggling at the time that care is cut off, they are
forced to either abandon a patient in need or provide services for free.
·
Physiotherapists report that
when ongoing treatments (“maintenance treatments”) are denied, injured workers’
conditions can degrade. This often leads to increase use of pain medication,
loss of function, or self medicating with drugs and alcohol, all of which comes
with significantly more side effects than proper physical treatment.
b)
Ignoring the opinions of
treating medical professionals (when those opinions are not what the WSIB wants
to hear)
·
The WSIB refers injured workers
to medical professionals for assessment, and then fails to follow the
professionals’ recommendations.
·
Despite medical opinions to the
contrary, the WSIB often attributes illness or injury to “pre-existing
conditions,” and refuses to fund benefits or care.
·
The WSIB will often seek second
opinions from so-called “paper doctors,” who simply review the file without
ever meeting the patient. Dr. Brenda Steinnagel has alleged that the WSIB
inappropriately pressures these doctors to deliver dishonest reports so that
they can avoid paying benefits.
·
The WSIB pressures workers to
return to work even when their treating doctors recommend more time to heal.
·
Injured workers’ well-meaning
attempts to return to work are being used against them as evidence that they
are employable and healed, even when these attempts fail, resulting in loss of
benefits.
·
The WSIB actively tries to
discredit the opinions of treating health care professionals when those
opinions are likely to lead to increase benefit costs.
CONSEQUENCES
As the stories contained in this report
show, there are drastic human consequences to the problems described above.
Injured workers’ physical and mental health, as well as their social well-being
is profoundly affected by the WSIB’s improper interference with medical care
and bad faith decision-making.
Persons with work-induced disabilities are
vulnerable. They frequently suffer mental health consequences and are at
heightened risk of poverty. Recent research has shown that mental health
problems in injured workers are elevated after their injury, and that the
stress of dealing with the Board can actually make things worse.[6]
Even injured workers who receive benefits
tend to experience higher levels of poverty than is found in society at large,[7] and
those who do not receive benefits are even worse off. A 2010 survey of people
who self-identified as injured workers revealed that work injury has
devastating effects on things like personal and romantic relationships, housing
status, car ownership, nutrition and substance abuse.[8]
These things are all tied to physical and mental health and well-being, yet for
workers whose own health care teams testify to their need for treatment, proper
care often remains out of their grasp.
Increased depression, including suicidal
tendencies, loss of sustenance and deteriorating physical health are all
consequences that have been witnessed by the health professionals involved in
this report.
As a further complication, many heath
professionals now refuse to take on WSIB claimants as patients. The problem has
become so bad that some clinics are hesitant to take patients who are connected
to the WSIB, since experience shows them that their advice will simply be
ignored, and they will be unable to provide the care that they know their
patients will need.
SOLUTIONS
The system isn’t working, but that doesn’t
mean it can’t. The Ontario Federation of Labour, the Ontario Network of Injured
Workers’ Groups, and the health care professionals involved in this report have
a number of recommendations that we believe could solve the issues that have
been presented here.
The compensation system in Ontario has been
in retreat since the 1990s, but the changes that negatively affect workers have
accelerated rapidly since David Marshall became president and CEO of the WSIB
in January, 2010. The cuts made under Mr. Marshall’s watch have produced or
exacerbated many of the negative effects described in this report. Mr. Marshall
is leaving that position at the end of this year, and the group of people who
are presenting this report believe this is an opportunity for renewal. Soon, a
new president will take over. Injured workers and their advocates are hopeful
that many of Marshall’s regressive changes can be reversed, and that the WSIB
will take steps towards providing the services it was created to provide.
Recommendations:
1.
Have Ontario’s Ombudsman launch
a formal investigation into the WSIB’s treatment of medical advice.
Particularly the way in which health care providers’ professional advice is
often not considered and the lack of explanation offered.
2.
Collect and make public
statistics on how often injured workers’ health care providers’ advice is
disregarded.
3.
Create a protocol that
regulates rapid response times for requests from injured workers’ health care
team. For example, requiring a decision within 48 hours when an urgent request
for care is submitted to the Board.
4.
Eliminate the use of so-called
“paper doctors,” who render decisions about care without ever meeting the
patient.
5.
Give proper weight to the
opinions of the medical professionals who know the injured worker best – their
own health care team.
APPENDIX
1: FRANCOIS’ STORY
Francois* worked as a millrwight with the
same company for almost 35 years when he suffered an electrical injury. He was
healthy before this accident - he had previously lost a finger at work but had
gone right back to work after it healed.
Francois was electrocuted by 600 volts from
improperly wired equipment. He heard himself screaming, saw blinding white
light, felt his muscles spasm throughout his body, and felt excruciating chest
pain that he thought was a heart attack. He thought he was going to die.
Despite this trauma and ongoing pain,
Francois tried to persevere and returned to work for his next scheduled shift.
He managed to keep working for almost a year, all the while he became
increasing withdrawn and anxious, unable to tolerate noise and fearful of
machines. He was managing to sleep only 2-3 hours per night and turned to
alcohol.
Since he was back at work, the WSIB did not
offer him any treatment. Without treatment he continued to deteriorate and
began missing more and more time from work until he was let go.
At his wife’s insistence, the WSIB finally
agreed to specialized treatment almost a year-and-a-half later. The speciality
clinic for electrical burns diagnosed Francois with post-traumatic stress
disorder and severe depression. He began receiving some psychological treatment
in his community.
Francois’ problems with the WSIB were only
beginning though. First, his WSIB case manager threatened to cut off his
benefits if he did not attend a return to work meeting at his workplace. His doctors felt that being in the workplace
would be harmful to Francois, who was highly fearful of electrical equipment
and not well enough to work. Francois became more distressed and the meeting
was finally cancelled after the WSIB’s own specialty clinic intervened.
The WSIB then sent Francois to a doctor of
its own choosing. Francois’ psychologist had asked for this assessment because
he feared that Francois may have cognitive issues from the electrocution.
Unfortunately, the WSIB doctor’s report did more harm than good. The WSIB
doctor tried to discredit the opinion of his treating psychologist, including
his opinion about Francois’ readiness to return to work and work restrictions.
After seeing Francois once, the WSIB doctor recommended an immediate return to
work plan.
Francois’ psychologist will think twice
before accepting any WSIB patients again. She is frustrated by the WSIB’s
ongoing requests for progress reports that it refuses to pay for and its
ultimate disregard for her opinion on treatment.
*
Not the injured worker’s real name.
APPENDIX
2: KAREN’S STORY
Karen* was an active young woman with an
exceptional employment record when an accident at a mine seriously injured her
shoulder and head. In the years since, it has been a constant struggle to
acquire the physical and psychological therapy her medical team says she needs,
and the wage loss benefits she should be entitled to.
Before her accident, Karen was active in a
number of sports and hobbies. She enjoyed horseback riding every week, and was
involved in training dogs for competition. She was also part of a competitive
mine rescue team, a very grueling sport that requires intense mental and
physical stamina. Her coworkers and supervisors have often noted that having
her on the crew is good for morale, and she says she has received positive
letters of recommendation from every employer she’s ever worked for.
In June of 2013, Karen was driving a truck
in the mine. As she was stepping out, her overalls got caught on one of the
steps, causing her to lose her grip and fall, landing hard on her head and her
shoulder.
After her accident, Karen developed nausea,
headaches, dizziness, muscle strain, anxiety, and depression. She has been
diagnosed with a number of conditions, including traumatic head injury,
cervical strain, neck and shoulder injury and “concussion-related mental
impairments.” A whole range of treatments were suggested by her health care
team, including medication, physio, massage and therapy with a psychologist. It
was suggested she would benefit most from a gradual, WSIB-sponsored return to
her pre-accident job. When many of these treatments were not offered, she did
the only thing she could and tried to return to work. Her attempt to go back
was short lived, though, as she was unable to successfully complete the tasks
she was assigned, and many of her symptoms began to worsen. Still, the WSIB
interpreted her effort to return as a sign that she was capable of employment,
and cut off her wage loss benefits, even though several health care
professionals had indicated she should not be working due to dizziness and
muscle damage.
Karen has had two previous head injuries,
but had recovered from both and was living a normal life when her mine accident
happened. Even though the evidence shows that her current symptoms arose only
after the newest injury, the WSIB claims that her diagnosed symptoms are the
result of a “pre-existing condition.” In response to requests from her
psychologist, the Board said they began reviewing Karen’s file in April 2014.
Despite multiple requests from her medical team and seven letters written by
her legal aid lawyer (none of which received a response), no decisions have
been made. The fact that no decisions have been made means that Karen cannot
move through the appeal process. Karen is therefore stuck in limbo, and has
been forced onto social assistance.
Based on evidence provided by her health
care team, a number of other agencies (such as Employment Insurance and Canada
Pension Plan) have agreed that Karen is unable to work because of her workplace
injuries. Her health care team is frustrated that their professional opinions
are not being valued by the Board.
* Not the injured worker’s real name.
APPENDIX
3: TOM’S STORY
When Tom* was only in high school, his head
was crushed between a transport truck and a loading dock ramp. That was ten
years ago, and while he experiences significant psychological trauma, the WSIB
refuses to pay his psychologist, but won’t say why.
As a young man, Tom was working on a
loading dock when a truck that lacked a reverse alarm pinned his head against
the edge of the dock. The blow left him unconscious. At the hospital, he was
found to have endured a serious skull fracture and a lot of bleeding in his
brain. He had to have a piece of his skull removed for three months, during
which time he was required to wear a helmet.
With the help of a team of rehabilitation
health professionals, Tom was able to complete high school, but he still faces
a number of serious barriers relating to his brain injury. He has very severe
troubles with stress and overstimulation. He has a short temper, and struggles
to understand other peoples point of view. He tried attending college but had
difficulty organizing information, memorizing and being flexible. To this day
he has trouble holding down employment because he either quits or is let go due
to his trouble tolerating the stimulation and speed of the job, his high level
of irritability, or his difficulty managing stress.
In 2013, an emergency room physician who
was extremely concerned about Tom’s panic experiences referred him back to the
psychologist who had been on his rehabilitation team. While the WSIB funded
some initial sessions, they were cut off in October 2014, despite the fact that
according to his medical team, more treatment was needed. Obviously concerned
for his patient’s well-being, Tom’s psychologist asked for justification for
why the Board would reject sessions that were very strongly recommended by the
injured worker’s medical team, and was told that the “WSIB is not required to
provide the grounds for their decision to health care providers.”
Tom has a son, and is separated. At times,
he has had to live in a room above his parents’ garage so they could care for
him when he had no other supports. He experiences severe depression, and
readily admits that if he did not have a child to care for he would have killed
himself a long time ago.
Tom’s psychologist (whose level of concern
for the injured worker has led him to provide treatment for free) says that “as
a result of his accident Tom clearly requires ongoing rehabilitation, support,
and a realistic vocational and supported work re-entry plan, but since 2014 all
services have stopped,” adding that due to “a lack of rehabilitation and
support, this individual’s life is now simply in ruins.”
*
Not the injured worker’s real name.
APPENDIX
4: KEITH’S STORY
Keith* suffered a brain injury and serious
spinal injury when he fell eight feet and landed on his head. Despite immediate
and ongoing physical and psychological distress, receiving treatment remains a
constant struggle for this injured worker.
Keith was working underground at the time
of the accident. Unfortunately, his helmet came off during the fall and offered
him no protection. When his head struck rock, witnesses say that they thought
he was dead.
In contrast to what Keith’s medical team
has advised, the Board has decided that he does not have a permanent injury.
Even though Keith has a solid and consistent work history, and even though he
sustained three spinal compression fractures from the fall, they are calling
his ongoing pain “pre-existing.”
While the Board originally funded some
physiotherapy, they ultimately turned down the physiotherapist’s strongly
worded request for ongoing treatments to manage Keith’s continuing chronic
pain. His condition has continued to degrade, and requests for more therapy –
at the recommendation of a health care professional – continue to be denied.
Now, he is on so many medications related to this pain that his doctor has
ordered him not to drive and functioning day to day is a struggle.
But Keith is suffering from more than
physical pain. Shortly after the injury, Keith’s doctor became concerned about
his depression and poor sleep due to a possible brain injury. As his treating
physician, he suggested Keith see a psychologist. The WSIB denied this request.
When his depression reached what his doctor called “profound levels” he again
requested psychological support for his patient. He was again denied. Some two
years and many requests later, Keith was finally granted limited sessions,
though any activities related to brain injury rehabilitation or occupational
therapy (both of which the psychologist has strongly recommended) have been
flatly turned down.
While Keith’s mental health has been
improving, his psychologist remains concerned that he struggles with severe
depression, a lack of purpose and is at risk of suicide. Their funded sessions
together are now complete. His psychologist doesn’t anticipate receiving
approval for more, but even if they do, it will take months.
Every medical professional in Keith’s life
agrees that he needs continued physical and psychological support in order to
regain and retain some quality of life. The WSIB – who are not doctors and who
have never met Keith – have ignored the recommendations and requests of all of
them.
*
Not the injured worker’s real name.
[1] Hamilton Spectator
(Jaques Gallant), Fired Hamilton doctor sues WSIB over ‘fraud upon the public,’
31 October 2014.
http://www.thespec.com/news-story/5928759-fired-hamilton-doctor-sues-wsib-over-fraud-upon-the-public-/
[2] Workplace Safety and
Insurance Act, Section 33(1). http://www.ontario.ca/laws/statute/97w16#BK36
[3] Workplace Safety and
Insurance Act, Section 33(2).
[4] Thompson, Aaron, The
Consequences of underreporting workers’ compensation claims. Canadian Medical
Association Journal, 30 January 2007. 176(3) 343.
[5] The Liversige E-letter, 6 February 2014.
http://laliversidge.com/Portals/0/eLetters/The%20Liversidge%20e-Letter%2020140206%20WSIB%20Chair%20at%20Board%20of%20Trade.pdf
[6] O’Hagan, Fergal, et.
al., Mental Health Status of Ontario Injured Workers With Permanent Impairments.
Canadian Public Health Association Journal, July/August 2014. 103(4) e303.
http://journal.cpha.ca/index.php/cjph/article/view/3036
[7] Ballantyne, Peri,
et. al., Poverty status of worker compensation claimants with permanent
impairments. Critical Public Health, 17 March 2015.
http://www.tandfonline.com/doi/full/10.1080/09581596.2015.1010485
[8] Ontario Network of
Injured Workers’ Groups, Many Losses, Much Hardship, March 2012.
http://injuredworkersonline.org/documents/reports-articles-and-papers/ONIWG_20120300_Injured_Workers_PovertySurvey2010_Report.pdf
http://injuredworkersonline.org/documents/reports-articles-and-papers/ONIWG_20120300_Injured_Workers_PovertySurvey2010_Report.pdf
FOR IMMEDIATE RELEASE
November 4, 2015
ADVISORY: OFL, Injured Workers and Medical Professionals to Release Report Exposing WSIB Interference in Medical Care
(TORONTO, ON) ─ On Thursday, November 5, the Ontario Federation of Labour (OFL) and the Ontario Network of Injured Workers’ Groups (ONIWG) will be releasing a damning report exposing interference on the part of the Workplace Safety and Insurance Board (WSIB) in the medical care of injured workers.At a Queen’s Park media conference hosted by the OFL and ONIWG, medical professionals will come forward to raise alarm about the WSIB’s management of medical care and medical evidence as it relates to WSIB benefits recipients. They will also share stories about the WSIB’s failure to heed medical advice regarding readiness to return to work, insufficient treatment, blaming ‘pre-existing’ conditions for ongoing illness, and using independent medical reviews which proclaim patients to be healed, despite the evidence of treating practitioners. The net effect is a system that re-victimizes the very injured workers it is mandated to compensate and protect.
WHAT: Media Conference with Medical ProfessionalsThe full report, called “Prescription Over-Ruled: Report on How Ontario’s Workplace Safety and Insurance Board Systematically Ignores the Advice of Medical Professionals,” will be posted online to the OFL website at 7:00 a.m. on Thursday, November 5, 2015, in advance of the media conference: www.OFL.ca.
WHEN: Thursday, November 5 at 10:00 a.m.
WHERE: Queen’s Park Media Studio, Toronto
WHO: OFL Secretary-Treasurer Nancy Hutchison and Registered Psychologists, Dr. Keith Klassen and Dr. Giorgio Ilacqua
The Ontario Federation of Labour (OFL) represents 54 unions and one million workers in Ontario. For information, visit www.OFL.ca and follow the OFL on Facebook and Twitter: @OFLabour.
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For further information: Joel Duff, OFL Communications Director: or jduff@ofl.ca *FRENCH/ENGLISH*
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