Submissions of the Workplace Safety and Insurance Appeals

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Submissions of the
Workplace Safety and Insurance Appeals Tribunal
on the CPSO Draft Policy:
Third Party Processes: Treating Physicians,
Independent Medical Examiners, Medical Experts
Thank you for the opportunity to comment on the College of Physicians and Surgeons
of Ontario’s (CPSO) draft policy on Third Party Processes.
It would be helpful to provide a brief description of the work of the Workplace Safety and
Insurance Appeals Tribunal (WSIAT), to illustrate WSIAT’s direct interest in third party
processes. Reports from treating physicians, independent examiners, and medical
experts are critical to WSIAT’s adjudicative decision-making, and fairness to injured
workers.
Background to the Workplace Safety and Insurance Appeals Tribunal (WSIAT)
Created by statute in 1986, the Workplace Safety and Insurance Appeals Tribunal
(WSIAT) is an independent adjudicative tribunal governed by the Workplace Safety and
Insurance Act (Workplace Safety and Insurance Act 1997 S.O. 1997 c. 16, Sch. A).
WSIAT’s primary function is to hear appeals from final decisions of the Workplace
Safety and Insurance Board (formerly known as the Workers’ Compensation Board).
WSIAT also has exclusive jurisdiction to determine whether a person’s right of action for
an injury is taken away. WSIAT is the final level of appeal in workplace safety and
insurance in Ontario.
WSIAT is different from a court. Often only one party participates in a WSIAT hearing.
Consequently the Legislature has given WSIAT broad powers. WSIAT determines its
own practice and procedure and follows an inquisitorial, rather than an adversarial,
model of adjudication. This means WSIAT can get its own medical evidence, and not
just rely on evidence that the parties to an appeal provide.
The Tribunal is not bound to follow legal precedent. Instead it is required by law to base
its decisions upon the “merits and justice” of each case. As the Courts have
recognized, in the matters it considers WSIAT strives to “get it right”.
Appeals and applications to WSIAT are heard by a single vice-chair sitting alone, or by
three-person panels. Over the past twenty-five years the Tribunal has released over
fifty thousand decisions. All of these decisions are published, indexed, and searchable
free of charge on WSIAT’s web site (www.wsiat.on.ca).
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Many decisions of the Ontario Court of Appeal and the Ontario Divisional Court have
ruled that WSIAT is an expert tribunal, and that decisions of WSIAT are subject to the
highest degree of deference by the courts. 1
WSIAT has released thousands of decisions on the relationship of employment to a
medical condition. In fact, WSIAT determines issues of medical causation in the
majority of its decisions. The Divisional Court has specifically held that deciding
whether a medical condition arose out of employment “lies at the heart and core of
[WSIAT’s] function and expertise”. 2
WSIAT’s Medical Liaison Office (MLO)
WSIAT’s relationship with the medical community is viewed as particularly important, as the
quality of the Tribunal’s decisions on medical issues will be dependent on that relationship.
Due to the importance of medical issues in WSIAT’s work, WSIAT has always had a
special department which is devoted to ensuring that WSIAT adjudicators have access
to the best medical resources available. This department is known as the Medical
Liaison Office (MLO).
The MLO plays a major role in identifying and investigating medical issues, and
obtaining medical evidence to assist with the decision-making process. MLO nurses
with outstanding credentials, including extensive clinical nursing and workplace safety
and insurance backgrounds, assist WSIAT adjudicators to obtain reports from impartial
and independent medical experts. MLO oversees all WSIAT’s interactions with the
medical community, and in particular with WSIAT “Medical Counsellors” and “Medical
Assessors”.
1
Mills v Ontario (Workplace Safety and Insurance Appeals Tribunal), [2008] O.J. No. 2150 (ONCA), 2008 ONCA 436 (CanLII) at para 14, 24, 31 http://www.canlii.org/en/on/onca/doc/2008/2008onca436/2008onca436.pdf Audmax Inc. v. Ontario (Human Rights Tribunal), [2011] O.J. No. 210, 2011 ONSC 315 (CanLII)(Ont. Div. Ct.) at para 29 http://www.canlii.org/en/on/onscdc/doc/2011/2011onsc315/2011onsc315.pdf Rodrigues v Ontario (Workplace Safety and Insurance Appeals Tribunal), [2008] O.J. No. 4103 (ONCA), 2008 ONCA 719 (CanLII) at para 22 http://www.canlii.org/en/on/onca/doc/2008/2008onca719/2008onca719.pdf 2
Kamara v. Ontario (Workplace Safety and Insurance Appeals Tribunal) [2009] O.J. No. 2080, 2009 CanLII 26353 (ON SCDC) (Ont. Div. Ct.) at para. 11 http://www.canlii.org/en/on/onscdc/doc/2009/2009canlii26353/2009canlii26353.pdf 3
Medical Counsellors
The Medical Counsellors are a small group of eminent medical specialists who serve as
consultants to WSIAT. They play a critical role in assisting MLO to carry out its mandate
of ensuring the high quality of Tribunal decision-making on medical issues. 3
Prior to a hearing, MLO identifies those appeals where the medical issues are
particularly complex or novel. MLO may refer the appeal materials in these cases to a
Medical Counsellor. The Medical Counsellor reviews the materials to verify whether the
medical evidence is complete, and contains opinions from appropriate medical experts.
The Counsellor also identifies questions or concerns about the medical issues that may
need clarification for the WSIAT Panel or Vice-Chair. Medical Counsellors may
recommend that a Panel or Vice-Chair consider obtaining a Medical Assessor’s opinion
if the diagnosis of the worker’s condition is unclear, if there is a complex medical
problem that requires explanation, or if there is an obvious difference of opinion
between qualified experts.
After a hearing, Panels or Vice-Chairs may need further medical information or an
expert medical opinion to decide an appeal. Medical Counsellors assist MLO by
recommending a suitable Medical Assessor, and by suggesting questions for the
Medical Assessor to be approved by the Panel or Vice-Chair.
Medical Assessors
When WSIAT was created, it was given the power to initiate further medical investigations
whenever necessary to determine any medical question on appeal. Such investigations may
be referred to a qualified health professional who is a member of a College of a health
profession as defined in the Regulated Health Professions Act. All health professionals
named to WSIAT’s authorized roster are physicians with a recognized specialty, and are
referred to as WSIAT’s “Medical Assessors”.
Medical Assessors assist WSIAT adjudicators to “get it right”. They do so in a number of
ways.
Most often, they are asked to give their opinion on a medical question, which may
involve examining a worker and/or studying the medical reports on file. They may be
asked for an opinion on the validity of a particular theory which a Hearing Panel or ViceChair has been asked to accept. They may be asked to comment on the nature, quality
or relevance of medical literature.
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WSIAT is pleased to note that in 2010 one of its Counsellors, Dr Marvin Tile, was appointed a Member of the Order of Canada for his contributions as a clinical orthopedic surgeon, teacher, and groundbreaking researcher. 4
The opinion of a Medical Assessor is normally sought in the form of a written report. A
copy of the report is made available to the worker, employer, the Panel or Vice-Chair,
and (after the appeal) the WSIB. On occasion, a Hearing Panel or Vice-Chair will want
the opportunity to question the Medical Assessor at the hearing to clarify their opinion.
In those cases, the Medical Assessor will be asked to testify at the hearing. The parties
participating in the appeal, as well as the Panel or Vice-Chair, have the opportunity to
question and discuss the opinion of the Medical Assessor.
Although the report of a Medical Assessor will be considered by the Tribunal Panel or
Vice-Chair, the Courts have recognized that the Medical Assessor does not make the
decision on appeal. The actual decision to allow or deny an appeal is the sole
preserve of the WSIAT adjudicators. 4
Medical Assessors also assist in educating WSIAT staff and adjudicators in a general
way about a medical issue or procedure coming within their area of expertise.
WSIAT Resources Available to the Public
WSIAT places medical articles, medical Discussion Papers, and anonymized medical
reports on generic medical or scientific issues in the Ontario Workplace Tribunals
Library. This publicly-accessible collection of medical information specific to issues that
arise in the workplace safety and insurance field is unique within the Ontario WSIB
system.
Of all the medical information made available by WSIAT, Medical Discussion Papers
are the most frequently requested. WSIAT commissions Medical Discussion Papers to
explain medical issues which are often raised in WSIAT appeals. Each Medical
Discussion Paper is written by a recognised expert in the field selected by WSIAT. Each
expert is asked to present a balanced view of the current medical knowledge on the
topic.
Medical Discussion Papers provide a broad and general overview of a medical topic.
They are written for a lay audience, in simple and clear language. WSIAT adjudicators
may consider and rely on the medical information provided in the Medical Discussion
Paper, though WSIAT is not bound by a Medical Discussion Paper in any particular
case. It is always open to parties to an appeal to rely on or distinguish a Medical
Discussion Paper, or to challenge it with alternative evidence.
Medical Discussion Papers are available to the public free of charge through the WSIAT
Website.
4
(Hary v Ontario (Workplace Safety and Insurance Appeals Tribunal) [2010] O.J. No. 5384, 2010 ONSC 6795 (CanLII),(Ont. Div. Ct) at para 11 http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc6795/2010onsc6795.pdf 5
SUBMISSIONS OF WSIAT
1.
CPSO Draft Policy, Line 8: Change “workers’ compensation” to
“workplace safety and insurance”
The “Workers’ Compensation Act” was renamed the Workplace Safety and Insurance
Act effective January 1, 1998. At the same time the Workers’ Compensation Board was
renamed the Workplace Safety and Insurance Board, and the Workers’ Compensation
Appeals Tribunal became the Workplace Safety and Insurance Appeals Tribunal.
In 2010 there were over 240,000 claims registered with the Workplace Safety and
Insurance Board. There is no doubt that workplace accidents occupy a significant
amount of time for the members of the CPSO.
The term “workers’ compensation” has now effectively been replaced in Ontario with
“workplace safety and insurance”. WSIAT recommends changing the policy reference
from “workers’ compensation” to “workplace safety and insurance”, not only to be sure
the CPSO policy is up-to-date, but because by making this change the policy
recognizes that the care of workers is a significant part of the work of Ontario
physicians.
2.
CPSO Draft Policy, Footnote 2: Add “Workplace Safety and
Insurance Act 1997, S.O. 1997 c. 16, Sch. A”
Similar to item #1 above, given the unique nature of the legislation affecting workplace
injuries in Ontario, WSIAT recommends that a reference to the Workplace Safety and
Insurance Act be included in the references to requirements for specific third party
processes. WSIAT notes that a reference to WSIA already appears in Footnote #6.
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3.
CPSO Draft Policy, Footnote 3:
(a) Change “individual” to “person”;
(b) After “insurer” add “a board or tribunal”
(a) Footnote #3 under the heading “Obligation to Provide Information or Opinions”,
states that when a request to participate in a third party process is received “Requests
can be made by any individual involved in a third party process. This may include a
patient, an insurer, an employer, a lawyer or the like.”
An insurer or employer is not likely to be properly characterized as an individual.
However they may be considered to be a “person” since a corporation may be legally
characterized as a person. See for example section 87 of the Legislation Act, 2006 S.O.
2006, Chapter 21, Schedule F states “In every Act and regulation…. “individual” means
a natural person”, and also that “person” includes a corporation”.
WSIAT recommends that the word “individual” in footnote #3 be changed to “person”.
(b) WSIAT and the Workplace Safety and Insurance Board (WSIB) may request
physicians to provide information or opinions. As noted, WSIAT has an investigative
mandate so it may request medical opinions and reports. For the purposes of this
CPSO policy WSIAT is not a patient, insurer, employer, or lawyer. The WSIB, while it
could be characterized as an insurer, also has investigative powers and an adjudicative
mandate significantly different from a typical private insurance company. WSIAT
believes it would be useful if this distinction were included in footnote #3, to make it
clear that the policy will also include requests to provide information from WSIAT and
the WSIB.
Accordingly WSIAT recommends that “a board or tribunal” be added after the word
“insurer” in footnote #3.
4.
CPSO Policy, Footnote 5: Add examples of conflicts of interest
which include references to partners of a physician and family
members of the patient, as set out in section 134 (5) of the
Workplace Safety and Insurance Act.
Footnote #5 refers to the statement in the draft policy that physicians should be aware
of any actual or potential conflicts of interest between themselves and the parties
involved in the third party process. Footnote #5 provides examples of situations where
physicians could have a conflict of interest. Footnote #5 states:
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“Examples of situations where physicians could have a conflict of interest are as
follows: the physician acted as the opposing party’s treating physician, the
physician had previously discussed the case with another party, or the physician
had a personal relationship with any of the parties involved…”
WSIAT recommends adding two further examples of potential conflict of interest, which
are taken from the Workplace Safety and Insurance Act. WSIAT recommends
amending footnote #5 to read as follows: “Examples of situations where physicians
could have a conflict of interest are as follows: the physician or the physician’s
partner acted as the opposing party’s treating physician, or acted as the treating
physician of a close family member of the opposing party; had previously
discussed the case with another party, or the physician had a personal relationship with
any of the parties involved…”
WSIAT makes these recommendations for two reasons. First, to make physicians
aware of conflicts from the WSIA about which they might otherwise not be aware.
Second, because these two examples may well create issues of conflict for physicians
in situations that are outside the workplace safety and insurance sphere.
WSIAT may consult physicians who have been named to a roster of Medical Assessors.
Section 134 (5) of the Workplace Safety and Insurance Act has identified specific
situations where a conflict arises, so that the Assessor will not be able to provide an
opinion to WSIAT unless the parties to the appeal specifically consent. These situations
cast a broader net than the examples identified in the CPSO policy, and include whether
the health professional has previously treated the injured worker or a member of the
injured worker’s family. The conflict would also extend to a physician if a partner of the
physician had treated the worker or the worker’s family.
Section 134(5) of WSIA contains the restrictions referred to above. The entire text of
section 134 is reproduced below:
134. (1) The chair of the Appeals Tribunal may establish a list of health
professionals upon whom the tribunal may call for assistance in determining
matters of fact in a proceeding. The list must not include employees of the
tribunal or the Board.
Remuneration
(2) The chair shall determine the remuneration to be paid to a health
professional who assists the Appeals Tribunal and, in doing so, shall take
into account any fee schedule established by the Board for services
provided by health professionals.
Same
(3) The Appeals Tribunal shall pay a health professional the amount
determined by the chair.
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Assistance by health professional
(4) The Appeals Tribunal may call upon a health professional on the list for
assistance at any time before or during a proceeding.
Restriction
(5) The Appeals Tribunal shall not call upon a particular health professional
for assistance in any of the following circumstances except with the written
consent of the parties to the proceeding:
1. If the health professional has previously examined the worker whose
claim is the subject of the proceeding.
2. If the health professional has previously treated the worker or a
member of his or her family.
3. If the health professional has acted as a consultant in the treatment
of the worker or as a consultant to the employer.
4. If the health professional is a partner to a health professional
described in paragraph 1, 2 or 3.
Health examination
(6) If the chair or a vice chair of the Appeals Tribunal determines that an
issue on an appeal concerns the Board’s decision on a health report or
opinion, the chair or vice chair may require the worker to submit to an
examination by a health professional (selected by the chair or vice chair)
and the worker shall do so.
Same
(7) The health professional shall give the Appeals Tribunal a written report
on his or her examination of the worker and the tribunal shall give a copy of
the report to the parties for the purpose of receiving their submissions on it.
Failure to comply
(8) If a worker fails to comply with subsection (6) or obstructs the
examination without reasonable cause, the Appeals Tribunal may suspend
payments to the worker under the insurance plan and may suspend the
worker’s right to a final decision by the tribunal while the non-compliance or
obstruction continues. 1997, c. 16, Sched. A, s. 134.
Although these provisions are specific to WSIAT Medical Assessors, they are
something the CPSO may wish to consider in instances not specific to WSIAT. It does
seem more than possible that in the course of treating a member of a patient’s family, a
physician may become privy to information about the patient that he or she would not
otherwise have. For example, if a physician provides an opinion about a patient’s
spouse to a party adverse in interest to the spouse, this may put the physician in a
conflict if that physician has received information about the spouse through their patient.
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Similarly, if a physician treats a patient, yet the physician’s partner in the next office
provides a report adverse in interest to the patient, this may raise a possible conflict for
the physician, either real or apprehended. This conflict would be more acute where
physicians cover for each other during absences. There is also a reasonable
apprehension that the physician and his partner may have discussed the patient’s case
with each other.
To provide an example, WSIAT has had a potential conflict arise where two physicians
worked in the same institution. One physician treated a worker as a patient. The
physician’s colleague was asked by a third party to provide a report on the patient’s
condition. In completing the third party report, the institution (allegedly) accidentally
combined the worker’s files, so the third party report contained references to information
from the patient’s file with the treating physician.
Obviously there would have to be limits on how far such a conflict would extend, so that
the entire staff of a large hospital could not be in a conflict for providing an adverse
report on a person simply because one member of the staff had seen that person as a
patient.
WSIAT recommends the additional wording above be included in the CPSO policy.
5.
CPSO Policy, Line 150 – Do not require payment in advance by
WSIAT for medical records or reports
Paying physicians in advance for reports and copies of clinical notes presents some
problems for WSIAT.
First, WSIAT recognizes and supports the right of physicians to be paid promptly for
providing copies of records and medical reports. For twenty-five years WSIAT has
always paid physicians promptly upon receipt of the requested materials. Footnote 6
refers to the specific requirements in the Workplace Safety and Insurance Act.
However it is important to understand that it is WSIAT, not injured workers, that pays for
the medical reports and records of injured workers which it requests.
When WSIAT requests copies of records from physicians, it uses its own forms to
ensure the request is as specific as possible. Despite this, there have been many
instances where physicians have either omitted relevant information, or provided copies
of documents which WSIAT has not requested. If WSIAT were to pay the physician in
advance, this would mean WSIAT would pay for materials it had not requested and
would be put in the position of attempting to recover payment from the physician.
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Noting that the medical information requested by WSIAT will always relate to basic
income replacement and health care benefits for injured workers, WSIAT requests that
the policy be amended to read as follows:
“While it is generally permissible for physicians to request receipt of payment in
advance of providing the information or opinion, the College encourages physicians to
refrain from doing so on compassionate grounds when the fee is being paid directly by
or for the individual who is the subject of the third party process, and the information or
opinion being provided relates to basic income and health benefits.”
6.
CPSO Policy, Line 235 – Add a reference to protection for a
physician, where a party seeks to intimidate or punish the
physician by bringing frivolous and time consuming complaints
against a physician, simply because the party does not like the
physician’s report
WSIAT notes that the CPSO draft policy sets out expectations that the physician’s
report shall be objective, impartial, restricted to areas where the physician has
appropriate expertise and knowledge, comprehensive, accurate, clear, relevant and
timely. WSIAT strongly supports these expectations. WSIAT notes that all of these
requirements are important and will be extremely helpful to WSIAT and the parties to
WSIAT appeals.
However, WSIAT has often encountered situations where a physician has come under
unfair attack simply for providing his or her opinion to WSIAT. As noted, WSIAT retains
Medical Assessors, who provide a critical service in helping WSIAT adjudicators decide
appeals. Regrettably, many injured workers who appeal to WSIAT suffer from emotional
and psychological conditions that have left them deeply suspicious of the medical
profession and authority figures. It has been distressing to see physicians who render
excellent reports being subjected to groundless complaints to the College and other
institutions. WSIAT is concerned that this potential for unfair attack may provide a
disincentive for physicians to accept difficult cases and render forthright opinions.
WSIAT therefore recommends that since the CPSO requires physicians to produce
reports that are objective, impartial, comprehensive, accurate, clear, relevant and
timely, it would be helpful if the policy included an assurance that physicians will be
protected from unfair attack when they produce such a report.
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7.
CPSO Policy, Line 310 – Amend the policy so that the College
expects physicians will provide information or opinions for the
third party process within thirty days, where the information or
opinion being provided relates to basic income and health
benefits
The draft CPSO policy states that absent a specific legal requirement, the College
expects that physicians will provide information or opinions for the third party process
within sixty days.
WSIAT recognizes that physicians have many demands on their time. However, it would
be helpful if the time for providing requested information could be reduced so that
physicians are encouraged to provide information for the third party process within 30
days.
In the case of requests for information from WSIAT, injured workers who appeal to
WSIAT from a decision of the WSIB have almost always been caught up in the
workplace safety and insurance system for years. Usually emotionally distressed, often
in pain, the injured worker and his or her family typically have very little money and are
hoping their appeal to WSIAT will be successful.
In addition, injured workers frequently do not have legal counsel, and so represent
themselves in their final appeal. This means WSIAT often has to obtain missing medical
information before a final decision can be rendered in the injured worker’s appeal. An
additional delay of 60 days can be a very long time for an injured worker and his or her
family to wait, particularly for simple routine inquiries.
Accordingly, WSIAT requests the CPSO policy be amended so that it is consistent with
the existing language in the policy at lines 150 to 155 (cited under recommendation #5
above) regarding basic income and health benefits. WSIAT recommends that the
College expect physicians to “provide information or opinions for the third party process
within thirty days, where the information or opinion being provided relates to basic
income and health benefits.”
WSIAT would be pleased to clarify any of the above recommendations.
All of which is respectfully submitted this 22nd day of July, 2011.
___________________________
Ian Strachan
Chair
Workplace Safety and
Insurance Appeals Tribunal
_______________________
Susan Adams
Executive Director
Workplace Safety and
Insurance Appeals Tribunal