July 8, 2015 By: Peggy King
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Under the Workplace Safety and Insurance Act (WSIA), workers are not able to sue their employers, so they must rely on the Workplace Safety and Insurance Board (WSIB) to adjudicate their claims and assess medical opinions. The WSIB determines payment of loss of earnings (LOE) and health care benefits, and also assists and simplifies the return to work process. More recently, however, workers have seen reductions to the duration of LOE benefits and health care benefits.

The WSIA states that injured workers have a legal right to “necessary, appropriate, and sufficient” healthcare treatment. In most cases where the WSIB denies treatment, injured workers will have it covered by the Ontario Health Insurance Plan (OHIP). Unfortunately, OHIP does not usually cover medications, physiotherapy, chiropractic care, registered massage therapy or counselling with a psychologist.

Specialty clinics

Over the last several years, the WSIB has been funding specialized clinics in different cities throughout the province. These clinics are distinct from a worker’s regular treating clinician, who would usually be a family physician, physical therapists, psychologist or psychiatrist. Workers are referred to these specialty clinics where the WSIB determines that the worker is not responding to treatment quickly enough, or to confirm a diagnosis and decide upon treatment options.

In some cases, workers are advised that if they do not attend these clinics they could be considered to be non-cooperative, and their LOE benefits may be affected. In others cases, the recommendations of the specialty clinics may differ significantly from the treating clinicians. The specialty clinics will often confirm a diagnosis, and suggest when a full recovery should be achieved, based on treatment recommendations. For example, a clinic may confirm a diagnosis of a sprain, and suggest that a full recovery should be achieved within 6 weeks. In cases where this occurs, the WSIB has suggested to the worker that they should be back to work at the end of the 6-week period, and may terminate further treatment after this point. However, this may not be the best course for that worker, and the recovery time may in fact be longer.

Recovery time

It is very important that injured workers pay attention to the clinic’s recommendations regarding recovery times, as the WSIB will place more weight on the clinic’s opinion, rather than that of the treating clinician. In most cases, injured workers are examined by their own treating clinicians more regularly than the very limited contact they have with the specialty clinic. It is therefore important for workers, or their representatives, to emphasize this fact if they disagree with an opinion expressed by one of the WSIB-funded clinics.

Not all injuries will heal within the usual healing times for similar injuries, and may require further investigation. For example, a slip-and-fall incident that injures the lower back may initially be investigated by an X-ray. A CT-scan would not usually be conducted at the onset, but may be requested after the worker does not respond favourably to a course of physiotherapy treatment.

For other types of injuries, an MRI may not be requisitioned until much later, and the worker could be required to wait several months for an appointment through the OHIP system. The WSIB does have access to private MRI clinics, as they do to specialty clinics. In situations where a worker’s specialist or family doctor makes a case to the WSIB for a worker to have an MRI, the WSIB can facilitate and pay for this appointment, in a timely manner.

Continued investigation

It is imperative in situations where workers do not agree with a decision by the specialty clinic or the WSIB regarding their medical status, that they continue to see their clinicians. This is especially important for clinics funded through OHIP, to ensure that the worker will not be out of pocket for medical fees. These continued investigations and treatments may be needed to challenge a WSIB decision regarding recovery, fitness for work, and continued treatment.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law
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