When you object to the initial entitlement of a WSIB claim, in effect having it denied outright, there are several considerations you should keep in mind. Clear Path’s Anna Aceto-Guerin answers some questions about the process:
What are some reasons that you would object to a claim?
There are several reasons why an employer objects to the approval of a WSIB claim, but the most common reasons are:
When should you object to the validity of a claim?
If you wish to object to initial entitlement, it is important that you do so immediately. Ideally, you are including your intention to object on the Form 7, along with the results of your internal investigation and witness statements.
At minimum, indicate on the Form 7 that the investigation is ongoing and that you will be submitting documentation shortly. Once the WSIB has decided to accept entitlement in a claim, it is very difficult to have it overturned. You have a much better chance of having it denied outright then having an accepted claim overturned. Once benefits are flowing, the case manager is not likely to stop those easily.
What is the best way to have success with your objection?
Include as much evidence as you can along with your objection. That means performing an investigation after every accident or injury. Go to the actual location of the incident. Get pictures. Get a written statement from the injured worker as to exactly what happened (in addition to their Form 6) as well as any witnesses, ideally using your company’s own worker or witness statement forms. Review video surveillance footage if it exists.
This is where a lot of employers fall down. They just take the Form 6, fill out a Form 7 and submit it. Later, they may discover that they have concerns, but it may be too late.
What if you feel the injury or illness is non-occupational?
Just because you don’t agree that an injury is work-related doesn’t mean that the worker isn’t having an issue or that you shouldn’t support them through their recovery and return to work.
f you think the worker’s issue or injury may be not work related or compatible to their normal work duties, you should let the worker know and point them towards your company’s sick days or Short-Term-Disability (STD) benefits programs if they require lost time. Let them know that you will accommodate them (as per Human Rights obligations) and support them in their recovery regardless of it this is work related or not.
We recently helped a client to object to a claim for a worker who had injured himself playing baseball. He was later diagnosed with a ganglion cyst and claimed this was work-related. We argued against this and the claim was denied.
How do you prove that an injury is not compatible with the duties of a job?
Having a Physical Demands Analysis (PDA) for each position in your company will provide you with clear evidence to provide to a WSIB Adjudicator, so they can more readily determine compatibility. It also can serve as an effective tool during the Return-To-Work process for an injured worker.
In the absence of a PDA, an employer can still argue that an injury is not consistent with the duties of a job. Provide as much evidence as possible to support your argument, including pictures and written description of the job.
Do you have a real-world example of an injury that was not compatible?
We recently helped a customer with an employee claiming that the exertion he needed to “turn” the steering wheel in the company’s forklift caused him to injure his shoulder. However, we successfully argued that the turning mechanism on the machine can be moved with the effort of one finger and does not require any “cranking.” We were able to provide pictures of the machine and more detail of how it is used in different applications so the case manager had a better idea of the effort required. The claim and initial entitlement, was denied.
Would there ever be a time that you wouldn’t submit a PDA, even if you have one?
Interesting question and difficult one to answer. You may object and have a verbal conversation with the claims manager, but you may not want to send the PDA if it doesn’t support your argument. If someone has only been doing the job for a short period of time and claims a repetitive strain and the PDA actually identifies a potential risk of that, then the WSIB is going to automatically approve -- regardless of the fact that the duration in that job does not support the claim. In those instances, we would recommend considering not submitting the PDA.
Any final thoughts?
Consider utilizing a medical professional as part of your claims management process. If you have access to a nurse or other medical professional onsite, have them get a health history from the worker (especially for gradual onset claims). If you don’t have access to one, consider utilizing external medical resources. They will assist with return to work and at time can also assist with determining compatibility with a job and the injury itself. At minimum an investigation is always a good idea. If all fails don’t hesitate to reach out for assistance, sooner rather than later.
Where can employers come for assistance with this process?
If you have any questions about WSIB claims management, including how to object to the initial entitlement of a claim, we would love to hear from you. Contact Anna Aceto-Guerin at email@example.com or toll free at (888) 336-0950,
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Is veganism the next protected human right?
A vegan advocacy group is arguing that recent revisions to Ontario’s Human Rights legislation which expanded the definition of the protected ground "creed" to include“non-religious belief systems that… substantially influence a person’s identity, worldview and way of life” open the door to further protections for its adherents.
Critics argue that the Human Rights Code was put into place to combat real persecution based on an individual’s religion, culture or ethnic affiliation. They worry that including things such as veganism under the creed protection allow for fringe beliefs or those from less-than-respected sources to also be included. They also argue that such a broadened interpretation will eventually weaken the effectiveness of the Human Rights legislation.
What are the new revisions to the Human Rights Code?
In its first revision since 1996, the Ontario Human Rights Commission modified the definition of the protected ground "creed" in December 2015. The changes expand what falls under the definition of “creed” to include protection of secular, non-religious beliefs under certain conditions, which many believe aligns with the legal and social developments in Canada over the past two decades.
The updated policy uses a five-pronged approach to determining whether a belief system qualifies as a legally protected creed:
How are vegans affected from this revision?
A vegan is an individual who only eats food derived from plants (excluding all meat and dairy products) and who has a belief system that opposes harming animals or using any animal by-products. For animal rights advocacy groups, such as Animal Justice, this revision is a big victory. After many years of fighting for representation under the creed ground, the advocacy group sees this as an opening for protection of the rights of ethical vegans.
It is important to note that the current legislation does not explicitly include veganism or vegetarianism, but it may lead to precedent-setting decisions in the future.
If the Commission does recognize veganism under the creed protection, vegans would have a legal right to accommodation in instances where they are being excluded or discriminated against. In addition to food choices, this could include cases where employees refuse to wear a work uniform made with an animal-based component such as a leather or certain soaps and cleaning products.
The OHRC’s response:
Renu Mandhane, chief commissioner for the OHRC, was quoted in a recent National Post article: “We did hear from (vegan and animal rights groups) and I have a lot of respect for their advocacy… but in framing the definition, that is not the group that we were attempting to address. That’s not to say the tribunal might not find… in a certain instance for that to qualify as creed,” said Mandhane. “But that wasn’t where we were going.”
“Somehow this has been spun out to suggest that our policy says that ethical veganism is a creed, which it doesn’t,” she said. “The tribunal is the place to make these decisions because its decisions are made based on facts.”
"Instead, the aim was to provide an update that hedged against growing religious persecution in some areas, particularly against Muslims, and to make it more inclusive of, for example, atheists or those who practice an indigenous spirituality."
What will this mean for your workplace?
Even though the Human Rights Tribunal has yet to rule that veganism as a protected belief system under creed, this issue does raises some question about how accommodating – whether in an official or unofficial capacity – your workplace is regarding the needs of employees with non-traditional beliefs, including vegans.
This could mean altering your work uniform to avoid using any animal by-products or offering vegan options in your workplace cafeteria or restaurant. Even if this is not legally required, a benefit could be improved employee morale and the perception that you are responding to the changing needs of your workforce.
What do you do to cater to the needs of vegans or non-religious beliefs in the workplace?
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With Valentine's Day approaching, we've been thinking about romance in the workplace and how it can impact your organization.
Office romances can be a headache for employers, leading to water cooler gossip, accusations of favouritism (especially if there is a love connection between people with a reporting relationship), and even the risk of a sexual harassment complaint. But managing the situation with proper policies and sensible management techniques can keep love in the air without negatively impacting your business.
Policies help set the ground rules:
Don't wait until after romance has bloomed before tackling this topic with your employees. Ensure that all team members are aware of your expectations for acceptable behaviour, along with what types of behaviour would be considered harassment, by having clearly written employee policies. Clear Path's Anna Aceto-Guerin shares:
"Written policies send the message that employees should not let romantic relationships affect the professional work environment. They will also clearly define what type of behaviour is inappropriate and what they should do about it if they are being harassed."
Cupid's arrow doesn't justify a drop in productivity or professionalism:
Senior HR consultant Margaret Sullivan Williams adds that managers have the right to demand productivity from their workers, regardless of their romantic situation:
"When a relationship distracts from the workplace's goals and undermines the effectiveness of the involved employees, it has gone too far. Managers need to sit down with both employees and clarify the expectations of the workplace with regards to romance. Or encourage them to get a room - after work!
Your company may be liable for an employee's harassing behaviour:
Not all expressions of romantic interest are welcome or appropriate, particularly in the workplace. Some of these actions could even lead to legal issues for your company.
In 2010, the Ontario government expanded the Occupational Health & Safety Act with Bill 168 which placed explicit obligations for employers to protect employees from workplace violence and harassment. Failing to take concrete steps to prevent harassment, including sexual harassment, can leave employers to potential fines and charges.
In 2015, Kathleen Wynne's government launched a high profile campaign to raise awareness of sexual harassment and violence, called "It's Never Okay." In October, it introduced legislation that added additional obligations for employers, including the duty to ensure that any complaints are appropriately investigated.
Don't oppose, disclose!
Some workplaces have debated restricting office relationships. However, the reality is that this would likely drive any employee relationships "underground" and not shield you from potential issues.
Your best precaution is to require those involved to disclose that they have entered into a consensual romantic relationship to management. This allows for confirmation that the relationship truly is consensual and offers the opportunity to inform the two parties of your workplace harassment/sexual harassment policies, how to report complaints and most importantly expectations around conduct while in the workplace environment.
Clear Path's Michelle Strassburger explains:
"It's all about disclosure. Office romances don't always cause a conflict. However, ensuring that a reporting relationship does not exist is paramount to guarding against potential complaints of preferential treatment or sexual harassment."
Avoid the legal ramifications often associated with workplace relationships by planning ahead and providing your employees with guidelines and education on the topic of office romance in your workplace before Cupid’s arrow strikes.
Looking for advice on how to handle an employee situation or how to establish HR policies for your workplace? Contact us today.
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Cambridge, Ontario N1T 2B9
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