In our last blog, we discussed the Mock Trial presented at the recent WSPS Partners and Prevention Conference which told the story of Billy Bonka's shipper receiver, David and his altercation with Taste-piration's truck driver, which resulted in a workplace violence incident . In today's blog we will further discuss the challenges facing Bill Bonka as they head into court to defend their charges laid by the Ontario Ministry of Labour.   After investigating the details of the case, the Ministry of Labour laid charges against both Billy Bonka Confectioners Inc. and David's supervisor, Brian Mercer.



Billy Bonka was charged with three counts against the Ontario Occupational Health and Safety Act. After their shipper/receiver, David was attacked; he couldn't find reception from his cell phone in the storage facility.  As part of their Bill 168 implementation, this had been deemed as the only means of summoning assistance, when employee were in the external storage facility. Billy Bonka Confectioners was subsequently charged with failing to take the reasonable precaution of ensuring its procedures for summoning immediate assistance were in place, should a workplace violence and harassment incident occur.   It was revealed that Billy Bonka's operations manager Brian was approached by David,  Billy Bonka's Shipper/receiver regarding several  threatening text messages from Taste-piration's truck driver, but Brian chose not to investigate further. This resulted in a further charge to Billy Bonka of failing to implement an effective workplace harassment program to prevent, or minimize, the chances of workplace violence and harassment from occurring. Lastly, it was also revealed that Brian, Billy Bonka's operations manager, was informed about Taste-piration's truck driver's violent altercation which occured at a company holiday party with another worker and which resulted in criminal charges being laid.  Again Brian and Billy Bonka management decided not to mention anything to David the shipper/receiver. For that, Billy Bonka  was charged with failing  to provide information that is related to reducing the risk associated with workplace violence and injury to their workers.

Interestingly, not only was Billy Bonka, as a company, charged in this case, but Brian Mercer, Billy Bonka's operations manager was also individually charged for two breaches to the Ontario Occupational Health and Safety Act. Brian was charged for not implementing the workplace harassment program and withholding information from David associated with the risk of meeting with the truck driver.

Unfortunately, the mock trial judge did not provide us with a final verdict.  He did however indicate that the company, Billy Bonka, did not appear to have done everything that was reasonably necessary to ensure the safety of their workers.  So, as an employer, supervisor, boss, or HR manager, what would you have done?  Would you have taken the necessary steps to avoid workplace violence and harassment? As you can see from the outcome of this case, not only was the entire company fined, but managers can also be individually fined for breaching the OHSA.   How do you avoid this kind of situation in your workplace?  Not sure where to start when it comes to Bill 168? 

To assist employers in ensuring that they have complied with the legislation and minimize their risk, our experts at Clear Path have prepared a do it yourself package which walks you through the list of required actions for employers to take which will help prevent as well as limit their liability if an incident does happen to occur in your workplace.  Those steps are as follows:

1. Regularly (at least annually) perform a risk assessment to determine risk of workplace violence
2. Develop written policies on workplace violence & harassment and communicate them to  your workers
3. Create and communicate procedures, particularly related to reporting an incident and summoning emergency assistance.
4. Disclose an individual's history of violence where workers are likely to encounter that person in the course of their work or if there is a potential risk of physical injury
5. Train your employees! Help them understand the company's obligation under this new legislation, in terms of disclosure of a history of violence but also the risk of liability companies now face.

Still not sure where to start?  Join us on June 14th when we revisit Bill 168 and discuss how to prevent workplace injury in our upcoming workshop How to Perform a Bill 168 Risk Assessment, being held at the Cambridge Chamber in Cambridge.

Imagine a situation where your co-worker got seriously injured by an outside party ... a subcontractor? an employee's spouse? their friend? your supplier? Many questions might initially pop into your head. How did it happen?  What do I do? And given the new Bill 168 legislation - what does this mean for our liability?  

Bill 168 is an Act passed on June 2010 to amend The Occupational Health and Safety Act of Ontario with respect to violence and harassment in the workplace. It is defined as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome". An employer or supervisor is required to take all the necessary steps to limit the chances of workplace violence and harassment from happening!

There haven't been any cases to flow through the courts yet to help us determine the prudent steps to take in this kind of situation.  Anna Aceto-Guerin had the opportunity to attend the Mock Trial at the Partners in Prevention Convention this past month and shares the hypothetical, yet very realistic, case.  The following is a summary of the events for you.

The employer is Billy Bonka Confectioners Inc., a candy company located in Carmel Ontario, who offers a wide variety of sweets and chocolate. David is Billy Bonka's Shipper/Receiver who is responsible for taking care of the delivery of supplies. Billy Bonka orders supplies from Taste-piraton who delivers the liquid sugar Billy Bonka needs to produce their sweets. As Billy Bonka's storage warehouse fills up, the surplus in orders will be delivered to an outside warehouse about 150 feet from the main factory. After a delivery problem with Taste-piration's tanker trucks, they started storing any excessive amount of liquid sugar to Billy Bonka in this storage facility. As a result, David, Shipper/receiver for Billy Bonka had to make frequent trips from the factory to the outside warehouse to receive Taste-piration's deliveries. David maintains contact with Taste-piration's truck driver to schedule the delivery time needed to make the necessary exchanges. The problem starts when the truck driver begins to deviate from their scheduled delivery times. On the day of the incident, after arriving an hour late to their planned delivery time, David complained to the truck driver about his lack of timeliness. As a result, the truck driver grabbed David, threw several blows to his head, and then drove off. David managed to travel back to the factory when his supervisor, Brian Mercer, called 911 for the ambulance and the police.

Let's take a look at those questions. How did it happen? Taken directly from the summary; there was an argument between David and the truck driver which lead to the truck driver's physical altercation. What liability will Billy Bonka have in this scenario?   In the Mock Trial the company was charged with 3 offences including failing to ensure immediate assistance, failing to implement a workplace harassment program, and failing to provide information to a worker; the operations manager was charged with 2. Is there liability on the part of Billy Bonka or their employee?... the truck driver DID deviate from the arranged delivery time, physically grabbed David, and then assaulted him. Many would blame the Taste-piration's truck driver...but now with Bill 168...it's not that easy.

Now, let's reveal some more details about this case.

In the court proceedings, we learn that Taste-piration's Driver had been sending several emails to Billy Bonka's Shipper/receiver that was of a belligerent and derogatory nature.  Also Billy Bonka's Shipper /receiver had mentioned to the Operation manager that he had received emails but the manager did not ask to see them nor did he attempt to deal with them in any way.  Billy Bonka's Operations Manager has been advised by Taste-piration that the truck driver had a prior criminal conviction for assault when he assaulted another employee at the holiday party.  Both parties had been drinking at the time. The Operations Manager, however; did not advise David about these circumstances. Also, the main way of summoning assistance for Billy Bonka employees that need to be in the storage facility was via their cell phones. Just as David lifted himself up after the attack, he grabbed his cell phone to call the factory for help but couldn't receive a signal.

As we mentioned 3 charges were laid to the employer and 2 for the Operations manager. What would you do if you are the human resources manager or the company facing these charges with potential monetary penalties and potential jail time?  What would you do? Stay tuned as we conclude this blog with the verdict and details of the proceedings of the case, but for now, do YOU think this company and their operations manager are liable?

Taking all the right steps but STILL struggling to increase employee morale? Having a difficult time creating a fun AND productive office environment? On a tight budget and can't afford increasing salaries or spending a lot of money? It can be frustrating trying to establish a recognition program that fits your employees. At Clear Path Employer Services, we say thank you and try to show our appreciation in many ways.  We make an effort to consistently catch ourselves and other people doing things right. The ideal reward system should be enjoyable, effective, and it shouldn't hurt your wallet! So how exactly do we create a system that consistently rewards employees in a fun and interactive way? The answer is... CREATIVITY! Think outside the box to boost your employees' motivation to work. Your employees will appreciate the effort and have fun along the way! To help we have put together a list of the top five creative and unusual ways a company can recognize their employees!

Number 5: Pass the buck

Pass the buck is a fun technique used to increase motivation and customize the employee rewards. This consists of giving some sort of token to the employee who accomplished the company's objectives. The employees will collect these tokens and cash-in for bigger prizes. Remember to be creative! Tokens may consist of play money, stickers, or even company pencils. Prizes may include a longer lunch break or choosing the next social event!

Number 4: Office musical

Recognize an employee's effort by surprising them with a song during the work day! Be sure to keep tabs on your employees' favourite songs or even write a song of your own. Ask other co-workers to join in the celebration and compliment your singing with some dance moves!

Number 3: Make a collage

Take the time to create a collage of photos and information about the employee and their growth within the company. Remember to be creative; include personal photos, office photos, and previous accomplishments! Call a team meeting at the end of the day and present your collage to the office!

Number 2: Pass on the praise

"Pass the Praise" works by establishing a rule that if an employee hears any positive comments about another employee (let's say... a great sale day or huge promotion), they will forward the information to two or more employees within the company. The two employees that received the information will forward the same information to another two employees each. This will cause a chain effect where that positive comment is spread across the office and the employee is recognized throughout the company!

Number 1: Sticky note their desk!

Number 1 on our list and a very creative way to recognize your employees is to cover their desk with sticky notes! Arrive at the office an hour before work starts and pile sticky notes of their desk recognizing them for their accomplishments!

Keep in mind there are many ways to appreciate your employees without spending a lot of money. Consistently showing appreciation will increase employee morale, increase productivity, and lighten up the office's atmosphere. Remember to be creative and think outside the box!

Dealing with a difficult WSIB claim is time consuming and frustrating!  What makes a WSIB claim difficult? Typically there isn't just one thing but rather a variety of issues including a significant physical injury being compounded potentially with a subsequent mental health related issue, claims from workers that are "repeat offenders" (someone who has had more than one claim over time, or has more than one claim at the same time), a WSIB case manager that is not helpful, a worker who is putting up barriers to return to work or it could be a combination of all of these issues.

Claims which we consider to be "difficult" are typically also very costly in terms of your WSIB NEER costs, but also the time spent managing them.  At Clear Path when tackling our difficult claims we use specific tried and true strategies.  These strategies help us to determine the best course of action to find resolution for our difficult claims and contain costs. We like to call these the "Essential 4" kind of like the Fantastic Four, but better!

Objection

Why object?  You may be objecting to a claim because you find it suspicious due to the fact that there may have been a delay in reporting, no medical treatment was sought, maybe there is no compatibility of injury to accident or the worker is just not cooperating with RTW efforts. Always make sure your objections are in writing, quote WSIB policy where possible to back up your argument, and investigate your concerns immediately to obtain witness statements and collect all your evidence.  To really be heard by WSIB, base your argument on facts not feelings.

SIEF Cost Relief

If you can't get the claim or entitlement denied, then SIEF may be the next best thing! SIEF or Secondary Injury Enhancement Fund is a cost relief program that reduces claim costs for employers. SIEF does not impact benefits paid to the worker. To obtain SIEF cost relief, understanding the medical information on file is critical, knowledge of previous claims and non-occupational health issues will also help to support your request.  If the recovery period resulting from an accident becomes prolonged, and you believe it is due to a pre-existing condition consider using a third party professional to assess medical information. Assess the file in terms of accident history to determine if the accident would have caused a disability or injury, and then make your argument in writing to the WSIB, again quoting policy and providing the supporting medical information you have obtained.

RTW

The key to success in a Return to Work plan is that it is agreed upon by all participants - the worker, treating physicians, the WSIB and that the modified work or hours are always offered immediately and then follow up with a written plan.  The plan should be tailored to the worker's restrictions and have a defined weekly schedule with an "end in mind".   Address cooperation and performance issues immediately, and regularly review to monitor effectiveness and adjust the plan as necessary.

Medical Management

More and more medical management of a claim is becoming a critical strategy in reducing claim costs.  Knowing when to ask for new medical, object or question existing medical or ask for an independent medical assessment can mean reducing the claim life significantly.   Consider bringing in an independent medical consultant early on in the claim so that they can speak directly with treating practitioners and analyze medical results. They will also be able to connect with your worker.  The initial confidential call with the worker can help to gather critical information to confirm accident history, current restrictions/limitation, treatment plans and discuss modified opportunities. A medical consultant can be a crucial when investigating difficult or sensitive situations.  An independent medical consultant can ensure accommodations promised are followed through, and be a valuable resource when it comes to challenging board decisions like denial of SIEF with supporting medical opinion.

Unfortunately, the one common thing about difficult claims is they are all different and unique in their own way.  Now that you know the Essential 4 - still not sure where to start?  We are always available to assist with any difficult claim you might encounter be it on a one time basis or as an ongoing part of your claims management team.    To learn more about how your claims management strategies and decisions affect your WSIB costs, join us for our upcoming NEER sessions to learn more.

Are you finding it challenging to obtain SIEF cost relief on your claims? Have you had your requests rejected, even though you have presented clear medical evidence and referenced WSIB policy? According to Policy #14-05-02, SIEF or Secondary Injury Enhancement Fund is awarded when a "prior disability caused or contributed to the compensable accident" or the "period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition".  Either of these situations combined with the severity of the incident will determine the level of SIEF awarded.   It is important to note also, that SIEF does not affect the worker's benefits, but simply reduces the employer's WSIB costs associated with the workplace injury.

Recently we have started to become aware of a trend in decisions involving the allowance of SIEF cost relief to employers, specifically that it is becoming increasingly difficult to obtain. Quite often the process involves at least one or two stages of appeal, even when medical evidence has been presented.

A recent decision (Decision No. 2364/11) at the Workplace Safety and Insurance Appeals Tribunal (WSIAT), illustrates some typical challenges employers are facing when requesting SIEF.

Brief background of the case:

• 50 year old worker injures right shoulder on May 3, 2009 while working as a registered nurse
• Following day the worker visited a walk-in-clinic where she was diagnosed with a trapezius and deltoid strain. Attending physician reported the worker would be limited in the use of her right arm for 8-14 days.
• On May 8, 2009 the worker's doctor reported worker was in severe pain and ordered an ultrasound, and prescribed medication and physiotherapy. The doctor indicated the worker was not able to return to work until June 12, 2009
• Ultrasound identified some thickening of the bursa, but no significant pathology, and remained symptomatic as she continued to seek medical treatment from a chiropractor (later stopped due to pain), and from an orthopaedic surgeon who injected the worker's shoulder with cortisone. As a result of ongoing symptoms and treatment, the worker did not return to work until July 13, 2009 on modified duties.
• Worker applied for compensation benefits, and received Loss of Earnings (LOE) from May 3, 2009 until July 13, 2009 (77 days to recover)
• Employer sought SIEF cost relief on the basis that the recovery period was prolonged due to the presence of a mild-pre-existing condition.
• Case Manager ruled that the employer was not entitled to SIEF relief because notwithstanding the existence of some mild osteoarthritis in the worker's right shoulder that was identified by an MRI, it would appear the worker healed within the usual healing time and the pre-existing condition had no impact on the recovery.

The employer appealed the Case Manager's decision to the ARO, and the request was subsequently denied again due to the fact that none of the medical reports, including the worker's family physician indicated there were any factors significantly delaying the worker's recovery.  The general recovery guideline for this type of injury was 42 days, and while the ARO acknowledged that 77 days was longer than the "guideline", they were still in fact denying the application of SIEF due to the fact that this was only a "guideline", and individuals recover at different paces.  In this case although there was medical evidence presented on the MRI and ultrasound of a pre-existing condition, no medical practitioner validated the findings.

The employer appealed the decision to the Tribunal level indicating in their written submission that the 42 day return to work guideline(Official Disability Guidelines) was in reference to a severe injury, whereas the worker's injury was mild to moderate suggesting that a return to modified duties after 42 days, let alone 77 was not normal.  The Tribunal acknowledged that even though there was no medical opinion commenting on the results of the MRI which indicated  the worker had "AC joint osteoarthritis" that was potentially interfering with the "normal movement of the supraspinatus", the fact remained that the worker injured her shoulder and did not recover as quickly as expected. It was determined that more than likely the osteoarthritis in the worker's right shoulder was a pre-existing condition that manifested after the injury and prolonged recovery. The employer was awarded 25% cost relief from the costs of this claim under the SIEF policy based on a moderate incident and minor preexisting.

What can we learn from this case?

More and more the medical on a file is becoming critical to the allowance of SIEF.  Even more so is an opinion from the medical community to connect the delay in recovery to the fact that the preexisting condition exists in order to allow any SIEF.  Employers need to continue to make these connections if they have any hope of obtaining any SIEF in future.  Given that the current decisions we have been receiving are more and more often denials due to lack of a medical opinions directly indicating a connection between the preexisting and the delay in recovery, we are planning to take this to the top.  If you have any decisions that you feel are unfair, join us!  We are looking for SIEF decisions that don't make sense, where medical exists supports significant pre-existing, there are delays in recovery and the WSIB has denied SIEF cost relief.  If you have one such decision, let us know, we want to bring together as many decisions as possible to present to WSIB to get an understanding of how they are making these decisions and in turn understand how we can get more approved!

Contact Anna Aceto-Guerin by email at anna@clearpathemployer.com 

Source Case: Decision No 2364/11

Celebrate the achievements of your team members to boost morale and retain key employees. The happiness and well being of your employees corresponds directly with productivity, absenteeism costs, turnover and the overall culture of your workplace. Do you find that your employees become easily unmotivated or have low spirits? Sometimes the day-to-day grind can become monotonous. It is important for your company to make sure your employees are interested and appreciated for their work. To avoid losing key employees, and incurring mental health related absence costs, we would like to share 5 tips to boost employee morale in your workplace.

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1. Make the workplace comfortable

Comfort goes beyond aesthetics and ergonomic furniture. Making small adjustments to your lighting scheme or opening blinds to let in some natural light can make a huge impact on employee's energy levels.  Try to avoid having desks face walls and instead have employees facing windows if possible, or another co-worker to encourage teamwork throughout the day.  Be sure to keep the temperature at a comfortable level, and ensure that your employees have the tools they need to do their job. A bonus comfort idea would be to have a supply of coffee and tea's available for consumption, in case someone is struggling with fatigue in the mornings.  They will be grateful for the caffeine boost, and less likely to be absent or unproductive.

2. Encourage Work Breaks

Sometimes people might think the work day will go faster, or they will get more done if they work through their breaks. On the contrary, taking breaks helps avoid burnout and work goes by quicker when you are feeling refreshed and can come back to an assignment with a fresh perspective. If the weather is nice, encourage a walk around the block, or taking a lunch outside if you have outdoor eating areas available. Breaks encourage stepping away from the computer screen and interacting with fellow employees.

3. Recognize and reward employees for good work

It is commonly misconceived that a raise is the only way to show recognition for a "job well done". While employees most certainly appreciate raises there are other ways to ensure your employees are aware you appreciate their work on a regular basis.  If you are particularly impressed with an employee's good work, write a hand written note or verbally acknowledge in person. If you hold monthly team meetings, be sure to highlight individual accomplishments as well as team accomplishments. Not only is it important for employees to receive recognition from their superiors, but their co-workers as well.  In larger organizations an employee of the month recognition or "wall of fame" program offers incentives to other staff members to increase their productivity.

4. Celebrate birthdays and special accomplishments

When employees know that their manager is aware that they have lives outside of work, it makes them feel like a valued member of the team rather than just an anonymous worker.  Most employees appreciate it when their managers, supervisors and co-workers remember their birthdays or acknowledge events such as having a child, weddings and accomplishments of the employee or employee's children. If you have a reason to celebrate-do it!  Bring in coffee or a treat to celebrate, have co-workers sign greeting cards to celebrate occasions or have monthly celebrations gathering employees for a company lunch(i.e. ordering in pizza, Swiss Chalet, Chinese Food, Sandwiches etc).If you are a smaller business consider stepping out of the office for a couple hours to have lunch elsewhere.

5. Encourage Connection

Employees want to work with people that they can relate to, and feel comfortable spending the workday with.  Encourage short discussions, and ask about family, weekend plans, hobbies, interests, TV shows that you watched last night etc.  Taking the time to have a casual one-on-one to ask how someone is doing is a great way to have a brief check in with your employees.  It's less formal and shows you really care.  We also recommend conducting the Clifton's Strength Finder exercise. This activity is a great way to discover one another's strengths and learn from one another. The test is done individually but you can chart the results after to showcase each employee's top 5 strengths.  This is a positive motivator and the results help employee's understand their coworkers' behaviours and personalities.

Bonus Tip!--Have fun!

At Clear Path we believe "that what is fun gets done".  We view life as a journey to be enjoyed and appreciated.  Once in a while throw an office celebration to get everyone together outside of the workplace. Whether it is a holiday party at the end of the year, summer BBQ, celebrating a corporate milestone or potluck lunches. This gives an opportunity for employees to socialize with their coworkers outside of the office.  Employee's participating as a group and fundraising for a charity is also a great way to have fun and work together.

Looking for more information on boosting employee morale? Check out 8 things your employees need most via Inc.com.