CLAIM your RIGHT WORKERS COMPENSATION in Ontario Your Your How to Rights Restrictions Fight Back CAW
Dear Brothers and Sisters: Buzz Hargrove You have the right to workers compensation if you are injured at work or if your injury or illness arises out of your work. This can include anything from a broken bone, to muscle injuries resulting from repetitive work, to diseases like asthma or cancer from toxic exposures at work. Over the years workers have fought for recognition and better compensation for their workplace injuries. Through demonstrations, organizing campaigns, work refusals and occupations, injured workers have, step by step, gained greater rights. But since 1995 in Ontario, workers compensation rights have suffered a major setback. The Harris government passed Bill 99, the Workplace Safety and Insurance Act, a complete rewrite of the Workers Compensation Act. This gave companies greater power to stop claims for workplace injuries. As a result, employers are using changes in the law to intimidate injured workers to lower their costs. They even changed the name of the Board. It s now called the Workplace Safety and Insurance Board (WSIB) instead of the Workers Compensation Board. It is important that you know your rights and that you organize to change things for the better. In solidarity, Buzz Hargrove President Jim O Neil Jim O Neil Secretary-Treasurer
A N A D I A N CLAIM your RIGHT WORKERS COMPENSATION in Ontario Your Your How to Rights Restrictions Fight Back AUTO WORKERS
DEFINITIONS Workers Compensation Board (WCB) is now the Workplace Safety and Insurance Board (WSIB) The Workers Compensation Act is now Bill 99, The Workplace Safety and Insurance Act Union representative: Each CAW Local Union has a person designated to represent members with workers compensation issues and appeals. In some local unions, there is a person selected by the union at your workplace. This person may be called a benefit representative or a workers compensation representative. In other local unions, the person may be a local union officer, such as the local union president or financial secretary. If you need advice with a workers compensation claim, contact your local union for the name of the union representative who looks after this issue. 4
5 i n f o r m a t i o n for workers
What you should do if you are injured at work Report your injury. You are now required by workers compensation law in Ontario to file a claim for compensation within six months of the date of your injury. If you do not file a claim you will not receive compensation. The six months time limit does not apply in the case of an occupational disease. Report every injury and illness you suffer at work, no matter how insignificant they might seem. Your employer has no right to intimidate or discipline you for reporting an injury. If your employer tries to persuade you not to report an injury keep a record of the occasion: names, dates, what was said, etc. And talk to your CAW union representative. 6
You have rights use them! You are required to inform your employer of when you will be able to return to work and must co-operate if your employer provides you with a suitable job on your return. The only medical information you are required to give your employer relates to the kind of tasks you can or cannot perform upon your return to work. If you have any problems with this requirement ask your union representative for assistance. 7 Return to work If your claim has been accepted by the Workplace Safety and Insurance Board (WSIB) formerly the Workers Compensation Board you are required to report any change in material circumstances. This includes any change in your medical condition, income or availability for work or rehabilitation. You will receive benefits only if your employer cannot provide you with suitable work after your injury or illness. You have 30 days within which to appeal any decision by the WSIB regarding your return to work or retraining. Your employer may do everything possible to prevent you from getting workers compensation benefits. Upon your return to work he or she might offer you such jobs as counting paper clips or sitting in the cafeteria. By doing so your employer saves money in his WSIB assessments.
Back at work Don t refuse any job you can do, no matter how foolish it may seem. Report the job you have been offered to your union representative. Insist that your union representative be present at meetings with your employer. Insist that your employer put down in writing the details of any modified job offered to you. Review all job demands with your doctor. You must protect your health. Learn about your right to refuse unsafe work. You have a right to refuse unsafe work if it will put you or another worker at risk. If the WSIB or your employer overrule your doctor s advice regarding the kind of work you can perform, notify your doctor and your union representative immediately. Your union representative may want to notify the College of Physicians and Surgeons of your case. The College can support your doctor s recommendation, thereby increasing its legitimacy. Seek union representation. As a member of the CAW you have the right to grieve any discipline or other discrimination which results from your injury or illness. If you suspect that you are being discriminated against contact your union representative. 8
How to file a Workers Compensation claim Report any injury to your employer. Remember that a workplace injury can happen instantly or develop over time. For example, you can hurt your wrists by performing a repetitive motion over a period of time or can acquire breathing problems through exposure to harmful substances, also over a period of time. When you report an injury to your employer take notes of the occasion. Remember to record all dates relevant to your injury and your report. Get the names of co-workers who witnessed your injury. If no one saw your injury when it happened make sure to tell a co-worker of it right away. Report your injury to your employer and then see your family doctor. If sickness and accident benefits are included in your collective agreement, file for them while waiting for your workers compensation claim to be approved and for your WSIB cheque to arrive. 9
Workers Compensation Forms Functional Abilities Form (FAF) Under the new workers compensation law you are required to authorize your doctor to fill out a FAF (Functional Abilities Form). This form specifies what kinds of work you can and cannot do: in other words, FAF your restrictions. If you do not authorize your doctor to complete this form you will not receive workers compensation. The only authorized FAF form is the one provided by the WSIB. This is the only form your doctor is required to fill out. Companies are making up their own FAF forms. Do not authorize your doctor to fill out any form other than the one specified by the WSIB. A copy of the FAF is sent to your employer. The following are other forms that have to be completed. All of them are described in detail below. Form 7 is filled out by your employer. Form 8 is filled out by your doctor. Form 6 or Form 1492, which you can get from the WSIB or your union representative, is filled out by you. Form 7. This is the form your employer is required by law to fill out when you report an injury or illness. Your employer is required to provide you with a copy. On the second page of the form and below the section in which your employer fills out his version of your injury or illness there is a signature box. It is here that you authorize your doctor to fill out a Functional Abilities Form (FAF). According to the WSIB, your signature on this form does not mean that you agree with your employer s version of your injury or illness. If you prefer, you may fill out the FAF authorization for your doctor on one of the other WSIB forms. Read carefully and make sure your employer has accurately reported the details of your injury or illness and of Form 7 your wages, inclusive of all monetary benefits. Write to the WSIB and report any mistakes in the form. Also report any retroactive pay increases received by your coworkers after you were injured. Such increases 10 may or may not be included in calculations of your workers compensation benefits.
Form 8. This is the form that your doctor sends to the WSIB. Make sure that your doctor enters the details of your accident the way you remember them. Make sure that your Form doctor makes a note 8of each part of you that was injured. Form 6. This is the form that you fill out. You can begin a workers compensation claim by submitting this form to the WSIB; or the WSIB may send you this form to obtain more information, if a Form 8 or a signed Form 7 has been submitted. This form is available from the WSIB or your union representative. If you have trouble filling out this form contact your CAW union representative for advice and help. Make a photocopy of this form. You are also required to give a copy of this form to your employer. Form 6 11
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13 i n f o r m a t i o n for activists
In Mike Harris Ontario workers rights have been reduced to increase the profits of corporations. The inevitable consequence of this action is a deterioration of health and safety in the workplace: more injuries at work and more workers suffering. We have to do everything possible to assist injured workers and to organize to change laws and legislation. Every injury demands attention and is a reason to organize. Wherever possible we have to use Bill 99, The Workplace Safety and Insurance Act formerly the Workers Compensation Act and our collective agreements to protect our members. We must also exert political pressure on the WSIB and the provincial government to improve workplace conditions and workers compensation. While assisting an injured worker, document his or her entire workers compensation case for organizing purposes. Report all workplace problems to the local union leadership and to the members. Key points to remember Workers must report every injury as soon as it happens and every illness as soon as it is discovered. There is no such thing as a minor injury or illness that can be ignored. This is especially important. An injury or illness may become a permanent disability or may recur. Section 22 of the Act requires that a worker shall file a claim as soon as possible after the accident... but in no case... more than six months after the accident. This time limit does not apply in the case of an occupational disease. It is against the law for any person to persuade a worker not to report a work related injury or illness. Some employers have been prosecuted and have received large fines for violating this law. As of January 1, 1998, all claims, regardless of the date of injury, are subject to time limits on the right to appeal: 30 days if the decision on the claim involves a 14 return to work and 6 months for everything else. Advise all injured workers that if they are concerned about how their
claims have been treated they must appeal as soon as possible and supply the reasons for their concern. (Section 120 (a) (b)). Injured workers must report any change in their medical condition, income or availability for work or for rehabilitation to the WSIB. Section 23(3) penalizes a worker who does not report a material change in circumstances within 10 days. Failure to report can lead to fraud charges. Workers are required to remain in contact with their employers and to keep them informed of developments. Employers are also required by law to contact workers and to provide them with alternate work. Employers may use these provisions as an excuse to harass workers. You must not let them do this. Ensure that workers co-operate with their employers but get involved if employers start to harass workers. Workers are expected to return to work if suitable employment is provided for them. This is true even if a worker is not fully recovered from an injury or illness. Employers are offering all sorts of jobs, from sorting screws to sitting in the cafeteria, 15 in order to avoid the costs of a workers compensation claim. The WSIB claims that it opposes this kind of accommodation. Document these cases and report them to the WSIB.
All workers compensation benefits will be calculated on 85% of the difference between pre-accident earnings and a worker s present earnings from suitable employment, regardless of whether or not such employment is available (Section 43(2)). All benefits can be suspended if the WSIB determines that a worker is not co-operating (Section 43(5)). Advise workers to co-operate. Apply the principle of work now, grieve later. However, ensure injured workers are not asked to do any task outside their medical restrictions. Grieve and/or report such violations to the WSIB. Advise workers of their right to refuse unsafe work under Section 43 of the Occupational Health and Safety Act (or Part 2 of the Canada Labour Code if the workplace falls under federal jurisdiction) and demand a proper investigation. Document all cases there will likely be a lot of them. Employers cannot discriminate against and must accommodate injured workers. However, the WSIB takes a hands-off attitude towards these issues and leaves their resolution to the workplace parties involved. If employers do not provide alternate work they will have to provide financial assistance to injured workers while they look for alternate employment. This is covered in the Labour Market Reentry Plan provided through the WSIB. All offers of modified work should be documented in writing. If you or the injured worker involved believes that the work offered is unsuitable, demand an ergonomic assessment of it and contact the nearest Occupational Health Clinic for Ontario Workers (OHCOW) for assistance. Confirm the injured worker s medical restrictions with the worker s doctor and the OHCOW doctor, if necessary. 16
17 Bill 99 gives the WSIB extraordinary powers over workers health care (Section 33(7)(a)). Benefits can be stopped if injured workers do not co-operate with the WSIB s decisions. An employer can demand that a doctor of his choice examine the health of an injured worker. If the worker objects the employer can, within 14 days, request the WSIB to order the worker to attend the examination. Always advise a worker or workers to object to employer ordered medical examinations. This is their right under Section 36 (2). Bill 99 excludes compensation for chronic stress and may restrict entitlement for chronic pain. Workers may have a right to sue in these cases. Ask for legal advice. There will be greater scrutiny of soft tissue injuries, leading to more delays in claims. Recurrences are often not recognized, unless there is new measurable organic damage. Workers injured before January 1, 1998, will continue to receive benefits as before but cost of living adjustments will be substantially cut. Appeals are subject to time limits and reviews of benefits and vocational rehabilitation will be determined under Bill 99.
Tactics to fight back Under Mike Harris workers compensation has regressed a long way. But we have never gained compensation rights without a struggle. With the increase of injuries in the workplace because of the government s regression we have a duty to fight back and to organize for change. Our primary obligation is to represent our members to the best of our ability under the existing workers compensation law. We must also use collective agreements to improve workers compensation and working conditions. But these are not our only obligations. Further, we must exert pressure on employers and political pressure on the WSIB and the government to persuade all of them to change. 18
There is a duty to accommodate injured workers under the Workplace Safety and Insurance Act and under the federal and provincial Human Rights Codes. The Collective Agreement Arbitrators must take these laws into consideration when interpreting collective agreements. Unfortunately, the requirement to return injured workers to their jobs is limited under these laws. For instance, the Workplace Safety and Insurance Act states that employers are not obliged to provide employment for injured workers after two years from the date of the initial injury. Time limits and requirements are not as strong as they should be. However, under the Human Rights Codes a worker injured at work is considered disabled and there are no time limits on an employer s duty to accommodate disabled workers. You should grieve if an employer refuses to accommodate an injured worker, even if the collective agreement has no language covering accommodation. Injured workers often have to wait for long periods of time before their claims for workers compensation are accepted, particularly if they are forced to appeal a negative WSIB decision. If a collective agreement does not contain language to support an injured worker s claim to sickness and accident benefits, while waiting for approval of a workers compensation claim, you should attempt to negotiate the addition of such language in the agreement. Obtain a copy of the CAW s Model Contract Language on Health, Safety and the Environment to assist you in developing proposals for collective bargaining regarding the 19 employment of disabled persons and the confidentiality of health information.
on employers Applying pressure Pursue employers if they are not providing accommodation for injured workers, if they are intimidating such workers or if they are appealing WSIB decisions to make life difficult for such workers. You should publicize these issues with the membership. Create support with group grievances, petitions and demonstrations. Employers will take notice of such actions which have the support of enough workers. 20
Applying political pressure To build political pressure on the WSIB and on the government it is important to document all details and stages of a workers compensation case and to gain the support of the membership for your fight. Educate members on the number of accidents occurring in their workplace and of the injustices thrust on their injured brothers and sisters. Make these issues public by writing in the CAW Local Union newspaper and filing reports at membership meetings. It is important to present these issues with a human face. Encourage injured workers to tell their own stories to the membership. Apply pressure on the WSIB by documenting and presenting to it cases of failure to accommodate, unjust policies, company harassment and the hardship of injured workers. Demand answers to all of these issues from the WSIB. And make its answers public. Another action you can take is to report an employer s violations, intimidation and other unfair practices to the WSIB Special Investigations Branch by calling 1. 888. 745. 3237. When you call you are not obliged to give an injured worker s name or any other personal information regarding him or her. The WSIB says that it will investigate all complaints. After making the call, follow the case to see how it is handled. Report any interference with an injured worker s doctor or any failure to respect the recommendations of the worker s doctor to the College of Physicians and Surgeons. Request meetings with the local MPP regarding issues you have raised with the WSIB. Lobby to build political pressure on Conservative MPPs and build support for friendly MPPs, who are willing to support your issues. Work with injured workers organizations in your community. Invite them to speak at member- 21 ship meetings. Support their lobbying efforts. Devise with them joint strategies.
Union representatives who need advice dealing with a member s claim can call: CAW Health & Safety Department 1. 800. 268. 5763, ext. 558 Need help? Office of Workers Advisor Tel: 1. 800. 435. 8980 (Note: The OWA cannot, by law, provide direct representation for a worker who has a union.) OHCOW CLINICS Toronto Clinic 15 Gervais Drive, Suite 308 Toronto ON M3C 1Y8 Tel: 416. 449. 0009 or Toll Free: 1. 888. 596. 3800 Hamilton Clinic 848 Main Street Hamilton ON L8M 1L9 Tel: 905. 549. 2552 or Toll Free: 1. 800. 263. 2129 Sudbury Clinic 1780 Regent Street South Times Square Mall Sudbury ON P3E 3Z8 Tel: 705. 523. 2330 or Toll Free: 1. 800. 461. 7120 Windsor Clinic 547 Victoria Avenue Windsor ON N9A 4N1 Tel: 519. 973. 4800 or Toll-Free: 1. 800. 565. 3185 Sarnia-Lambton Clinic 171 Kendall Street Point Edward ON N7V 4G6 Tel: 519. 337. 4627 22
Thanks to the Ontario Federation of Labour for permission to use their photographs in this publication.
CAW TCA CANADA Canadian Auto Workers Produced by: CAW Health and Safety Department 205 Placer Court Toronto, Ontario M2H 3H9 Tel: 416. 495. 6558 or 1. 800. 268. 5763, ext. 558 Fax: 416. 495. 3785 E-mail: cawhse@caw.ca Web: www.caw.ca/departmts/hs_e.html