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Workers’ compensation claims have climbed during the pandemic: Employment lawyer

Carissa Tanzola, Filion Wakely Thorup Angeletti LLP

As for Canadian Lawyer Mag:

Ontario’s Workplace Safety, and Insurance Board is dealing with 25,000 claims related to COVID-19

The COVID-19 pandemic has added to Workplace Safety, and Insurance Board claims, as well as changing the way they are processed, says Carissa Tanzola, partner with management-side employment law firm Filion Wakely Thorup Angeletti LLP.

Tanzola says about 25,000 claims related to COVID-19 have been filed with the board, which deals with workers’ compensation claims in Ontario, since the pandemic's start in early 2020. Many of these claims are related to workers at nursing homes, residential care facilities and other healthcare-related workplaces. But there are also claims from the agricultural sector.

“It’s not surprising that you’d see claims from people in those lines of work,” Tanzola says, noting that these are jobs that either required working in closed workplace settings or dealing with people who could potentially expose them to the virus.” Tanzola is one of the panellists discussing these issues at the Workers’ Compensation Claims – Best Practices and Trends webinar on June 23rd, noon ET to 1 pm.

She says that typically each of these claims is looked at on a case-by-case basis. But the one characteristic each claim requires is a COVID-19 diagnosis with symptoms. Awards and benefits are not given for quarantines or self-isolation or if the employee is asymptomatic or has a negative COVID test.

Once someone is diagnosed with the virus, Tanzola says there will be an assessment of the nature of the job and whether they are put at greater risk than the general public. There will also be an analysis of who else in the workplace has come down with COVID.

Tanzola notes that the evaluations are no different than other workplace injuries or exposures. But the additional cases, on top of the more typical workplace injuries pre-COVID, means the WSIB is “extremely busy.”

Another issue related to claims is how to handle cases of injuries while employees are working from home. The question, she says, is when is an injury at home a workers’ compensation claim, and when is it not. Tanzola says one criterion might be looking at the nature of the injury. Getting tangled up in your dog’s leash while letting it out the patio door while working at home is a different set of circumstances than a home office not being set up correctly and thus resulting in a musculoskeletal injury. That latter case could be a workplace injury, Tanzola says.

Fifteen months into the pandemic, Tanzola says the WSIB has managed to deal with the increased number of claims under work-from-home conditions. The processing at first was slower, but behind the scenes, Tanzola says, the WSIB has done a lot of work to come up with virtual and online systems and have case managers have been successfully working from home.

“A really good job was done, given the circumstances, in changing the processes to keep the organization moving in a way that deals with the COVID protocols.”

One crucial change was the digitization of files, something that is “huge” for dealing with compensation claims and appeals that in the past were paper-based and could be three inches thick or more. Now the documents can be emailed as a PDF.

Another change the WSIB has made is moving to virtual hearings for appeals. Typically, the appeal hearing process was done in person unless there were extenuating circumstances. “People are adjusting to a virtual hearing world.”

Tanzola says she hopes many of these innovations remain after the pandemic, especially the electronic document system. “As long as there is accommodation for those who don’t, for whatever reason like [or can’t use] the PDF system, having access to digital documents is very useful.”

Outside the changes related to COVID-19, Tanzola says another development in dealing with WSIB claims is recognizing chronic mental stress as a reason for compensation.

Since the 1990s, the WSIB recognizes that traumatic stress related to a particular event at work is a compensable injury. More recently, the WSIB has recognized that chronic mental stress over an extended period is also a compensable claim, if the chronic mental stress was related to the workplace and a predominant factor in an accepted clinical diagnosis.

A personality conflict with management or co-workers will likely not be deemed compensable, Tanzola says. “It’s really reserved for situations like bullying in the workplace or harassment that you would not reasonably expect in the workplace,” she says, and wouldn’t be compensable if the stress emanates from the nature of the job task itself.

In dealing with management/employer clients, Tanzola says she reminds them that they “can never forget” their human rights obligations. They are legally required to attempt to find reasonable accommodation to help an employee return to the workplace. And both employers and employees must do their best to work together to prevent workplace incidents from happening in the first place, whether that means enhanced safety measures, training, or any other method to ensure a safe environment.

Original Article: Canadian Lawyer Mag

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