Injuries and Disability Management 

The best way to combat occupational injuries and the development of occupational disease is though the implementation of prevention focused initiatives. The financial costs endured by employers and the physical and mental anguish suffered by injured and ill workers can be avoided if sufficient measures are taken in advance by employers to prevent accidents and incidents before potentially dangerous or deadly accident scenarios have a chance to manifest themselves as real industrial accidents or incidents. Two of the primary drivers of occupational injury and illness in Canada remain a lack of understanding of many fundamental health and safety risks as well as non-compliant behavior reinforced by weak or ineffectual supervision.

The desire for cost containment by Canadians has also led this country’s worker’s compensation authorities into new territory administratively including a significant expansion of the ability of worker’s compensation boards to review the safety related performance of public and private employers. Worker’s compensation boards in Canada can now on the one hand act to reward compliant employers with rebates and other performance incentives while on the other act to punish the worst offenders with the threat of punitive rate increases, criminal prosecution or both. Since the recession of the early 1990's the focus of worker's compensation has changed from the provision of mere financial compensation such as regular payments made in lieu of lost earnings or potential lost earnings, to a focus on prevention and a provision of physical, mental and vocational rehabilitation services. Hence a focus on early and safe return to work systems that encourage workers to resume regular job activities is now elemental to the contemporary view of worker's compensation in Canada.
 
Additionally the evolution of human rights legislation in Canada following the introduction of the "Charter of Rights and Freedoms" in 1982 now holds employers to an extremely high standard of responsibility with regard to the well being of injured or ill employees. A wide variety of legislative and constitutional impulses are now in place throughout Canada including especially the "duty to accommodate." This new legal obligation to accommodate the needs of injured or disabled employees remains relatively straight forward in direction and application. The implications to employers are no less straight forward. When faced with an injured or ill employee, especially where that employee was injured on the job, they must be able to demonstrate that every reasonable effort was undertaken, short of undue hardship, to accommodate the needs of such an employee. However, the duty to accommodate has also increasingly become applied to other protected aspects of employment law and constitutional discrimination  protections including an obligation to accommodate cultural, religious, ethnic and gender related differences.

In the cases of corporate occupational health and safety programs, the most commonly applied protected ground requiring a workplace accommodation strategy remains the issue of disability, although several recent accommodation cases have involved other grounds such as the above stated issues of religion, gender and ethnicity. The duty to accommodate is also the reason employers today must do more than simply investigate whether or not any existing job might be suitable for a disabled employee. Under the concept of the "duty to accommodate" issues such as business inconvenience, resentment or hostility from other co-workers, the operation of collective agreements and customer "preferences" cannot be considered at all. When a person with a disability needs preferential measures and other supports in order to continue their work the employer bears a express legal duty to provide such supports to the person with the disability.

There are only three limits to the duty to accommodate including cost, undue hardship and bona fide health and safety factors. Costs can be considered in an accommodation case only where such a cost is unreasonably high or "undue." A cost would be deemed to be unreasonable and hence undue if it were so high that it would seriously impact the continued survival of a business or would act to fundamentally alter the existing business or productivity model. Such costs must be quantifiable and can include costs such as capital and operating costs and the cost of re-structuring. Human rights law recognizes that different businesses have different financial circumstances. What may be an "undue cost" for a small business, may not be undue for a larger one. If the accommodation requires the business to fundamentally change what the business does, that may also be "undue". Health and Safety and factors must also be considered in any accommodation case as the goal of workplace accommdation is not to make the situation worse for a person subject to a disability by implementing a solution that in the end is counterproductive. The fact that legitimate health and safety requirements exist does not in itself preclude the need to accomodate. In many cases existing health and safety procedures and policies can be waived or modified, or replaced by alternative approaches that still provide effective health and safety protections to staff but equally fulfull the need to accommodate protected differences and needs. 

Knaack & Associates

Have significant experience in dealing with workplace accommodation issues whether they involve providing assistance with return to work programs or implementing changes to existing procedures due to the needs of an accommodation case.  

Source of injury information used to compile the chart below:

WSIB Ontario, 2010, Statistical Supplement. 

Disability Management

Knaack & Associates has the experience to assist your organization with the all of your workplace consequence and corporate disability management requirements. We can help your supervisory staff and management team master the often daunting challenges associated with implementing focused early intervention, WCB case management, legislated return to work and workplace reintegration procedures, as well as other similar corporate disability management and workplace acccomodation functions and programs.

The Duty to Accommodate:
The duty to accommodate applies in virtually all cases involving a disability in the workplace even where the impairment is temporary or of short duration. The underlying legal basis of this important principle in human rights legislation and employment law derives from a broad interpretation by the courts of the definition of the concept of "disability.” For example in the province of Ontario the term "disability” is defined as “any degree of physical disability, infirmity, malformation or disfigurement."

Under Canadian human rights legislation an employer bears an express duty to accommodate injured or ill employees. While the duty to accommodate in is not limitless in practice the burden of accommodating injured or ill workers has become a de-facto responsiblity of the employer up to a level of "undue hardship".

When balancing between the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace the arbitrators and the courts generally have sided with the person with the injury. At the same time the duty to accommodate does not oblige an employer to create an unproductive position. In any permanent accommodation, the employee being accommodated must be able to perform the essential job duties of the original existing pre-injury job or a re-structured or newly-assigned alternate position.

Ergonomic Interventions:
Ergonomics is an effective approach to reducing the number and severity of work-related repetitve strain and musculoskeletal disorders (MSD) and injuries.
Ergonomics is the practice of designing equipment, work tasks and work environments to conform to the capability of the worker, to create more efficient work places and ultimately to prevent the development of occupational injuries by employees. A list of the key workplace ergonomic stressors identified include all of the following factors:

• Force
• Repetition
• Awkward Postures
• Static Postures
• Vibration
• Contact Stress
• Environmental Factors

Ergonomic job restructuring is one of the most commonly applied workplace accommodation strategies.

Case Management:
Case management is a planned and organized approach to achieving positive outcomes for injured workers, their colleagues, supervisors and managers and ultimately the employer.

Case management involves a number of key fuctions starting with intiation of a case management file following notification of a workplace injury or illness. Thereafter key activites include assessment and prioritizion, planning and arranging medical and other rehabilitative services followed by regular monitoring to ensure a case is progressing and developing solutions in concert with all relevant internal and external stakeholders where obstructions are localized.  

Return to Work Programs:
A focus on early and safe return to work systems that encourage workers to resume regular job activities is now elemental to the contemporary view of worker's compensation in Canada. Canadians now demand that worker's compensation systems do more than simply dole out "cash for life" payments to sick and injured workers and instead take demonstrative action to eliminate any potential disincentives for injured or ill workers to eventually return to proper, meaningful levels of pre-injury employment.

A return to work (RTW) program outlines the specific procedures that will be used to help an injured/ill worker return to safe and productive work as soon as medically possible. Studies have shown a direct link to reduced lost time injury durations and costs. To be successful a corporate return to work program must be built upon the basis of a co-ordinated effort involving a variety of stakeholders including employees, medical professionals, collective bargaining agents as well as worker's compensation and corporate insurance and benefit providers. While mandated by employment and human rights legislation, corporate RTW programs can actually help achieve a variety or corporate objectives including especially a reduction in the human and financial costs associated with occupational injury and illness. 

Disability Management:
Workplaces in Canada are generally required by their provincial or territorial worker's compensation autorities to maintain and sufficiently fund and manage formal corporate disability management and return to work programs.

These integrated corporate disability management and return to work programs must be available in writing to fully satsify the intent of provincial or territorial worker's compensation statutes and administraive guidelines. As a rule, workplace return to work programs must also identify sufficiently how an organization will address both work-related and non-work-related injuries and illnesses. From a compliance perspective, it is no less important that corporate operational planing and departmental funding mechanisms account for the potenital requirements of an organization's return to work and disability management obligatons.

A standard method with which to establish a cursive annual budget for the purposes of disability management and corporate return to work programs is to count the number of injury related lost time events over a calendar year.

This number is then divided by the total of days that otherwise would have been worked wihtout incident during the year. The result is then multiplied by a factor of 100 to obtain a percentage value. For example, if the total number of lost time absences noted for the period was 124 person-hours and the total time available was 1,550 person-hours, the lost time rate would be 8%. In the case of a payroll of $500,000.00 this 8% would translate into almost $40,000.00. 

 Physical Demands Analysis (PDA):

A Physical Demands Analysis is a systematic procedure to quantify, and evaluate all of the physical and environmental requirements that make up all of the essential and non-essential tasks and components of a specfic job. For the purpose of employee rehabilitation and return to work, the completion of a PDA must be viewed as the analytical “cornerstone” and legal pre-requisite of the  process used to determine compatibility between a worker and a specific job.

Performing a PDA should be conducted jointly by a worker and employer representative knowledgeable about task analysis, and the identification of ergonomic risk factors. If in- house staffs do not have any training on task analysis or knowledgeable in risk factor identification, external consultants should be retained.

The role of PDAs in rehabilitation and return to work process:

  • Communicate the job requirements to WSIB, and health care providers,
  • Provide data for use in job matching and accommodation process,
  • Clarify benefits entitlement (i.e. determining work-related injury, WSIB appeals,etc.x long-term disability decisions
  • Identify suitable alternate work or modified work programs

The role of PDAs in injury and accident prevention program:

  • Identify jobs, work processes, and equipment that require further ergonomic analysis and intervention,
  • Identify and prioritise safety concerns, engineering and administrative improvements 

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