WORKING TOGETHER. Safe Accountable Sustainable

Transcription

1 WORKING TOGETHER Safe Accountable Sustainable Volume One: The Report of the 2013 Statutory Review Committee on Workplace Health, Safety and Compensation

2 Executive Summary The statutory review process offers opportunities for stakeholders to provide feedback this report, the Statutory Review Committee (SRC) has considered how best to improve needs and priorities of key stakeholders workers, employers, and the Workplace Health, Safety and Compensation Commission (WHSCC). The SRC has been mindful of the work carried out in the past decade to bring the system from a financial crisis to a point where financial sustainability is achievable, safety in the workplace has improved significantly, and legislative change through the Occupational Health and Safety (OHS) Act and the Workplace Health, Safety and Compensation (WHSCC) Act has increased accountability for workplace health and safety. The public consultations brought together stakeholders to share their knowledge of the and and Labrador and throughout Canada. The SRC has considered the importance of the collaboration among the workplace parties, employer groups, labour groups, the WHSCC, and the OHS Branch to achieve workplace health and safety; the primacy of prevention of workplace injury and occupational disease; and the value of communication in achieving common goals. The SRC conducted its consultations and deliberations based upon the key themes identified by the WHSCC and the prime stakeholders the Newfoundland and Labrador (NLEC) and the Newfoundland and Labrador Federation of Labour (NLFL): Maximum Compensable Assessable Earnings (MCAE) Financial Sustainability Labour Market Re- entry Medical Management Occupational Disease Prevention (Role of Stakeholders). The consultation process also identified other issues affecting t compensation system. These included the need to focus on early and safe return to work, the importance of efficient internal and external review processes, and the value of effective, transparent governance. The SRC carried out additional research to assess the concerns and the impact of the recommendations made by participants in the consultation process and to identify new approaches to compensation system.

3 Executive Summary The key directions underpinning Prevention Improve training and workplace health and safety through the implementation of additional training certification standards Engage safety sector councils more broadly in prevention Increase collaboration between the WHSCC and the OHS Branch Improve the effectiveness of the OHS Committee Program Claims management Increase education and awareness of the use of disability management guidelines Increase education and awareness of the initiatives to prevent occupational disease in the workplace Early and safe return to work Increase awareness and education of the ESRTW program with the objective of increasing planning and collaboration between employers and workers in the ESRTW program Labour Market Re- entry Ensure the LMR program provides information about regionally relevant occupational classifications to workers Improve key performance indicators for the LMR program Internal and External Review Implement a mechanism to provide a forum for the WHSCC and the WHSCRD to discuss matters of mutual concern while respecting their arms- length relationship Financial Sustainability Enhance the approach to achieving financial sustainability by taking a balanced, long term planned approach to reducing assessment rates and increasing Governance Enhance the statutory review process the continued improvement of the workplace health, safety, and compensation system in Newfoundland and Labrador.

4 Executive Summary In a separate but complementary process, a thorough legal review was conducted to evaluate the WHSC Act and to identify areas where the Act should be amended to tion. The SRC is confident its report provides a blueprint for ensuring the w compensation system is proactive and prevention- focused, driven by stakeholder collaboration and partnership to improve workplace health and safety and financial sustainability. Safe. Accountable. Sustainable.

5 Table of Contents VOLUME ONE: Working Together Safe Accountable Sustainable The Report of the 2013 Statutory Review Committee Acknowledgements i PART ONE: REPORT OF THE 2013 STATUTORY REVIEW COMMITTEE I. Introduction 1 II. Prevention Education and Training Introduction Education and Training for Youth and New Graduates Affordability and Accessibility Training Certification Standards Safety Sector Councils 7 III. Prevention OHS and WHSCC Introduction Organizational Structure of the OHS Branch Collaboration and Coordination Between the WHSCC and the OHS 12 Branch 3.4 Occupational Health and Safety Committees Monitoring Occupational Health and Safety Committees OHS Committee Program 16 IV. Client Management Introduction Client Service and Communications Consultants Privacy and Confidentiality Compliance with the Personal Health Information Act Video Surveillance Disputed Claims 23 V. Medical Management Introduction Use of Guidelines Independent Medical Examinations (IME) 27 VI. Occupational Disease Introduction 29

6 Table of Contents 6.2 Occupational Disease Claims Adjudication Occupational Medicine Clinics Presumptive Clauses Presumptive Clause for Career Firefighters Prevention 36 VII. Early and Safe Return To Work (ESRTW) Introduction Work to Recover (Early and Safe Return to Work) Functional Abilities Information 41 n ESRTW Plans Support For Employers to Implement the ESRTW Program Employment Obligations of Pre- injury Employers Reporting Outcomes of the ESRTW Program 46 VIII. Labour Market Re- Entry (LMR) Introduction Occupations Identified in the LMR Assessment Training LMR Outcomes Legislative Requirement to Accommodate Injured Workers Employment Opportunities 51 IX. Internal Review Introduction Lengthy Review Processes Internal Review Process 54 X. External Review Introduction Timeline/Schedule for External Review Representation Reconsideration Interface Between Internal and External Review 60 XI. Financial Sustainability 11.1 Introduction Employer Assessment Rates Injury Fund Assessment Rates Benefits Maximum Compensable Average Earnings (MCAE) 65

7 Table of Contents Income Replacement Rate (IRR) PRIME Self- Insured Employers IRR for Fire Fighters and the Royal Newfoundland 71 Constabulary Association 11.8 Pension Replacement Benefits Minimum Compensation Top- Up Provisions Compensation for Seasonal Workers 74 XII. Governance Introduction 77 XIII. Summary of Recommendations 80 PART TWO: THE 2013 SRC RESPONSE TO THE LEGAL REVIEW OF THE WHSC ACT I. Introduction 88 II. Housekeeping 91 III. Parking Lot 102 IV. Summary of Recommendations 107 Addendum #1 WHSCRD 124 Addendum #2 Housekeeping Amendment: Section 74.1(1.1) 128 VOLUME TWO: Working Together Safe Accountable Sustainable Appendices Appendix A: A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W- 11) Appendix B: Statutory Review Process Methodology Appendix C: List of Presenters Appendix D: SRC Discussion Paper

8 Acknowledgements The Statutory Review Committee acknowledges the contributions of the many workers, employers, labour representatives, community advocates and other stakeholders who made the effort to participate in the public consultations. The SRC extends a sincere thank you for the views and opinions expressed by these individuals and organizations. The SRC has reviewed and considered all of the submissions and presentations in its deliberations. The SRC extends it appreciation to Mabel Macpherson, Executive Assistant; Martha Muzychka, Praxis Communications; and Theresa Rahal, Strategic Directions Inc. The SRC also wishes to acknowledge Laurel Courtenay, LLB Counsel, Worksafe BC and Douglas Mah, LLB, QC Secretary and General Counsel of the WCB- Alberta, the authors of A Legal Review of the Workplace Health Safety and Compensation Act (RSNL 1990 Chapter W- 11. For their assistance with the provision of information throughout the review process, the SRC thanks the management and staff of: The Workplace Health, Safety and Compensation Commission (WHSCC) The Occupational Health and Safety Branch (OHS), Service NL The Workplace Health, Safety and Compensation Review Division (WHSCRD) Working Together Safe, Accountable, Sustainable i

9 PART ONE The Report of the 2013 Statutory Review Committee Workplace Health, Safety and Compensation 2013 Statutory Review Committee

10 I. Introduction The statutory review process offers opportunities for stakeholders to provide feedback and to identify ways to improve this report, the Statutory Review Committee (SRC) has compensation system in Newfoundland and Labrador while balancing the needs and priorities of key stakeholders workers, employers, and the Workplace Health, Safety and Compensation Commission (WHSCC). In this 100 th anniversary year of the publication of the Meredith principles on which the work reflect these principles in its deliberations: 1. No- fault compensation: Workplace injuries are compensated regardless of fault. The worker and employer waive the right to sue. There is no argument over responsibility or liability for an injury. Fault becomes irrelevant, and providing compensation becomes the focus. 2. Collective liability: All employers share the total cost of the compensation system. All employers contribute to a common fund. Financial liability becomes their collective responsibility. 3. Security of payment: A fund is established to guarantee that compensation monies will be available. Injured workers are assured of prompt compensation and future benefits. 4. Exclusive jurisdiction: All compensation claims are directed solely to the compensation board. The Board is the decision- maker and final authority for all claims. Nor is the Board bound by legal precedent; it has the power and authority to judge each case on its individual merits. 5. Independent board: The governing board is both autonomous and non- political. The Board is financially independent of government or any special interest group. The administration of the system is focused on the needs of its employer and labour clients, providing service with efficiency and impartiality. The SRC has been mindful of the work carried out in the past decade to bring the system from a financial crisis to a point where financial sustainability is achievable, safety in the workplace has improved significantly, and legislative change through the Occupational Health and Safety (OHS) Act and the Workplace Health, Safety and Compensation (WHSC) Act has increased accountability for workplace health and safety. The public consultations brought together stakeholders to share their knowledge of the. The SRC has considered the importance of collaboration among the workplace parties, 2013 Working Together Safe, Accountable, Sustainable Page 1

11 I. Introduction employer groups, labour groups, the WHSCC, and the OHS Branch to achieve workplace health and safety; the primacy of prevention of workplace injury and occupational disease; and the value of communication in achieving common goals. The SRC conducted its consultations and deliberations using the key themes identified by the WHSCC and the prime stakeholders the Newfoundland and Labrador dor Federation of Labour (NLFL): Maximum compensable assessable earnings (MCAE) Financial sustainability Labour market re- entry Medical management Occupational disease Prevention (Role of Stakeholders). The consultation process also identified compensation system. These included the need to focus on early and safe return to work, the importance of efficient internal and external review processes and the value of effective, transparent governance. The SRC carried out additional research to assess the concerns and the impact of the recommendations made by participants during the consultation process and to identify new approaches to compensation system. Volume One of the SRC report contains two parts, both focusing on improvements to the workers compensation system to address concerns raised by the stakeholders. Part One arises from the consultation process and Part Two arises from a thorough legal review conducted to evaluate the existing legislation and to identify areas where the WHSC Act could be amended to legislation. Volume Two: Appendix A contains the report, A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W- 11) as submitted by the technical advisors. e to the Legal Review (short title) is presented in Part Two of this report. The SRC is confident that its report provides a blueprint for ensuring the w compensation system is proactive and prevention- focused, driven by stakeholder collaboration and partnership to improve workplace health and safety and financial sustainability. Safe. Accountable. Sustainable Working Together Safe, Accountable, Sustainable Page 2

12 II. Prevention Education and Training 2.1 INTRODUCTION Since 2000, the lost time injury rate in Newfoundland and Labrador has dropped from 3.3 to 1.6 per 100 workers in Over the same period, the percentage of injury free employers has increased from 84.3% to 91.8%. Significant factors contributing to the reduction of the lost time injury rate have been the increased focus on prevention and education by workers, employers, employer groups, labour groups, the WHSCC, and the OHS Branch; and legislative changes made to the OHS Act. Through its Prevention Services Division, the WHSCC raises awareness of prevention and offers prevention services to employers and workers to promote improved health and safety practices in the workplace leading to the reduction of the incidence of workplace injuries. Part of the the design, development, delivery, monitoring, and evaluation of workplace health and safety education and accident prevention initiatives along with implementation and monitoring of safety training certification standards. In 2012, the WHSCC released its prevention strategy for the province, Engagement to Action: A Prevention Strategy for Newfoundland and Labrador , 1 which it developed in collaboration with the OHS Branch stakeholders, including the NLEC, the NLFL, the Newfoundland and Labrador Construction Safety Association (NLCSA) and the Forestry Safety Association of Newfoundland and Labrador (FSA- NL). Consultation Summary The SRC received a number of submissions supporting more prevention- focused education and training. Employers, labour groups, and injured workers supported increased education about prevention to reduce injuries and to foster positive approaches to safety in workplaces. The key concerns raised by stakeholders included the need to: Increase education and training for young workers Improve accessibility and affordability of required OHS Committee education and training Identify new approaches for prevention, education and promotion Emphasize training certification standards Promote the role and development of safety sector councils. 1 WHSCC, Engagement to Action: A Prevention Strategy for Newfoundland and Labrador , (2012), 2013 Working Together Safe, Accountable, Sustainable Page 3

13 II. Prevention Education and Training 2.2 EDUCATION AND TRAINING FOR YOUTH AND NEW GRADUATES Education and training play an important role in fostering a safety culture in the workplace, the adoption of safe work practices, and the heightening of awareness regarding hazards and risks. Training sessions ensure workers are up- to- date with safety requirements and proper use of equipment. The knowledge and use of work regarding refusal to work in unsafe or hazardous environments also reduces the risk for harm or injury in the workplace. Consultation An employer recommended that prevention education be integrated in the high school curriculum and another stakeholder recommended occupational health and safety training be integrated in trades and apprenticeship programs. Assessment Workplace safety education at the high school and post- secondary levels plays a critical role in developing a safety culture and protecting and preparing youth, a vulnerable group of workers, to participate in the workforce in a safe manner. Safety education is included in the high school curriculum; for example, safety practices are taught during shop classes. As well, the WHSCC has engaged high school students through an educational game show with good results. The WHSCC has recently sponsored a social marketing campaign targeting youth and young workers. The 2001 and 2006 Statutory Review reports emphasized the need to educate young workers about workplace safety and each SRC recommended making Workplace Safety 3220 a mandatory part of the high school curriculum. The WHSCC continues to work with the Department of Education to explore provincial designation for the course and recently completed a review of the draft curriculum and guide. Occupational health and safety awareness is important for all students in post- secondary programs. For OHS programs in particular, the curriculum should include the new OHS standards. The SRC supports both these initiatives as prevention education and training have a positive effect on decreasing the incidence of workplace injuries Working Together Safe, Accountable, Sustainable Page 4

14 II. Prevention Education and Training 2.3 AFFORDABILITY AND ACCESSIBILITY Consultation Several stakeholders, including employers, workers, labour groups, and safety sector council representatives recommended making the required OHS Committee training programs more accessible in terms of reducing costs and travel time. Suggestions included integrating OHS committee training and other components related to specific industries in post- secondary apprenticeship- based training programs, using on- line courses, and offering more local, on- site offerings closer to where workers are located. Assessment The SRC identified several areas where new training approaches could provide significant benefit to employers, workers and other stakeholders in this province. As well, in light of issues raised by stakeholders, the SRC supports the development of training in: Creating effective early and safe return to work programs 2 Developing workplace hazard and risk assessment skills and programs Understanding the key components of a workplace accident investigation. Given advances in technology, other delivery models such as distance education and web- based seminars may be more cost effective. The SRC also considered the benefits of delivering more training through safety sector councils to achieve efficiencies and the benefits of developing a model for general prevention training that could be delivered across all sectors. Recommendations 1. That the WHSCC a) adopt a broader approach to delivering education and training for prevention including using technology, b) encourage awareness of occupational health and safety in post- secondary programs, and c) integrate Occupational Health and Safety (OHS) standards in all OHS training programs. 2. That the WHSCC collaborate with the Safety Sector Councils to identify opportunities to develop and deliver sector- based safety training. The SRC also heard from stakeholders that increasing stakeholder engagement in, and ownership of, prevention as a shared responsibility between employers, employees and 2 The SRC discusses Early and Safe Return to Work plans in Section VII Working Together Safe, Accountable, Sustainable Page 5

15 II. Prevention Education and Training the WHSCC was critical. Presenters recommended various approaches to engaging stakeholders in all aspects of prevention. The SRC discussed potential initiatives to provide opportunities for knowledge sharing, including highlighting emerging trends and new advances in prevention and safety. This may be accomplished through an annual series of learning symposia that is accessible to all workers and employers throughout the province. Engaging youth, CEO Safety Charter members, and safety sector councils in this initiative would advance workplace health and safety in the province. Recommendation 3. That the WHSCC organize an annual series of learning symposia to provide an opportunity for knowledge sharing, to recognize the innovative approaches implemented by employers and workers, and to promote champions of workplace health and safety in the province. 2.4 TRAINING CERTIFICATION STANDARDS Training certification standards identify the safe work competencies in which workers are required to be certified under the OHS Act. The WHSCC develops standards and approves training providers and trainers to deliver training in accordance with these standards, thus ensuring consistency in competencies and the quality of training provided to workers. Consultation An employer and a worker emphasized the importance of training certification standards and recertification. Assessment Using a collaborative approach, the OHS Branch and the WHSCC establish training certification standards. The OHS Branch has responsibility for legislating and enforcing standards through the regulations of the OHS Act. The WHSCC administers the standards through approval of training curriculum, training providers, and trainers. At present, there are eight training certification standards: Confined Space Entry, Diving, Fall Protection, First Aid, Mines Rescue, OHS Committees / WHS Representatives / Delegates, Power Line Hazards, and Traffic Control Persons. The OHS Branch and the 2013 Working Together Safe, Accountable, Sustainable Page 6

16 II. Prevention Education and Training WHSCC have identified new standards to implement; one such example is the development of a supervisory training certification standard. This standard should include competency requirements for hazard recognition, evaluation and control. Both the OHS Branch and the WHSCC indicated that training certification standards have had a significant impact on workplace safety. For example, in its Annual Performance Report 2012, the WHSCC reported a decline in the injury rate associated with fall from declined from 9.4 injuries per 10,000 in 2011 to 8.3 injuries per 10,000 in 2012 as of 3 The SRC concludes that the continued development and implementation of training certification standards is extremely important. Recommendation 4. That the WHSCC and the OHS Branch develop a supervisory training certification standard including competency requirements for hazard recognition, evaluation and control. 2.5 SAFETY SECTOR COUNCILS The WHSCC supports safety sector councils as a means to bring workers and employers together to promote occupational health and safety within specific industries. The WHSCC may provide funding to a safety sector council to develop a business plan which outlines its goals and objectives, including how it will achieve financial sustainability. There are currently safety sector councils established in the construction, forestry, fishery, and municipalities sectors. These councils are at various stages of development. For example, the NLCSA is a well- established council with many years experience. The Municipal Safety Council NL (MSCNL) is a new council established in Consultation During the public consultations, representatives of three sector councils spoke to the positive benefits such councils bring to industries regarding prevention, education and training, as well as, the identification and promotion of best practices. Two labour groups recommended the WHSCC continue to promote sector councils. The success of safety sector councils is evident in the collaborative efforts among councils to share information and to support the development of best practices. 3 WHSCC, Annual Performance Report 2012 (2013) Working Together Safe, Accountable, Sustainable Page 7

17 II. Prevention Education and Training Assessment The SRC believes safety sector councils can play an effective role in creating awareness and improving competency in injury prevention, and in fostering employer accountability for safety standards and practices in their industries. Through consultation with stakeholders, the SRC has identified a number of opportunities to enhance the engagement of safety sector councils in prevention: Providing sector/industry prevention training Identifying occupational disease risks and prevention methods Assisting or engaging OHS Committees in sector- focused activities Organizing safety forums and workshops Conducting site visits Encouraging collaboration among the sectors Becoming involved in and encouraging early and safe return to work and promoting education and awareness of the ESRTW program (see Section VII: Early and Safe Return to Work). Recommendation 5. That the WHSCC continue to promote the development of safety sector councils as an important component of prevention and to encourage collaboration among safety sector councils to explore increased strategic mandates for prevention and safety in the workplace Working Together Safe, Accountable, Sustainable Page 8

18 III. Prevention OHS Branch and WHSCC 3.1 INTRODUCTION The important roles of prevention and enforcement in providing safe and healthy workplaces for workers are widely recognized. This section addresses the collaborative effort between the WHSCC and the OHS Branch given their complementary mandates of prevention and enforcement, respectively. The SRC considered alternate organizational structures that were proposed to enhance collaboration between the WHSCC and the OHS Branch, ways to improve and monitor the effectiveness of the OHS Committee model, and ways to improve the OHS Committee Program. Consultation Summary The SRC received a number of submissions from stakeholders who raised concerns about the need to: Address the organizational structure of the OHS Branch Enhance collaboration and coordination between the WHSCC and the OHS Branch Increase the effectiveness of the Occupational Health and Safety Committee Program. 3.2 ORGANIZATIONAL STRUCTURE OF THE OHS BRANCH In 1998, the mandate for health and safety education and accident and injury prevention moved to the WHSCC from the Department of Environment and Labour, while the mandate for enforcement remained with the Department. 4 Section 19(3) of the OHS Act and section 20.3 of the WHSC Act set out the requirement for cooperation between the OHS Branch and the WHSCC. The 2001 and 2006 Statutory Review Committees identified the need for greater collaboration between the WHSCC and the OHS Branch as an issue and both made recommendations to address it. However, while the 2001 Task Force agreed with the continued separation, it provided recommendations for improved coordination of activities, many of which were implemented. 5 The 2006 SRC recommended that the 4 5 Changing the Mindset (February 16, 2001) 11. Changing the Mindset (February 16, 2001) Working Together Safe, Accountable, Sustainable Page 9

19 III. Prevention OHS Branch and WHSCC provincial government merge the OHS Branch with the WHSCC, a recommendation that government did not accept. 6 Consultation Various stakeholders raised concerns about the status of the OHS Branch during the consultation phase of this statutory review. A number of stakeholders including several labour groups supported maintaining the OHS Branch separate from the WHSCC. Reasons offered for not combining the two entities included: It would be detrimental to enforcement It has not been demonstrated that it would be helpful to injured workers The entities have different mandates. An employer group recommended that legislative responsibility for enforcement of occupational health and safety be given to the WHSCC for reasons of efficiency and prudent spending. Assessment While the OHS Branch and the WHSCC share the goal of achieving safe and healthy workplaces in the province, their mandates and approaches differ. The OHS Branch has the authority to enforce the OHS Act and its regulations and the WHSCC has the authority to educate and raise awareness about occupational health and safety. The mandates are complementary and each contributes to improved workplace safety and health. The SRC consulted with the OHS Branch and the WHSCC regarding how they work together to achieve their complementary mandates, what strategic areas are targeted for improvement, and what initiatives are planned in prevention and enforcement, among other things. The WHSCC and the OHS Branch reported they collaborate in areas such as jointly developing a prevention strategy with other stakeholders, implementing a Memorandum of Understanding for information sharing, participating on safety sector councils, preparing hazard alerts, developing training standards and certification, and participating in joint technical advisory committees. However, based on observations and assessment of the information provided by both groups, the SRC concludes there are many opportunities to increase collaboration between the WHSCC 6 Finding the Balance: The Report of the 2006 Statutory Review Committee on The Workplace Health, Safety and Compensation Act (May 31, 2006) Working Together Safe, Accountable, Sustainable Page 10

20 III. Prevention OHS Branch and WHSCC and the OHS Branch, which will lead to significant improvement in occupational health and safety in the province. Taking into consider and the input received during the stakeholder consultations in 2013, the SRC considered the potential of two organizational models to facilitate increased collaboration between the WHSCC and the OHS Branch: Combine the OHS Branch with the WHSCC Establish the OHS Branch as a separate agency of government. According to the Association of Workers Compensation Boards of Canada (AWCBC), a variety of organizational models are used across Canada. In Alberta, Ontario and Saskatchewan, the government is responsible for enforcement and prevention. In Manitoba, the government is responsible for enforcement and prevention and also shares responsibility for prevention with the. In New Brunswick, British Columbia, Prince Edward Island, Quebec, Yukon and NWT, the ensation boards are responsible for enforcement and prevention. In Newfoundland and Labrador and Nova Scotia, the provincial governments are s are responsible for prevention. While combining the OHS Branch with the WHSCC is an option, the SRC believes it is not necessary to increase collaboration. It would be a challenging undertaking from an organizational perspective and the benefits to be derived from it are unclear. Further, the SRC believes that combining the OHS Branch with the WHSCC will distract both organizations from their mandates as they adapt to working as one entity. As identified in section 3.3 that follows, the SRC has identified key areas for increased collaboration between the separate organizations. Establishing the OHS Branch as a separate agency of government is another model the SRC considered. The Government Purchasing Agency and the Labour Relations Agency are examples of this model. As a separate agency, the OHS Branch would continue to administer the OHS Act and its regulations and its funding would continue to a calendar year as required by the Section 20.4 of the WHSC Act. Some of the benefits of the OHS Branch being a separate agency of government include: A higher profile for occupational health and safety enforcement in the province simultaneously being planned or executed 2013 Working Together Safe, Accountable, Sustainable Page 11

21 III. Prevention OHS Branch and WHSCC An independent branch of government may be preferable for enforcement activity at provincial government workplaces An opportunity for the WHSCC and the OHS Branch to deal with each other as peer agencies to address the areas of responsibility that overlap between prevention and enforcement that would benefit from increased collaboration An opportunity to place greater emphasis on establishing a client service organization. The current structure continues to create uncertainty for both the OHS Branch and the WHSCC, and this may affect the further development of a collaborative working relationship. More research and analysis is required to identify and evaluate the benefits, as well as the disadvantages, of establishing the OHS Branch as an agency of government. Recommendations 6. That the OHS Branch remain separate from the WHSCC. 7. That the provincial government determine the potential for the OHS Branch to be an independent agency as a branch of the public service under the management and control of a Chief Operating Officer, similar to the Government Purchasing Agency and the Labour Relations Agency. 3.3 COLLABORATION AND COORDINATION BETWEEN THE WHSCC AND THE OHS BRANCH A coordinated and planned approach to the WHSCC and the OHS Branch respective roles in prevention and enforcement and the overlap between the two would achieve greater results. It is essential that the WHSCC and the OHS Branch develop common goals and initiatives to provide improved client service to stakeholders. This would be a dynamic process of jointly planning and working together to: Target and prioritize workplace enforcement and prevention activity based on the incidence of injuries and the risk of injury Identify complementary approaches to ensure the effective coordination of prevention and enforcement strategies in the workplace Evaluate the s Prevention Service OHS Audit Program Identify areas for improving information sharing Working Together Safe, Accountable, Sustainable Page 12

22 III. Prevention OHS Branch and WHSCC The SRC concludes that increased collaboration between the WHSCC and the OHS Branch would contribute to improved workplace health and safety in the province. Recommendations 8. That the Chief Executive Officer of the WHSCC and the Assistant Deputy Minister responsible for the OHS Branch collaborate to develop a framework approach to high risk, high priority workplaces resulting in improved occupational health and safety outcomes and addressing service delivery issues common to both organizations. 9. That the WHSCC and the OHS Branch establish a committee to address joint initiatives Chief Executive Officer and the Assistant Deputy Minister responsible for the OHS Branch should report on these initiatives to the WHSCC Board of Directors and the Ministers responsible semi- annually. 10. That an evaluation of the effectiveness of the OHS Branch and the collaboration be conducted by an independent consultant within two years of establishing the framework and the committee identified in recommendations 8 and OCCUPATIONAL HEALTH AND SAFETY COMMITTEES Section 37 of the OHS Act requires an employer to establish an occupational health and safety committee at workplaces with 10 or more workers. The OHS Committee is an advisory group comprised of worker and employer representatives that plays a critical role in workplace health and safety. The WHSCC describes the OHS Committee s activities as identifying and evaluating occupational health and safety concerns, making recommendations for corrective action and promoting health and safety in the workplace. OHS Committees play a leading role in reducing workplace injuries and health issues. In accordance with Section 40 of the OHS Act, OHS Committees are required to meet at least once every three months. Section 25 (2) of the OHS Regulations requires OHS Committees to submit the meeting minutes to the WHSCC. The WHSCC reports that WHSCC staff review the OHS Committee minutes. If any immediate dangers to life and health issues are identified, those are immediately referred to a Health and Safety Advisor or to the OHS Branch for follow- up. In most cases, the WHSCC contacts the OHS 2013 Working Together Safe, Accountable, Sustainable Page 13

23 III. Prevention OHS Branch and WHSCC Committee co- chairs to discuss the resolution of safety issues, and may attend the next committee meeting. According to the WHSCC, the staff visit more than 80 committees each month. In 2012, 52% of the 3,633 registered OHS Committees in workplaces in the province were considered active and 48% were considered delinquent in the submission of meeting minutes. The WHSCC protocol for addressing delinquent minutes involves contacting the employer every 30 days up to 180 days delinquent, at which time the WHSCC notifies the OHS Branch. Of the 3,633 registered OHS Committees, 977 committees were referred to the OHS Branch. Consultation Several labour groups expressed the following concerns about the effectiveness of the OHS Committee model: The delinquency rate of submission of meeting minutes to the WHSCC The lack of a system at the OHS Branch to capture information on whether employers have the required OHS policies and programs in place The number of government departments that did not have the required OHS programs in place by the end of 2010 The frustration of OHS Committee members because recommendations are not being implemented. Some stakeholders suggested the OHS Committee program would be improved by revising the OHS Committee and WHS Representative training and including workplace inspections and incident investigation. Other training needs identified by stakeholders included: Awareness training for workers and employers on the Occupational Health and Safety Act and regulations and general tools on hazard recognition, evaluation, and controls Mandatory health surveillance and hazard assessment training for all OHS Committee members and WHS representatives. In addition to training for OHS Committees, a stakeholder identified the following ways to improve engagement of the OHS Committees by involving: OHS Committees in the prevention of occupational disease 2013 Working Together Safe, Accountable, Sustainable Page 14

24 III. Prevention OHS Branch and WHSCC Safety sector councils with OHS Committees as the councils are proving to be successful in bringing employers and workers together. Assessment Monitoring Occupational Health and Safety Committees One of the key performance indicators used by the WHSCC to monitor the performance of OHS Committees is submission of the OHS Committee minutes every 90 days, reflecting the requirement of the OHS Act for the committees to meet at least once every three months. The SRC concludes that reporting OHS Committee minutes is an indicator of activity; it is not an indicator of the effectiveness of the committees. Further, as noted by stakeholders, 48% of the 3,633 OHS Committees were delinquent in submitting minutes at the end of While the SRC understands there are many factors contributing to this delinquency, such as seasonal operations, the SRC is concerned that the delinquency of submitting minutes may indicate a larger problem of waning interest in involvement in OHS Committees. The SRC is encouraged by the following statistics provided by the WHSCC: The number of OHS Committees registered has increased in 2012 from 3,122 to 3,633 More than 38,000 committee members and WHS Representatives in the province were trained by December 2012, including almost 3,000 trained in that year The number of workplace inspections conducted by employers has increased significantly since 2007 (from 13,724 to 24,598) reflecting in part growth in the number of employers and also growth in the number of those reporting. However, the SRC is concerned that the OHS Committee program has not achieved its full potential for improving occupational health and safety in the workplace. Other areas of concern with regard to the OHS Committee program are: Requiring an employer to have multiple OHS Committees when the employer has multiple workplaces in close proximity based on an interpretation of the legislative requirement for OHS Committees in workplaces where there are more than 10 workers In some cases, the content of OHS Committee minutes is insufficient to alert the WHSCC and/or the OHS Branch that an intervention is necessary Working Together Safe, Accountable, Sustainable Page 15

25 III. Prevention OHS Branch and WHSCC Monitoring OHS Committee minutes will encourage greater participation and validation Recommendations 11. That the WHSCC make the oversight and assessment of OHS Committee activity and minutes a priority. The WHSCC should monitor closely whether risks identified by the OHS Committee have been appropriately addressed in a timely manner by the employer and if not, intervene, or request that the OHS Branch intervene. 12. That the requirement for OHS Committees for an employer with multi- site workplaces which are in close proximity with each other (e.g., in the same building or adjacent buildings) be practically applied so that the number of OHS Committees are not so numerous that they become ineffective and inefficient. 13. That the WHSCC and the OHS Branch ensure hazard recognition, evaluation and control are emphasized in the OHS Committee training certification standard OHS Committee Program One of the topics the SRC discussed during its consultation sessions with the OHS Branch and the WHSCC was the effectiveness of the OHS Committee Program. The WHSCC and the OHS Branch noted that OHS Committee members are engaged at the workplace in the OHS program development, workplace inspections, hazard assessments, and accident and incident investigations. The WHSCC and the OHS Branch indicated it would be helpful to provide additional training to OHS Committee members in the assessment of workplace hazards, and the identification and recommendation of appropriate controls. The WHSCC and the OHS Branch informed the SRC that they have undertaken a joint initiative to conduct a review of the OHS Committee Program in consultation with the prime stakeholders. The review will assess the: Effectiveness of OHS Committees and WHS Representatives/Designates in meeting their mandates as outlined in OHS legislation Certification Training Standard and training curriculum for OHS Committee and WHS Representative 2013 Working Together Safe, Accountable, Sustainable Page 16

26 III. Prevention OHS Branch and WHSCC OHS Committee minutes report form and online reporting system Educational publications with respect to the standard. The review report will be submitted to the consultation sessions with the WHSCC and the OHS Branch, the SRC concludes it is necessary to re- emphasize the requirements for, and importance of, OHS Committees in workplace health and safety and the role of the OHS Committee as an advisory committee to the employer. The SRC supports the joint review of the OHS Committee Program as described above. Recommendation 14. That the review of the OHS Committee Program include the following: a) Develop a memorandum of understanding between the WHSCC and the OHS Branch with a clear definition of their roles and responsibilities, jointly and severally, in supporting OHS Committees. b) Implement appropriate refresher training for OHS Committee members. c) Revise the OHS Committee Minutes form in a manner which ensures that longstanding issues or those critical to the health and safety of workers in the workplace are flagged and can be appropriately monitored by the WHSCC and/or the OHS Branch. d) Identify opportunities and approaches to support the engagement of OHS Committees by providing health and safety information such as bulletins on hearing loss/noise on a regular basis to them. e) Identify key performance indicators that measure the effectiveness of OHS Committees and report them to the WHSCC Board of Directors within six months after receiving direction from the provincial government regarding this recommendation Working Together Safe, Accountable, Sustainable Page 17

27 IV. Claims Management 4.1 INTRODUCTION Claims management focuses on the efficient and effective provision of services and benefits to injured workers throughout the province. In this province, the WHSCC provides injured workers with short term or long term benefits (health care and wage dependents. The WHSCC uses a claims management model that focuses on early intervention, the collection of appropriate information, and proactive case management. The goal is to provide the benefits and care to which injured workers are entitled to ensure recovery. Recovery may include health- only benefits, or implementation of an early and safe return to work plan where appropriate. Consultation Summary During the consultation phase, some stakeholders raised concerns relating to: Client service communications Independent medical examinations The use of external consultants to manage claims and employer accounts Protection of personal information Video surveillance Disputed claims. 4.2 CLIENT SERVICE AND COMMUNICATIONS Consultation Some injured workers raised concerns related to file and document management, case note documentation, and implementation of WHSCC policies. As well, some injured workers and their family members reported issues with navigating the system, or in becoming properly informed about policies or benefits. Some injured workers reported concerns with how requests were dealt with in terms of service extension, and approvals for tools and assistive devices Working Together Safe, Accountable, Sustainable Page 18

28 IV. Claims Management Assessment The SRC reviewed the injured worker survey reports for additional information and insights to the concerns identified by injured workers during the consultations. In the 2012 Early and Safe Return- to- Work Program Survey, it was reported that the amount of benefits available to the injured workers was the key factor influencing levels of dissatisfaction with the WHSCC: (Most agreed that) the hours of operation are appropriate, that staff members provided them with a clear understanding of the benefits, that staff members are trustworthy, and written communications are clear and overall outcome of their claim, although 16 percent of injured workers express dissatisfaction. Among the reasons offered for this dissatisfaction are the amount of money provided through their claim, the fact that they were turned down or cut off, the attitude of WHSCC staff, and the way the claim was handled. 7 Notwithstanding the fact that lower financial benefits influence satisfaction levels, the 2012 Injured Workers Survey also found that more communication was necessary overall: Findings indicate that while injured worker clients are modestly satisfied with the communications they receive from the Commission, selected areas continue to present opportunities for improvement. In particular, there is room for improvement in the written communications provided by the WHSCC with regards to the clarity of decisions, and in interactions serving for the Commission to review its communications process with respect to, for example, letters concerning the compensation process. 8 The SRC has learned that research is underway at the WHSCC on how to enhance communications that best meet the needs of clients. The SRC supports this approach and is satisfied that improving communications continues to be a priority for staff and management. 7 Corporate Research Associates Inc, 2012 Early and Safe Return- to- Work Program Survey (WHSCC, 2013) 3. 8 Corporate Research Associates Inc, 2012 Injured Workers Survey (WHSCC, 2013) Working Together Safe, Accountable, Sustainable Page 19

29 IV. Claims Management Recommendation 15. That the WHSCC emphasize face- to- face or telephone communication as the first approach for providing information to injured workers with the use of electronic (web- based) and printed material as a supplement. 4.3 CONSULTANTS Consultants provide services to employers such as filing reports to the WHSCC, providing advice on claims management, facilitating PRIME rebates, developing early and safe return to work plans, or representing the em process. Consultation Some injured workers and a political advocate recommended that the use of consultants be prohibited or regulated. Some injured workers, labour groups, and advocates said introducing a third party to the process made it challenging to maintain a positive relationship with the pre- injury employer. Some employers reported that consultants helped them manage their claims more effectively. Assessment tion Boards of Canada (AWCBC), consultants are bound by the same policies and requirements governing confidentiality and privacy as the employers they represent. The SRC concludes the use of consultants is a right of both employers and workers who wish to avail of their services. 4.4 PRIVACY AND CONFIDENTIALITY Through the statutory review process, stakeholders identified several issues related to collecting, keeping, protecting and sharing personal health information. These were: Compliance with the Personal Health Information Act The use of video surveillance Working Together Safe, Accountable, Sustainable Page 20

30 IV. Claims Management Compliance with the Personal Health Information Act The Personal Health Information Act (PHIA) governs the collection, use and disclosure of personal health information. The aim of PHIA is to keep personal health information confidential and secure, while allowing for the effective delivery of health and community services. PHIA applies to all organizations and individuals involved in providing health and community services, administration, and research in the public, private, health, and education sectors. Everyone who works with personal health information, including the WHSCC, its third- party providers, and agents/representatives of workers and employers, must protect, collect, use and disclose that information in accordance with PHIA. Consultation A labour group stated that the NL Privacy Commissioner had recommended the WHSCC audit its contract service providers (health care) for compliance policies as a result of a privacy breach which occurred in January An injured worker raised concerns regarding the release of medical information, citing an instance where their entire medical file, including information unrelated to the workplace injury, was sent to the WHSCC. Another injured worker reported that multiple copies of their concerned with the number of copies available and also with establishing who had access to their personal information. Assessment Memorandums of Agreement (MOA) with all major health care provider groups. When contracting with outside service providers, the WHSCC requires the contract to contain specific privacy and confidentiality terms imposing strict requirements on these service providers to protect confidential information. In addition, contracts contain a declaration of confidentiality which must be signed by persons providing services under the contract. Further, all health care providers regulated within the province are bound by PHIA requirements regarding the use and protection of personal health information. return to work plans, functional assessments, test reports, and so on. The WHSCC can share with employers, or their designated representatives, copies of return to work plans, LMR plans, functional abilities information, decision letters, and appeal letters. The medical information shared with an employer is specific to the current claim. In the 2012 Early and Safe Return- to- Work Program Survey, the surveyors report that 2013 Working Together Safe, Accountable, Sustainable Page 21