Law Times

Law Times • January 6, 2014 Page 9 FOCUS Lawyers dispute WSIB's optimistic claims Denial rate increases as insurance board tries new approach BY JuDY VAN RHIJN For Law Times A legislative standing committee has ordered the Workplace Safety & Insurance Board to justify its low benefit payouts. While the board is citing improved return-to-work and recovery outcomes for injured workers and employers, lawyers, pointing to increased rates of refusal and administrative decisions limiting worker rights, deny those optimistic claims. When appearing before the Ontario legislative standing committee on government agencies, the WSIB gave itself a good report card. It said it had turned its finances around through enhancements to its service delivery model and a new work reintegration program and health-care strategy. It also said improved return-to-work and recovery outcomes for injured workers and employers had reduced annual benefit costs by more than $500 million. In support of its assertions, it said 92 per cent of all injured workers are now back to work within one year of their injury with no wage loss compared to just 85 per cent in 2008. Employee organizations told a different story. They contended the changes increased the likelihood workers would end up in menial or low-paying positions. The United Food and Commercial Workers Union reported some individuals were taking positions they considered demeaning and argued the WSIB has abandoned retraining. The Ontario Public Service Employees Union also said workers have had to take unsuitable positions that end up leading to reinjury. The Ontario Nurses Association indicated workers raising safety issues have been considered unco-operative and may have their benefits terminated. The committee took the complaints seriously and has given the WSIB 90 days to provide historical data concerning injured worker re-entry into the workforce, specifically with regards to the change in the worker's average wage, the proportion of workers who rejoined the same employer, and worker retention over one, three, and five years following injury. Michael Green, a lawyer who represents injured workers, says the WSIB's financial problems stem from cuts made by the Mike Harris government and the stock market crash that meant it could no longer live off investments. While premiums paid by employers have risen in order to assist in addressing the unfunded liability, Green believes the system has lost its balance and injured workers are paying for the WSIB's improved financial performance. "How many are still back at work after five years? What is the rate of people with permanent problems being able to sustain work?" Green's position is supported by the board's own statistics that show a 50-per-cent increase in the rate of claims denial, a $633-million decrease in benefits, a reduction in vocational retraining to five months from 19, a 29-percent decline in long-term benefits for people with permanent disabilities, and a 31-per-cent fall in permanent impairment awards. The WSIB said its denial rate increased because it's now paying closer attention to claims that would previously have been abandoned, leading to a decrease in the abandonment rate and an increase in the denial rate. According to Green, this new approach is the result of administrative reinterpretations undertaken without policy or legislative change. "It's a horrible thing from a rule of law point of view," he says. He cites one such change as "the end of the unemployable worker." "Under the law, if you can't work, you are entitled to full benefits. In the past, if you had a combination of impairment, absence of transferable skills, and age, you would get a Canada Pension Plan disability benefit. Then there was an informal directive that there are no unemployable workers. Case managers have reduced their numbers tremendously, including many of those who are recognized by the CPP." The Canadian Union of Public Employees informed the committee that the message the WSIB is sending — that no one is unemployable — is wrong and damaging to individuals who are truly unable to work. Another area dealt a severe blow administratively is the idea of psychological conditions and chronic pain as a secondary entitlement. "Adjudicators have been instructed not to follow medical opinions, even of the Centre for Addiction and Mental Health, but to follow their own criteria," says Green. "You may have a medical opinion from a respected practitioner that the psychological condition is related to the accident, and they say, 'No, it's not.' If the problems arise from dealing with the WSIB, they say that dealing with them is not part of the claim." Over his decades of experience, Green has seen how common it is for someone with a permanent impairment to become depressed. "Now it's unheard of unless it was caused by a traumatic accident. The more grinding type of psychological problem is no longer recognized by the board." Another practice that has changed relates to surveillance patterns. "Previously, surveillance was predominantly done in response to tips. Now it is predominantly board directed. They are following people with psychological problems. Sometimes the people know they're being followed, which leads to paranoia and other problems." Yet another area significantly curtailed by the new approach is the recognition of pre-existing conditions. "Traditionally, there was very fair law and policy that if you were asymptomatic prior to the accident but the accident aggravated the condition, you were entitled to benefits until you returned to the pre-accident state. Now, due to an administrative change, they are starting to deny that the condition that you can see on the scans is causing symptoms. They say the pre-existing condition is not anything to do with the accident. This is new from the board. It is not consistent with the jurisprudence or with board history," says Green. LT McKellar's Slide Rule App... easy access with just one touch. No matter where you are, the McKellar Slide Rule is never out of reach. In addition to the printed version, it is always available for BlackBerry®, iPhone® and Android™. Free from McKellar, all you have to do is visit www.mckellarmobile.com and download the McKellar Slide Rule App today. McKellar. Leaders in innovation and efficiency. 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