Law Times

Law Times • January 12, 2015 Page 11 www.lawtimesnews.com WSIB fills policy hole Both employer, worker advocates happy to see new guidance By JuDy vAN rhiJN For Law Times n recent years, the Workplace Safety and Insurance Board scheme in Ontario has come under significant criticism for various gaps in policy. New decision-making processes led to a dramatic upswing in its de- nial rate that in turn led to a tsu- nami of appeals. But on Nov. 1, a raft of new policies came into effect that strives to fill the gaps. Lawyers for both employ- ers and employees are welcom- ing the changes. While they're usually on opposite sides of the issue, Stephen Roberts of Mc- Tague Law Firm LLP in Wind- sor, Ont., and Michael Green, a workers compensation lawyer in Toronto, concur that the legal profession is welcoming the pol- icies regardless of the content. "As lawyers, we argue the inter- pretation of laws," says Roberts. "Without policies, you can't argue what the interpretation is. At least with a policy document, you can make an argument. It can be statute, regulation or policy. There's always room for interpretation." Green agrees. "Believe it or not, it is better to be dealing with actual policy you can argue about than practices that conf lict with policy. It is frustrating and impossible to explain to a client why the board is making deci- sions that are contrary to the law." The new policies offer guid- ance to decision-makers in areas such as pre-existing conditions, permanent impairments, recur- rences, aggravations of signifi- cant pre-accident impairments, and work disruptions. They're the result of two years of con- sultation as part of the benefits policy review. It has taken place against a backdrop of claims by the WSIB that its improved fi- nancial health is the result of re- forms in its practices and admin- istration. Others say the financial improvements have come at the expense of injured workers. Employee advocates point to large decreases in annual benefits paid out as evidence that savings are a result of de- nials, particularly in relation to pre-existing conditions and an unofficial policy of not finding employees to be unemployable. The new pre-existing condi- tions policy provides that the board won't deny entitlement for a work-related injury or dis- ease due to a pre-existing con- dition. Once decision-makers find an injury to be work-related and they establish initial entitle- ment, only then will they con- sider the impact of pre-existing conditions on the worker's on- going impairment. This adopts the "thin skull" and "crumbling skull" doctrines that recognize that tortfeasors take their victims as they find them and that a pre-existing condition isn't necessarily the cause of the worker's impair- ment. Green gives the example of a worker who's diabetic. "The question that gets asked is if there is something that wouldn't be a problem if the worker wasn't dia- betic, why should the employer have to pay? The hard part of it is that there is a lot of ambiguity." Ontario is the only province that hasn't had a policy on pre- existing conditions. "While the WSIB isn't precedent-based, the thin skull and crumbling skull doctrines have been part of the common law and have carried forward into WSIB decision- making," says Roberts. "I don't think the policy will make significant changes to the outcomes. If anything, they give more clarity and will allow more consistency in decision-making. Sometimes the decision-makers may not clearly understand the principles," he notes. The feeling among employee advocates is that the new policy could have been worse but is still a major step backwards. Green recalls that back in March 2014, the WSIB proposed what he calls a "disastrous" policy that would have abrogated the thin skull principle. He worries the new policy will still allow the WSIB to deal with these matters, contrary to its own policies and legal principles, as it has for the last four years. While it has usually granted initial entitlement, once the claimant reaches the usual healing time frame, the assump- tion has been that any ongoing impairment is due to the asymp- tomatic pre-existing condition. "The usual healing time is used as the maximum healing time," says Green. In its December reporting service newsletter, the Advocates for Injured Workers Community Legal Clinic criticized these and other policies. "Overall, the new benefit policies are extremely troubling for the fairness of the workers' compensation system," according to the newsletter. "The new benefit policies . . . are consistently to the detri- ment of workers. None of the changes benefit injured workers and most will negatively affect the fairness of adjudication and compensation for injured work- ers. . . . While the final policies somewhat better ref lect estab- lished legal principles, their neg- ative effects on injured workers are unchanged." In relation to pre-existing conditions, it finds the changes breach the thin skull rule that states that even if the injury is worse than it would be for a less vulnerable worker, entitle- ment should f low as long as the causal relationship remains. It also criticizes a heavy reliance on expected recovery guide- lines or predictions rather than the medical evidence about the worker's actual recovery. The employer community is welcoming the content of the policies, according to Roberts. "They don't go as far as they were originally going to but they are still fair and reasonable." When it comes to the new policy with respect to perma- nent impairments, Roberts says there had been an absence here in Ontario. "There was a policy for de- termination of the amount of permanent impairment, but we didn't have a policy that defined what permanent impairment was. There have already been changes informally over the last few years. I don't see the policies making a big change to outcomes, just as- sisting in the decision-making for ongoing benefits." LT FOCUS What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Baxter_LT_Oct7_13.indd 1 13-10-01 4:03 PM I

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