WSIB to abolish policy that slashed benefits for thousands
Workplace Safety and Insurance Board to review some 4,500 claims made by injured workers whose compensation may have been unfairly cut due to controversial guidelines.

Thestar.com
Sara Mojtehedzadeh
Dec. 15, 2017

The provincial workers’ compensation board will reverse a controversial policy that slashed benefits by blaming injuries on “pre-existing conditions,” even if they had no physical impact on workers before they got hurt on the job, the Star has learned.

The Workplace Safety and Insurance Board will also review 4,500 claims made by workers whose compensation may have been unfairly reduced as a result of the policy.

Implemented in 2012, the policy represented a significant, and some argued illegal, departure from the founding tenets of the workers’ compensation system in Canada: the so-called thin-skull principle, which says workers cannot be discriminated against because of a pre-existing condition that caused no symptoms before a workplace accident.

The issue was also the subject of a class action lawsuit filed in 2014 by Toronto lawyers Richard Fink and Alan McConnell. The suit argued that injured workers were being “denied the full extent of benefits to which they were entitled” as a result of a “secret policy” to “aggressively reduce” the lump sums awarded to people with work-related permanent injuries.

A Star investigation also found that the workers’ compensation independent appeals tribunal systematically overturned WSIB decisions to slash benefits based on alleged pre-existing conditions. Between 2012 and 2016, about 80 per cent of injured workers’ appeals on that issue were successful, according to a tally of tribunal rulings.

“As part of our commitment to service excellence, we regularly review our policies and their application to make sure we are applying them consistently and fairly. We also monitor WSIAT decisions to look for trends,” said Christine Arnott, a spokesperson for the WSIB.

Brian Jarvis, the WSIB’s chief operating officer, said the decision was prompted by feedback from stakeholders.

“We want to make sure if we made a mistake, we correct it,” he said.

Fink and McConnell will now drop the class action lawsuit, which was filed on behalf of representative plaintiff Pietro Castrillo.

“This is a historic move by the WSIB to address the issues raised in the class action lawsuit. The board has listened to our concerns,” Fink said. “It is good news for Ontario’s workers.”

As of Friday, the board will no longer cut benefits for people who had what it calls non-measurable, asymptomatic pre-existing conditions before a workplace injury. A review of the 4,500 claims is expected to be completed by mid-2018. Those affected by the review will be notified by the WSIB and could see an increase in the lump sum payments they received as a result of a permanent injury.

Maryth Yachnin, a lawyer with the Industrial Accident Victims’ Group of Ontario, said the move was a step in the right direction, describing the 2012 policy as having “no principled justification other than to save money on the backs of injured workers.”

But she said she was concerned that the review will only result in changes to workers’ benefits if the board decides their pre-existing condition is “non-measurable.”

For example, she said, a worker who had the tip of a finger amputated as a child may be perfectly capable of working. But if that hand is cut off in a workplace accident, they would still have a "measurable" pre-existing condition even if it didn’t affect their ability to do their job.

“It’s not a solution because people are still going to lose benefits for something that did not affect them as workers,” she said.

Jarvis said the board would review each case on its own merits.

“To the extent that the measurable issue was not affecting (workers’) ability to do their work, I would expect that would be taken into account moving forward,” he said.

As previously reported by the Star, the 2012 policy was introduced after the WSIB contracted American consultant Christopher Brigham to help staff “accurately rate” the severity of permanent injuries and to maximize the “efficiency” of the process.

Brigham was the subject of congressional hearings in the United States two years before being hired by the WSIB. In the hearings, critics claimed a medical guide written by Brigham, which was used by numerous U.S. compensation boards to evaluate workers’ injuries, was developed in “near secrecy” and that it “dramatically reduced impairment ratings for many types of conditions without apparent medical evidence and transparency.”

In the hearings, lawyer Frederick Uehlein spoke in Brigham’s defence, and said his guides were “evidence-based” and afforded “consistency and ease of use.” Brigham has described himself as a “strong advocate for those who are recovering from injury or illness.”

Toronto tractor-trailer driver Fernando Paul injured his lower spine in a 2010 workplace accident that left him almost completely immobile. But in 2012, after an MRI found he might have a mild degenerative disc disease in a completely different part of his spine, the WSIB halved Paul’s permanent impairment rating, which meant he was not eligible for additional supports through the board’s serious injury program.

Years later, Paul is still appealing the decision. He does not know whether his claim will be eligible for the board’s forthcoming review, but he said he welcomed the decision if it means workers will not need to go through what he has endured.

“If they’re going to reverse things to the right people -- and I’ll keep saying, to the right people -- I agree with that,” he said. “Quite a few guys like me had the same problems.”

A report this year by the Industrial Accident Victims’ Group of Ontario found 38 cases in 2016 alone where the province’s independent appeals tribunal for compensation claims overturned WSIB decisions to reduce benefits based on asymptomatic pre-conditions.

Yachnin said that figure was a “drop in the bucket.”

“You’re talking thousands of people -- I believe the board is (now) acknowledging that -- who had their benefits because of this illegal practice.”