WSIB's 'devastating' compensation policy all about board's bottom line, lawyers charge

Lawyers who represent people injured on the job in Ontario say a new policy introduced by the province's Workplace Safety and Insurance Board is having a "devastating" effect ontheir clients, and accuse the board of unfairlycutting injured workers'benefitsin order to meet its own financial demands.

As CBC News reported Tuesday, injured LanarkCountyparamedicDan O'Connorsays he fears losing his home after the boardslashed his benefits by half. O'Connor was ordered to resume a transitional training course despite debilitating back pain that makes it difficult for him to commute or sit in a classroom.

O'Connor's case has shed lighton what many of those who deal with the board are characterizing as a larger, systemicissue: they claim the WSIBroutinely blames pre-existing medical conditionsfor exacerbating workers' injuries, using that as an excuse to slash their compensation.

"It's ridiculous,"said retired lawyerRon Ellis, who served for 12 years as chair of the board's appeals tribunal.

I think we should be ashamed of the system. You have some of the most vulnerable people in our society being victimized by a corporate structure.- Ron Ellis, former chair of theWSIB'sappeals tribunal

"It'sa very large reduction in benefit entitlement with no change in thelegislation," Ellis said. "I think weshould all be ashamed of the system. You have some of the most vulnerable people in our society being victimized by a corporate structure."

Following a report by Ontario's auditor general showing the WSIBwas short billions of dollars, the province ordered the board to clean up its financial mess before it jeopardized workers' benefits

In 2011 theWSIB'sunfunded liability the amount by which its futurepaymentobligationsexceeded its bank balancehit an unsustainable $14 billion. Getting out of that financial hole required "radical and rapid steps," according to an independent report commissioned by the province.

Since then, the board has managed to reduce its liabilityto $5.6billion, setting it six years ahead of schedule inits mandate to get in the black by 2027.

Board hired American consultant

How did the WSIB pull off such a dramatic recovery?

In 2012, the board hiredHawaii-basedconsultant Dr. ChristopherBrigham, payinghis firmnearly$100,000to review its policy on permanent impairment andcreate a tool to help staff rate cases.

According to the report submitted byBrighamand Associates,bestpractices within the industry "clearly identifythatimpairment due to an injury must be differentiated from impairment due to other health issues, including degenerative processes associated with aging or other pre-existing conditions."

Around the same time and perhaps even earlier lawyers who represent injured workers saythey started noticing a dramatic shift away from a long-acceptedprincipleknown as the "thin skull rule."

Thin skull rule

The rule dictates that workers with thinskulls should be treated no differently than workers with normal skulls when bricks fallon their heads. The thin-skulledworker will suffer worse injury, but shouldn't be denied compensation just because their fragile cranium is a pre-existing condition.

It undermines the very core of the workers'compensation system. The results have been really devastating.- MarythYachnin, lawyer

MarythYachnin, a lawyer with the Industrial Accident Victims Group of Ontario, said the shift away from the thin skull rule began well before the board updated itsofficial policy in 2014.

"They started cutting permanent impairment awards by half,"said Yachnin. "[Workers are told], 'If you're still injured it's because you're older, you have pre-existing degenerative conditions, so we don't have to pay you anymore.'"

But the policy doesn't make sense, Yachnininsists, because in most cases the workers were able to perform their jobs without any problems until they were injured.

"It undermines the very core of the workers'compensation system," said Yachnin."The results have been really devastating."

'There's no malice here'

The WSIB said its pre-existing condition policy went into effect in November 2014, and followed extensive consultations led by the province's former deputy labour minister Jim Thomas. Prior to its adoption, the WSIB was the only compensation board in Canada without a policy dealing with pre-existing conditions, the board said.

"There's no malice here. What we're trying to do is be fair, follow our policies and make the best decision possible,"said JohnGenise, the board's director of service delivery in Ottawa. "The policy provided us with a little more guidance andrigouraround how to approach those cases."

The board rejects the accusation that the policy was really about saving money. Nor is the WSIB's improved financial outlook the result of any one policy change, Genisesaid.

"There's a multitude of factors, from what Iunderstand,that have put us in a better financial situation," he said, including a drop in the number of claims across Ontario, an early intervention approach that gets workers back on the job sooner and financial gains earned by the board's investments.

Class-action lawsuit

Nevertheless, Toronto lawyer Richard Fink launched a multimillion-dollar class-action lawsuit in 2014 against WSIB on behalf of injured workers who had their benefits cut due to pre-existing conditions.

An Ontario judge dismissed the case in July2015, but Fink appealed. The case was heard Sept. 16and he and his clients await thedecision.

Retired lawyer Ron Ellissaidthe public often doesn't care about WSIB cases becausethere's a widespread perception that workers are abusing the system.He said in his experience, they form a small minority.

"I think it's true that the public has had very little sympathy with injured workers ...until it becomes their father, wife or daughter," said Ellis."It's a system that we totally depend on and it's been totally undermined, and it's upsetting."