Cutting benefits in spite of the evidence – IAVGO Community Clinic’s recently released report, No Evidence: The Decisions of the Workplace Safety and Insurance Board, is a strong indictment of the Board’s “bad faith decision-making”. The analysis of the Appeals Tribunal 2016 decisions adds to the growing documentation on how cost-cutting measures, adopted in the WSIB’s “transformation” to eliminate an unfunded liability, are further harming injured workers’ health and financial recovery.
Main findings from the review of caselaw on WSIB adjudication (see also Chart) point to the regular disregard of the treating health professional’s medical opinion about whether return to work is safe; the reversal of benefits promised to the most vulnerable injured workers (those with permanent disabilities approaching “lock-in” of benefits); wrongful denial of compensation based on “little or no evidence” of pre-existing conditions; and undue targeting of workers with psychological injuries for denial of claims and for surveillance.
Among other recent reports on the WSIB’s inappropriate management of medical evidence in determining benefit and treatment entitlement : ONIWG/OFL’s Prescription Over-ruled (2015) and Submission to the Ontario Ombuds Office (2016). (The WSIB’s subsequent internal review into its use of medical consultants’ opinions in decision-making drew criticism for excluding relevant cases and narrowly addressing only one symptom of the broader systemic issues raised). The May 2017 revision of WSIB’s Administrative Practice Document Weighing of Medical Evidence to clarify communication with the treating health professional is perhaps some acknowledgement of concerns expressed by injured workers, legal advocates and doctors.
Objective and scientific evidence – appropriate or available?
A number of the doctors surveyed in the 2016 Institute for Work and Health study, led by Agnieszka Kosny, on the role of health-care providers in return to work, noted challenges in meeting demands for objective medical evidence often not available in cases involving complex or multi-causal illnesses, chronic pain or mental health conditions. Notwithstanding the 2016 Supreme Court ruling (2016 SCC 25), demand for scientific certainty sets a high bar in cases of occupational cancer, the number one cause of workplace death, and other work-related disease – particularly “when only one per cent of the 100,000 chemicals used in the workplace have been thoroughly tested for health risks.” (Connie Muncy, American Society of Safety Engineers 2017 conference). As detailed in recent coverage of work exposure study of former GE workers in Peterborough and investigations by the McIntyre Powder Project on neurodegenerative and respiratory impacts, having occupational disease compensation claims accepted is often an arduous and lengthy process.
“Expert” evidence – or guns for hire?
A recent appeal decision, Bruff-Murphy v. Gunawardena, 2017 ONCA 502 lambasted psychiatrist Dr Monte Bail for presenting biased evidence. It also found the court failed to play its proper gatekeeper role by not excluding this testimony so as to ensure the integrity and fairness of the proceedings. This is far from the first time the issues of whether expert witnesses should be disqualified for history of bias and their duty of impartiality have been raised. Noting that at least three times in recent months Ontario courts have found the medical testimony of doctors relied upon by the WSIB to be less than reliable or credible, IAVGO poses the question why we aren’t holding their feet to the fire and insisting that the Board and Tribunal properly assess experts’ credentials and validity of their evidence?