“WSIB to abolish policy that slashed benefits for thousands.” / Sara Mojtehedzadeh (Toronto Star, Dec. 15, 2017)
Responding to widespread criticism that it blames injuries on pre-existing conditions that had no impact on workers before their injury, Ontario’s Workplace Safety and Insurance Board has announced a major policy change in how it considers pre-existing conditions when awarding non-economic loss benefits (NEL) for permanent impairment. As of December 15, the Board will “no longer reduce benefits for people with an asymptomatic pre-existing condition if it is non-measureable”. The WSIB will also reconsider the approximately 4500 decisions made between 2012 to the present where there was a reduction in benefits due to alleged pre-existing conditions. [See further details on WSIB’s Update on Non-Economic Loss (NEL) Award Review].
The controversial practice, first introduced in 2012 with other austerity measures to address a so-called unfunded liability “crisis” , has been challenged for upending the longstanding “thin skull” principle of workers’ compensation which says says workers cannot be discriminated against because of a pre-existing condition that caused no symptoms before a workplace accident. The Workplace Safety and Insurance Appeals Tribunal has agreed, allowing almost 80% of 2012-2106 injured workers’ appeals of Board decisions cutting benefits due to alleged pre-existing conditions.
“Stop cutting benefits based on pre-existing conditions” has been one of the key demands of ONIWG’s Workers’ Comp Is A Right campaign. The practice has also been the subject of a class-action lawsuit (now to be dropped) brought by lawyers Richard Fink and Alan McConnell on behalf of injured worker Pietro Castrillo.
More to do…
While welcome as a step in the right direction, the new policy of not reducing benefits applies only to non-measurable conditions so may still exclude many from fair compensation. As IAVGO lawyer Maryth Yachnin points out:
.. 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.”