“Injured workers routinely cut off WSIB by improper rulings: critics say decisions citing pre-existing conditions unlawfully force vulnerable workers to battle for compensation they’re entitled to.” / Sara Mojtehedzadeh (Toronto Star, Jul. 21, 2016)
(updates Jul. 18 article: “WSIB slashes benefits and forces legal battles: Paramedic who injured his back at work was approved for compensation until a doctor he never met blamed a ‘pre-existing condition’”)
“Four years after making a successful Workplace Safety and Insurance Board claim for an injured lower back, [paramedic Mark] Winegarden was abruptly cut off benefits when the board revisited his file. The sudden ruling concluded his symptoms actually stemmed from a “pre-existing condition” rather than his traumatic accident — a reversal that advocates for injured workers say is unlawful but increasingly common… “. They point to WSIB’s aggressive identification of pre-existing conditions as a means to reduce benefit entitlement in its campaign (under president David I Marshall) to cut the unfunded liability. This intensified, says former Appeals Tribunal Chair Ron Ellis, following the report recommendations on permanent impairment policy by consultant Christopher Brigham – subject of a recent Toronto Star article.
An analysis by the Toronto Star would appear to confirm this – since 2012 about 80% of appeals by injured workers have been successful when before the Workplace Safety and Insurance Appeals Tribunal (WSIAT) over claims denied for an alleged pre-existing condition.
Critics argue that the WSIB is violating a core legal principle (which Board’s own legal counsel in 1998 called the “cornerstone” of Ontario’s workers’ compensation system) – the “thin-skull” doctrine which says injured workers cannot be denied benefits for health conditions that never interfered with their work abilities before an accident.
Forced into lengthy (and stressful) appeal process
With the resulting increase in appeals (up from 3,927 in 2009 to 9,435 last year), injured workers face a growing backlog where the average time to be offered a first hearing before the Tribunal has risen from 6 months in 2009 to 17 months in 2015.
In the words of Mark Winegarden:
The (board) knows a certain percentage are just going to abandon their claims. A certain percentage are going to fight, but they won’t have the resources.
- Ellis, Ron. 2015 Oct. “Cost-averse Adjudication and the Hijacking of the Thin-skull Rule” Administrative Justice Workers’ Compensation
- Backgrounder. 2014 Nov. New WSIB Benefits Policies