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Home / Blog / Benefits / “Caught in bureaucratic limbo” .. struggling to get by

“Caught in bureaucratic limbo” .. struggling to get by

March 23, 2017

“Why a family of six in Oakville is living on $36K a year: the WSIB refused to compensation Steve Rescan, 40, after back issues forced him to stop working” / Lisa Xing (CBC News Toronto, Mar. 22, 2017)

A construction worker for 18 years, Steve Rescan now lives in constant pain while his family struggles to make ends meet. Four years ago he was diagnosed with degenerative disk disease, scoliosis and osteoarthritis. Although his doctors say these conditions were exacerbated by his construction work, his claim for workers’ compensation and appeal to the Tribunal have been denied. In its response to the CBC on this case, the Workplace Safety and Insurance Board (WSIB) states that claims will not be denied because of a pre-existing condition but it must assess the ongoing work-relatedness. Yet after 2012 changes in its practices made it more difficult for workers with pre-existing conditions to receive compensation,  the WSIB’s own statistics show that the percentage of claims in which it has recognized a permanent impairment has dropped from 9.3% in 2010 to 5.9% in 2015. (These pre-existing conditions practices became formal policy in 2014, and are scheduled for review in the 2017 policy review cycle)

Undermining the system – with real-life consequences

Administrative law expert Ron Ellis  has identified the Board’s policy concerning pre-existing conditions as undermining one of the fundamental principles of our workers’ compensation system: the “thin-skull principle.”

Under the thin skull doctrine, you accept your ‘victim’ as you find him: a worker is compensated for her occupational injuries even if they are unexpectedly severe owing to a pre-existing condition. In the workers’ compensation context, this means that compensation is payable even if the injury is prolonged or worsened by other factors. (IWO Backgrounder)

Maryth Yachnin, a lawyer with IAVGO legal clinic interviewed for the CBC report, sees many injured workers with similar cases to Steve Rescan’s since the policy change. “They don’t want to be forced out of work because of disability… and now they’re forced into poverty… What I think about is just how close any of us are to this through workplace injury, by the fallout, by the WSIB not listening to our doctors.”

Related reading:

  • Mojtehedzadeh, Sara. Jul. 21, 2016. “Injured Workers Routinely Cut Off WSIB by Improper Rulings.” Toronto Star. Critics say decisions citing pre-existing conditions unlawfully force vulnerable workers to battle for compensation they’re entitled to.
  • Ellis, Ron. 2016 Aug. 26. “WSIB Not Telling it the Way it is When it Comes to the Thin Skull Rule.” Administrative Justice System Reform
  • Ellis, Ron. 2015 Oct. “Cost-averse Adjudication and the Hijacking of the Thin-skull Rule.” Administrative Justice System Reform

Filed Under: Benefits, Claims, In the News, Poverty

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