IWC supports the WSIB initiative to develop a policy for communicable illnesses but identifies a number of concerns, among which that it is highly restrictive, fails to apply the standard test for causation and the principle of individualized assessment.
Injured Workers Community Legal Clinic
411-815 Danforth Ave
Toronto, ON M4J 1L2
March 28, 2023
WSIB Consultation Secretariat
200 Front Street West
Toronto, Ontario M5V 3J1
Sent by email to: firstname.lastname@example.org
Dear Consultation Staff,
Re: The WSIB’s Draft Policy on Communicable Illnesses
The Injured Workers Community Legal Clinic is a legal aid clinic with a province-wide mandate. We have specialized in the area of workers’ compensation since 1969. As a legal aid clinic, our services are provided to people with little or no income for no charge. In addition to legal advice and representation, our mandate includes community development, public legal education and participation in law and policy reform.
Thank you for the opportunity to make a submission. We support the WSIB’s initiative to develop a policy for communicable illnesses.
Summary of Positions on the Draft Communicable Illnesses Policy
- Overall, our primary concern with the draft policy is that it is highly restrictive and that it does not apply the proper legal test for causation (significant contribution test), which will lead to a disproportionate number of claim denials relative to other types of injuries. Ultimately, this will create a chilling effect in which workers will not report their claims for these types of illnesses to the Board, based on an assumption that the claim will be denied.
- We would submit that there should be paragraph(s) at the beginning of the Communicable Illnesses Policy clearly explaining in plain wording:
- the standard of proof in workers’ compensation claims: the balance of probabilities;
- the benefit of doubt provision;
- the legal test for causation: a significant contributing factor; and
- the thin skull doctrine.
- Furthermore, the proposed policy should adopt a framework pertaining to the “nature of the exposure” to assess each case, rather than a model based on the “general population”, which is not individualized to the specific worker, and is therefore, contrary to foundational compensation principles.
- It is our clinic’s position that COVID-19 should be removed from this draft policy and that a separate policy specific to COVID-19 should be established with more comprehensive information on the illness, and that it be subject to periodic review.