Submission notes that almost all of the benefits outlined in the Independent Living Policy Suite legally (under ss. 32, 33 of the Workplace Safety and Insurance Act) are and should continue to be available to all injured workers – not only those defined by the WSIB as “severely impaired.” Brief also makes recommendations on criteria for admittance, cost and amount of the Independent Living Allowance, timing and review of benefit availability.
Injured Workers Community Legal Clinic
October 14, 2022
WSIB Consultation Secretariat
200 Front Street West
Toronto, Ontario M5V 3J1
Sent by email to: consultation_secretariat@wsib.on.ca
Dear Consultation Staff,
Re: Consultation on Serious Injury Program and Independent Living Policy Suite
Injured Workers Community Legal Clinic (IWC) 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 at no charge to people with little or no income. In addition to legal advice and representation, our mandate includes community development, public legal education, and participation in law and policy reform.
We are pleased to provide input regarding the WSIB’s Serious Injury Program (SIP) Value-for-Money Audit (VFMA) Review of the Independent Living policy suite. We would however note that the VFMA audit did not provide an opportunity for input from the injured worker community, and that the very short period given to provide feedback now is insufficient to adequately address these important issues.
- We recommend that the WSIB and organizations which it hires should be diligent about providing adequate opportunities for consultation.
Furthermore, we note with concern that the WSIB has increasingly used Value for Money Audits in order to review its programs. We do not believe this is an appropriate tool with which to assess a public social safety net. VFMAs inherently approach issues from a financial, cost savings, and efficiency perspective.
- The WSIB’s programs should be evaluated on the basis of justice, fairness, basic human rights, and whether the WSIB is fulfilling its legal obligations to injured workers.
That being said, we are always interested in providing input to the WSIB in the hopes that its programs will be adjusted to ensure full justice for injured workers.
Independent Living Support is for All Injured Workers in Need
A very important preliminary point we would like to make is that almost all of the benefits outlined in the Independent Living Policy Suite, including support for independent living, necessary home or vehicle modifications, and other health care benefits such as support from a personal attendant or assistive devices, legally are and should continue to be available to all injured workers – not only those defined by the WSIB as “severely impaired.” The restriction on benefits to severely impaired workers, meaning those uniquely available to that subset of workers, only relates to the specific benefit for improving the quality of life mentioned in s. 32(h) of the Workplace Safety and Insurance Act (WSIA).
To be clear, we are referring to the fact that ss. 32 (a-g) and 33 of the WSIA outline what “health care benefits” are available to all injured workers:
32 In this Part,
“health care” means,
(a) professional services provided by a health care practitioner,
(b) services provided by or at hospitals and health facilities,
(c) drugs,
(d) the services of an attendant,
(e) modifications to a person’s home and vehicle and other measures to facilitate independent living as in the Board’s opinion are appropriate,
(f) assistive devices and prostheses,
(g) extraordinary transportation costs to obtain health care,
(h) such measures to improve the quality of life of severely impaired workers as, in the Board’s opinion, are appropriate. 1997, c. 16, Sched. A, s. 32.
Entitlement to health care
33 (1) A worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury and is entitled to make the initial choice of health professional for the purposes of this section.
As you can see, unlike section 32(h), Section 32(e), for example, is not restricted to “severely impaired workers”. It provides for “modifications to a person’s home and vehicle and other measures to facilitate independent living as in the Board’s opinion are appropriate”. This shows the original intention of the legislature to provide an independent living allowance more broadly than a quality of life allowance to those injured workers whose needs are appropriate for the allowance.
In practice, our clinic has seen the WSIB (and WSIAT) approve lots of requests for items covered by s.32 (a) to (g), such as home and vehicle modifications and scooters, for injured workers below the SIP threshold. We have however also had the occasional experience of injured workers being denied assistive devices, for example, with the rationale that the injured worker is not part of the SIP. This is wrong, and the policies should be clarified to avoid injured workers having to fight through the appeal process to get the support and care to which they are legally entitled.
- The Independent Living Policy Suite should explicitly reference the fact that any injured worker, not only those in the SIP, may be entitled to the service or benefit to which the policy relates, other than measures to improve quality of life, which falls exclusively within the scope of s. 32(h).
We would note that the independent living allowance (ILA) is badly named if it is meant to apply to only those in the SIP, since, as you can see from s. 32(e), all injured workers are entitled to measures which facilitates independent living. While the ILA policy does list examples of items or services which relate to “quality of life” and are therefore uniquely available to those in the SIP (e.g. hobby equipment), the policy also gives examples of services/care which should not be uniquely available to those in the SIP because they are necessary for independent living (e.g. housekeeping, snow shovelling…).
Since the legislation does not restrict support related to independent living to serious injuries, one way to address this might be to pro-rate the ILA based on NEL rating up to the SIP threshold (so that those in the SIP always get the full ILA amount. In other words, if the SIP threshold was lowered to a more appropriate 40%, injured workers whose permanent impairment rating is between 10% and 39% could be given a partial independent living allowance that is linked to their percentage of impairment. The details of this and review of other options should of course be canvassed with the wider community through a real and substantive consultation.
In summary, we presume that benefits under s. 32 (a) to (g) will continue to be available to all injured workers on the basis of need, and that when this consultation refers to serious impaired workers and the serious injury program, we are only looking at “quality of life” benefits and access to specialized staff under s. 32 (h). We believe the existing policies should be amended to explicitly state this, in order to comply with the legislation.
Criteria for Admittance to the SIP
Our basic position is that there should be a hybrid approach to admittance into the SIP. Injured workers above a specified NEL (or PD) percentage should automatically qualify for the SIP. In addition, there should be discretionary admittance to injured workers below the specified threshold based on need (with exact criteria to be established after further, more rigorous consultation).
An individualized assessment of each injured workers’ needs and abilities would be consistent with the obligation to determine each case on the basis of the merits and justice and would enable the Board to recognize the individual circumstances of each injured worker. Two people may have the same disability rating but very different needs to support independent living. Two people may have the same needs but very different disability ratings. A 20% and a 70% disability may both leave the injured worker unable to shovel snow, paint his or her house, drive a car etc.
However, too much individualized assessment can be drain on administrative resources. Workers’ compensation funds are directed away from injured workers. An individualized assessment system can only succeed if injured workers have confidence in the decision makers and the decision-making process. For a significant number of injured workers, that trust is not there. It is likely that many individualized assessments would be appealed, unless they gave the maximum to the injured worker. A decision-making system that costs more to operate than it pays out to injured workers would be wasteful. Injured workers have said that they want as much certainty, and as little discretion as possible, while still allowing for the merits and justice of the case.
A threshold type system, like the current SIP, is open, simple to apply, and provides certainty. That is why we advocate for the continued use of such a system. However, we recommend a hybrid approach with additional discretionary admittance to address the fact that relying solely on a threshold approach has unfairly left out many injured workers who deserve the additional care and benefit available through the SIP. Workers with relatively low NEL impairment ratings may be receiving full Future Economic Loss benefits or Loss of Earnings benefits because they are completely unable to work. These injured workers may merit admittance into the SIP and the full ILA amount, regardless of whether they meet the threshold percentage. And beyond those cases, there are also workers with disabilities such as repetitive strain injuries who have relatively low awards for NEL/PD but major difficulties with independent living. They may be unable to cook, or pick up their children or paint their apartments or do any more than drag themselves to work and then go home to rest. There must still be an opportunity to request an individualized assessment in some circumstances.
- We recommend that discretionary criteria be developed with further, more rigorous consultation with the injured worker community and a review of what type of people/injuries should be captured within the program that might otherwise be missing using only the threshold approach.
In terms of where the line should be drawn under the threshold system, we believe that 60% is too high.
- We recommend that the threshold percentage be lowered after more thorough review and consultation.
For example, under the AMA Guide currently in use, 30% represents the maximum award for an injury to the spine. It would be reasonable that a person with a permanent injury to the spine rated at the most extreme level recognized by the WSIB rating scale should be considered to have a serious injury. Another example is that the WSIB’s policy for “Assessing Permanent Impairment Due to Mental and Behavioural Disorders” describes a person with a 40-45% psychological NEL as someone whose “everyday activities [are] restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.” These are but two examples of situations where workers should likely be classified as “seriously injured” but are excluded from the SIP as a result of the current threshold.
Cost & Amount of the ILA
We believe it is very beneficial for seriously injured workers to have a discretionary and reliable amount of money that they can use to improve their quality of life. Injured workers have told us time and time again how stressful it is to continually have to deal with the WSIB. One injured worker recently “joked” that they wish they could get a divorce from the WSIB, as a way of explaining their frustration at being stuck in a relationship with the WSIB which they no longer wanted. This experience of interactions with the WSIB negatively impacting injured workers’ mental health has been validated in a recent study by the Institute for Work and Health entitled “The Association Between Case Manager Interactions and Serious Mental Illness Following a Physical Workplace Injury or Illness: A Cross‐Sectional Analysis of Workers’ Compensation Claimants in Ontario”.
- For this and other practical reasons, the ILA should continue to be a fixed, universal sum, but the WSIB ought to consider increasing the amount as it does not realistically reflect the cost of living/services/equipment it is meant to cover.
While we fundamentally disagree with making decisions about workers compensation entitlements based on cost, we know that the cost of expanding any benefit will always be a consideration for the WSIB. We would therefore like to point out that relatively few permanent impairment awards are made and those awards are relatively low. WSIB statistics show that roughly 1 in 10 allowed claims receive a permanent impairment award. For example, there were 118,451 allowed claims in the year 2021. There were 15,508 NEL awards given that year. These are not the same cases but the proportion is evident.
And NEL awards have significantly decreased over the years. NEL payments peaked in 2008 at $129.4 million, but by 2016, they dropped to $40.1 million. After that the numbers increased slightly, and by 2021 NEL payments reached $65.6 million. This lowering dollar figure almost certainly corresponds to significantly lower NEL percentages being awarded (which is very concerning and should be reviewed by the WSIB to ensure fairness and adequately meeting its legal obligations to compensate injured workers).
In other words, the number of 60% or greater NEL awards made by the Board is extremely limited. In other words very few injured workers qualify for the SIP. In fact, the VFMA noted that the serious injury program is serving fewer workers, even as more workers are being injured. As the auditors observed, there was an 11.9% decrease in unique serious injury program claims despite a 19.5% increase in WSIB claims 2014-2018.
Therefore, a system that expands entitlement to the full and SIP to permanent impairment/disability ratings above a reasonable threshold and allows additional discretionary admittance will introduce a much needed element of fairness and respect for injured workers dignity and independence without significant cost consequences for the Ontario WSIB.
It is also worth noting the fact that employers have recently received significant premium reductions/rebates. Any attempt to limit rather than expand entitlement to injured workers at this point in time would be grossly unfair considering the broader financial trends at the WSIB. The average premium rate per $100 of insurable earning was $2.59 in 2016 and declined to $1.30 in 2022. This represents a 49.8% reduction in 6 years. Furthermore, approximately $1.5 billion was refunded to employers this year. In short, employers have received billions of dollars in premium rate reductions and refunds, while injured workers have received no additional benefits or services. In no way should the WSIB be looking to impose further austerity on injured workers via cutbacks in essential programs and services such as the ILA and SIP. Rather, it should be looking to expand such entitlements.
Timing and Review of Benefit Availability
The effect of a workplace injury and an injured worker’s legal entitlements under the WSIA start on the date of the workplace accident.
- Therefore, benefits and services in the independent living policy suite should be considered from the date of accident.
Injured workers should not have to wait until their injuries or needs are permanent in order to receive benefits and services to facilitate independent living. There is no time limit in WSIA on health care and nothing that would require time to pass before benefits and services are provided.
There are many situations in which additional support immediately after a traumatic accident will be required on a short-term or temporary basis while the injured worker recovers.
- In those instances where a person is projected to require assistance with independent living or additional healthcare on a temporary basis, or where it is unclear if those needs are permanent, it is appropriate to review a person’s eligibility for such benefits. However, there should be no ongoing reviews of a person’s entitlement to such benefits or eligibility to the SIP once they have been assessed for a NEL and their condition is deemed permanent.
Just as there is a lock in date for loss of earnings benefits, there should be no review of eligibility or entitlement more than 72 months after the injury unless there is a deterioration of an injured worker’s condition.
- An injured worker who has deteriorated or suffered a new workplace accident should be reviewed for eligibility for further benefits and admittance into the SIP.
We see no logical basis for limiting entitlement to single accidents. A person’s needs would be the same whether they became a quadriplegic from one workplace accident or two.
Conclusion
In short, our recommendations can be summarized as follows:
- The Independent Living policy suite should explicitly reference the fact that any injured worker, not only those in the SIP, may be entitled to the service or benefit to which the policy relates, other than those relating to improved quality of life, which falls exclusively within the scope of s. 32(h). Entitlement to the the independent living allowance should be reviewed (with further consultation) to comply with the legislation, since support for independent living should not be limited to those with serious injuries.
- We recommend that the threshold percentage for admittance into the SIP be lowered, with the specific percentage being chosen after more thorough review and consultation.
- We recommend that additional discretionary criteria be developed after further, more rigorous consultation with the injured worker community and review of what type of people/injuries should be captured within the SIP that might otherwise be missing using only the threshold approach.
- Benefits and services in the independent living policy suite should be considered from the date of accident, and there should be no ongoing reviews of a person’s entitlement to benefits under this suite of policies once they have been assessed for a NEL and their condition is deemed permanent, and certainly not after lock in, unless an injured worker suffers a deterioration or a new accident.
- The ILA should continue to be a fixed, universal sum, but the WSIB ought to consider increasing the amount.
In addition to our specific submissions, we endorse the submissions made by the Ontario Federation of Labour, the Office of the Worker Advisor, our legal clinic colleagues, and those of injured worker groups.
Thank you for considering our comments and recommendations. We hope to continue this conversation, in particular through a follow up consultation regarding the exact threshold and discretionary criteria for admittance into the SIP.
Injured Workers Community Legal Clinic
Per Kathrin Furniss