The results of the Ontario Workplace Safety and Insurance Board’s (WSIB) recently completed review of rejected claims from workers at the General Electric plant in Peterborough caused anger, frustration and disappointment. Of the 233 previously denied occupational disease claims reconsidered, only 71 of the Board’s decisions were overturned, leaving hopes dashed and raising troubling questions about the Board’s ability to deliver justice.
WSIB’s review was initiated last September following an unwavering campaign by the injured workers and their families, supported by occupational health research, and extensive media coverage of the lethal legacy of a worksite in which workers were exposed over many years to more than 3,000 toxic chemicals, including at least 40 that are known or suspected to cause cancer. The announcement of the review, with its mandate “to apply any new evidence as well as updated scientific research that linked chemical exposure to particular diseases”, was met with cautious optimism. At the time Robert DeMatteo, a lead author of the GE retrospective exposure study, urged vigilance, voicing his preference for an independent review given the Board’s practices of rejecting or denying evidence presented by workers’ advocates, documented in IAVGO Community Legal Clinic’s report No Evidence.
Failing workers with occupational disease claims
Following the review’s conclusion, the occupational health researcher and co-author Dale DeMatteo delivered a stinging verdict on the process, calling for a public inquiry to address the “culture of denial which results in only a small fraction of diseases being recognized as work-related, and consequently distorts assessment for regulatory and prevention purposes while shifting the burden of work-related disease onto our public health care system … ”
The researchers highlighted systemic barriers faced by workers filing occupational disease claims, especially complex claims involving multiple hazardous substances:
- An onerous burden of proof that was recently rejected by the Supreme Court of Canada (in the case, 2016 SCC 25, intervenors the Ontario Network of Injured Workers Groups (ONIWG) and IAVGO successfully argued that definitive scientific evidence on work-related causation rarely exists and that requiring such a restrictive standard of proof undermines the legislative goals of workers’ compensation)
- Overemphasis on workers’ medical histories rather than exposures at work and scientific evidence of harm
- Disregard of cancer clusters as evidence of work-relatedness
- Ignoring workers’ treating doctor’s assessments (a focus also of the Workers’ Comp Is a Right Campaign)
- The refusal to consider long-term exposure to a complex mix of chemicals in the absence of exposure controls, which have been documented at GE
On the horizon
Among options being considered by then Minister of Labour Kevin Flynn was a new system of “presumptive entitlement”, which would automatically entitle anyone who worked at GE between 1945 and 2000, and later develops cancer, to compensation. In April of 2018 the Minister announced a review of how work-related cancers are evaluated, led by independent expert Paul Demers and the Occupational Cancer Research Centre, to ensure the compensation system takes into account best practices and the most up-to-date medical science, including the effects of exposure to multiple substances. Ontario’s new government is currently assessing the Demers review along with other Ministry of Labour current and proposed grant programs. GE retirees recently met with their new MPP Dave Smith to ask for his support in pursuing their workers’ compensation claims.
While the real burden of work-related disease is borne by injured workers and their families, occupational disease claims are far more expensive for the WSIB than other types of injuries. As reported in the Toronto Star, WSIB spokesperson Christine Arnott says that the Board has recently contracted with the accounting firm KPMG to “assess the efficiency and effectiveness” of its occupational disease program.
The injured worker community is concerned about the prospect of another “Value for Money” audit by KPMG. The 2010 Audit they conducted on the Adjudication and Claims Administration Program effectively laid the groundwork for the extensive cuts to injured worker compensation over the past several years, including the aggressive attempts at forcing workers back to work before it is safe to do so, blaming ongoing disabilities on “pre-existing conditions” that never affected people before their work injuries, and an overall shift to an insurance mindset within the compensation system.
Given this experience, there is a fear that KPMG will take a similar approach to its audit of the occupational disease program, leaving workers and their survivors, who are already having to struggle so much for recognition, in an even worse position.
- Editorial Board. 2018 Aug. 21. “A Review of Denied Claims by GE Workers Raises Troubling Questions about the WSIB.” Toronto Star
- DeMatteo, Robert & Dale DeMatteo. 2018 Aug. 19. “Denial of GE Employees Health Claims Requires a Public Inquiry.” Toronto Star
- Mojtehedzadeh, Sara. 2018 Aug. 19. “Hopes Dashed for Former GE Peterborough Workers After Review of Cancer Claims.” Toronto Star
- Editorial. 2018 Aug. 8. “WSIB Must Review Rejected Peterborough GE Health Claims; There is a Large Body of Evidence That Shows the Method Used by WSIB to Rule on Claims is Flawed.” Peterborough Examiner
- Submissions in response to the KPMG Value for Money Audit on the Adjudication and Claims Administration Program: Injured Workers Community Legal Clinic (IWC) | IAVGO | Ontario Legal Clinics’ Workers’ Compensation Network | ONIWG