WSIB fundamentally changed the original mandate of Ontario’s system – to compensate for injury – when it brought in its 2014 pre-existing conditions policy. This new policy allowed the Board to deny benefits by blaming disabilities on age-related “degeneration” and other pre-existing conditions rather than on the work injury – even if these conditions had not affected worker’s ability to do the job or had shown no symptoms (were asymptomatic).
Policy looks to deny, not allow
- the accepted standard causation test of whether the work was a “significant contributing factor” in the development of the condition (workplace injury has only to be an important, but not the sole factor), and
- the “thin skull rule” (this means ‘take the worker as you find him/her’. A worker should not be penalized because of a pre-existing condition that did not affect her capacity to do the job but made her vulnerable to greater injury than another worker).
Recent changes a “cautious step forward”?
The injured worker community, legal representatives and labour waged an intensive fight-back campaign. A class action lawsuit and media spotlight also focussed attention on the issue, in December 2017 the WSIB issued a policy clarification . In it the Board announced that it will no longer reduce non-economic loss (NEL) awards for injured workers as a result of non-symptomatic pre-existing conditions, and will reconsider NEL lump sum settlements that were awarded and then reduced based on asymptomatic pre-existing conditions.
However further action is needed. These latest changes to the policy apply differently to decisions made before or after 2014; largely disregard psychological conditions; fail to address the needs of those already denied a NEL award and of the many denied wage-loss benefits because of asymptomatic pre-existing conditions.
- Read an overview of recent policy and practice (the underlying factors and why injured workers are still negatively impacted) prepared by IWC’s Orlando Buonastella and David Newberry for RankandFile.ca (Feb. 15, 2018).
- Mojtehedzadeh, Sara. 2017 Dec. 15. “WSIB to Abolish Policy that Slashed Benefits for Thousands.” Toronto Star
- Ontario Network of Injured Workers’ Groups. 2017 Sep. Workers’ Comp Is a Right: We Demand Stop Cutting Benefits Based on Pre-existing Conditions.
- Burke, Ashley. 2016 Oct. 27. “WSIB’s ‘Devastating’ Compensation Policy All About Board’s Bottom Line, Lawyers Charge: Some Injured Workers Have had Benefits Cut by Half Since Pre-existing Conditions Policy Came into Effect.” CBC News Ottawa
- Ellis, Ron. 2015 Oct. 13. “Cost-averse Adjudication and the Hijacking of the Thin-Skull Rule.” Administrative Justice in Workers’ Compensation
- IWO Backgrounder. 2014, Nov. New WSIB Benefits Policies – what led to the current cutbacks
- Injured Workers’ Consultants. 2014, Apr. 30. Submissions on WSIB Draft Policies. Toronto: IWC