A new series of articles by Ron Ellis Q.C., noted administrative law practitioner, academic and former Appeals Tribunal Chair, focuses on justice issues and disrespect for the rule of law in Ontario’s workers’ compensation administrative justice system.
In the first, “Tribunal Denial”, the author places responsibility for the unprecedented growth in the backlog of appeals at the Workplace Safety and Insurance Appeals Tribunal squarely at the feet of the 2010 “regime change” in WSIB management. Committed to reducing benefit costs, the Board’s claims adjudication practice led to a significant jump in Board decisions being appealed to the Tribunal. As Ellis details, this was compounded by the Board’s policy of deliberately ignoring the Appeals Tribunal decisions on legal issues…
The second recently posted “Cost-Averse Adjudication and the Hijacking of the Thin-Skull Rule” deals in depth with another important challenge to the rule of law principles in administrative justice, one that has devastating consequences for workers with work-related permanent impairments.
Historical overview : Status of the thin-skull rule
Here Ellis traces the status of the common-law thin-skull rule in determining permanent disability benefits in Ontario’s workers compensation system from 1915 on.
As the Board’s own General Counsel, Paul Holyoke, submitted in WCAT Decision 63/98R para. 10):
“the ‘thin-skull’ principle, which holds that one takes a worker as one finds him or her, is a cornerstone of the workers’ compensation (and workplace safety and insurance) system…”
Or, as put plainly in the 1950 report of the Roach Commission on the Workers’ Compensation Act:
“Two workmen are struck on the head by a falling object. One suffers a fracture of the skull, the other does not. The one who was injured was found to have a thin skull. Obviously, he should not be penalized on that account.”
This principle was reconfirmed by the Pension Assessment Appeals leading case WCAT Decision 915/1987 :
“In a compensation system injured persons become entitled to compensation because they have been engaged as workers. They have functioned as workers with any pre-existing condition they may have had. It seems wrong in principle that conditions which did not affect their employment as workers should be relied upon to deny them compensation as injured workers…”
Changed adjudication practice preceded new policy on pre-existing conditions
Yet, based on an analysis of Tribunal appeals of Board decisions, Ellis finds WSIB adjudicators applying, from early 2012, a new interpretation of existing, published policies as authorizing the reduction of permanent impairment assessments because of the presumed impact of pre-existing asymptomatic conditions on those impairments – in essence, adopting employers’ counsel interpretation.
This de facto rejection of the thin-skull doctrine continued until the adoption of revised policy on pre-existing conditions in Nov. 2014. Ellis notes that during this 34-month period “without the law”, the Board overturned at least 65 years of settled law “in breach of the legislation and its own policies”, despite Tribunal rulings against arbitrary abrogation of the doctrine.
The cost factor?
Even the Board’s own independent consultant, Jim Thomas, advised the Board in his report for the WSIB Benefits Policy Review (p.7) that cost considerations are not an appropriate or lawful reason for reducing injured workers’ entitlements. However, despite legal challenges, the WSIB continues to argue that section 1 of the Workplace Safety and Insurance Act (the mandate to “provide benefits in a financially responsible and accountable manner”) entitled it to change the longstanding interpretation of the Act’s coverage of the consequences of a work-related injury for the sole reason that the change reduced the system’s costs.
The rule of law – the principles of procedural fairness – requires an adjudicator of statutory rights to be independent and impartial. That means, as Ellis argues, that it does not permit the Board’s adjudicative decisions to be distorted by a declared bias in favour of minimizing the Board’s costs.
For full discussion by Ron Ellis of these issues, see his website Administrative Justice System Reform .