The staff of Injured Workers’ Consultants were saddened by news of the recent death of Terence Ison. We join the legal and injured worker community in wishing to recognize his lifelong and unique contribution to the development of law and policy and research in workers’ compensation. He will be profoundly missed, both professionally and personally.
When Justice Sir William Meredith laid out the foundations of Canada’s workers compensation system a century ago, he hoped and trusted that future minds would understand the underlying balance (“historic compromise”) —and seek to protect, sustain and to develop the system along those fundamental understandings.
Professor Ison had that requisite overarching understanding together with a rare combination of academic training and “hands on” administrative and adjudicative practical experience. Professor Emeritus of the Osgood Hall Law School of York University, former Chairman of the Workers’ Compensation Board of British Columbia, and most recently collaborator at the Centre for Research on Work Disability Policy, he dedicated himself to writing about workers’ compensation, teaching it, and practicing it. Much of his work involved investigating how systems work, and the significance of the choices made in system design.
Among the many issues addressed, the following had particular impact for Ontario:
As Chair of the WCB of British Columbia he wrote Decision #8 (1973) to remedy the obvious injustices in measurement of permanent partial disability, especially spinal injuries, in terms of compensating for financial loss. His thinking about compensation for permanent partial disability was important in the 1980’s in Ontario when commissioned by the Ontario government to provide an analysis of the recent work by Paul Weiler on Ontario’ s workers’ compensation system. It was Professor Ison’s critique of the”actual wage loss system” and of “deeming” , based on his own studies of other jurisdictions already using these systems, along with the vigorous efforts of the injured worker and labour movements, that produced changes to help protect workers against the harshest real-world aspects of these systems.
His alarm bell on these concepts rang loud and clear. For example, he pointed out that the actual wage loss method required constant monitoring and assessment of the worker’s situation—it would, he said, “be almost like a sentence of perpetual probation.” The legislature thus put a final review in place. Likewise, he pointed out that deeming would significantly degrade true rehabilitation—that workers would become afraid to try jobs, and that programmes would be more about benefit control than actual employment value. The problem of how best to compensate for permanent injury, especially partial disability, is still one that besets us and at present is perhaps in a crisis in Ontario.
How our compensation system serves the injured individual was another of his foremost preoccupations. His 1986 Canadian Bar Review 65: 605-637 article: “The Therapeutic Significance of Compensation Structures,” remains an important contribution to our understanding of the power of administrative process in helping or harming the person seeking compensation. There is increasing recognition that the societal view of injured workers, and more particularly the administration of the compensation system is plagued with mistrust of injured workers. This stigma, as he so thoroughly explained, does harm to individuals and worsens their conditions and delays or prevents their recovery -problems exacerbated in what has become a highly adversarial process. Problematic use of expert evidence and medical opinion in claims adjudication A 2008 article, “Statistical Significance and the Distraction of “Scientific Proof” (Canadian Bar Review 87: 11-159), highlighted another ongoing problem in claims adjudication, the misuse of “expert evidence” and medical opinion.
His recent writings (including the 2013 article “Reflections on Workers’ Compensation and Occupational Health and Safety”, Canadian Journal of Administrative Law and Practice 26: 1-22) further enhanced, through a discussion of legal history and changing public policy, our understanding of current situations. In his keynote speeches, however, to a 2012 International Symposium on the Challenges of Workplace Injury Prevention Through Financial Incentives and at the international 2013 Meredith: No “Half-Measures” Conference, his ultimate message was — you cannot fix everything at once, and so start with the most important — and that, he said, is to abolish experience rating. When first put forward as a health and safety incentive by Paul Weiler, Professor Ison was swift to identify experience rating as a highly problematic concept that would complicate our system and make it adversarial with all the problems consequent to that. And indeed, his insight was confirmed by the 2012 Arthurs WSIB Funding Review report which found the experience rating program to have produced a “moral crisis” for the Board.
Marion Endicott (IWC) , in her tribute to Professor Ison on his receipt of the 2012 Ron Ellis Award for Excellence in Workers Compensation Law (adapted above), speaks for so many in her concluding words:
We thank you for your ideas and your understandings and the commitments you have made to achieve them through the years… Yours are the concepts that would provide for justice and sustenance of the human spirit for those who have met injury or illness, and by virtue of having such a system—for us all. Yours are the ideas and understandings that ultimately could make us proud of ourselves as a society and provide, on a collective liability basis, as Sir William Meredith put it: full justice, not half measures.”