The Workplace Safety and Insurance Board (WSIB) recently created a draft policy on Communicable Illnesses as a result of the COVID-19 pandemic; although, the policy is not specific to COVID-19. Submissions were requested from the worker and employer communities and will be reviewed by the Board, with the possibility that the policy will be modified based on the recommendations.
The Injured Workers Community Legal Clinic made a detailed submission to the WSIB with a significant number of recommendations to ensure the policy abides by the Workplace Safety and Insurance Act (WSIA) and the WSIB’s foundational principles. In short, the WSIB’s draft policy is highly restrictive and it does not apply the proper legal test for causation (significant contribution test), which will lead to a disproportionate number of claim denials relative to other types of injuries.
We recommended that the WSIB add definitions of the legal principles to the beginning of the policy, so that decision-makers and injured workers are aware of how the claims should be adjudicated. Specifically, we recommended that the policy contain definitions in plain wording of the following:
1. the standard of proof in workers’ compensation claims: the balance of probabilities;
2. the benefit of doubt provision;
3. the legal test for causation: a significant contributing factor; and
4. the thin skull doctrine.
We proposed that the policy should adopt a framework based on the “nature of the exposure” to assess each case, rather than a model based on the “general population”, which is not individualized to the specific worker.
We also recommended that COVID-19, which has had a devastating death toll greater than anything we have seen for 100 years, should be removed from this policy and that a separate policy for COVID be created, due to the relative newness and evolving nature of the condition.
- Read IWC’s detailed submission and recommendations (available in PDF and DOC formats)
- See also Submission of the OLCWCN (Ontario Legal Clinics’ Workers’ Compensation Network)