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Taking action on Board’s pre-existing conditions policy

In May 2017 Ontario’s Appeals Tribunal (WSIAT) with Decision 468/17 again challenged the Workplace Safety and Insurance Board’s use of “pre-existing conditions” to reduce the Non-Economic Loss (NEL) benefit in its adjudication of claims for a work-related permanent disability. Administrative law expert Ron Ellis, in his September 14 blog post, discusses the basis for the decision, its ‘surprising though convincing’ interpretation of the Board’s operational policies. As with the three previous cases cited by this decision, the Tribunal concluded that the WSIB’s 2014 Operational Policy 18-05-03 “does not, on its own terms, in fact authorize the reduction of permanent impairment ratings on the basis of the existence of pre-existing, asymptomatic” conditions, in this case degenerative disc disease. He indicates, however, an expectation that the Board will continue to turn a blind eye to Tribunal interpretations and persist in its adjudicative practice, even while knowing the cuts made may eventually be reversed on appeal.

Policy incompatible with the Act

The recent case was, the former Chair of the Appeals Tribunal suggests, a missed opportunity. The current situation calls for a response in measure with the urgency of addressing the root problem: OPM 18-05-03 and associated policies have upended a longstanding and core principle of our workers’ compensation system – the thin skull doctrine (the must-take-one’s-victims-as-one-finds-them-doctrine) respecting pre-existing conditions. He proposes that rather than challenge interpretation of the 2014 pre-existing conditions policy, there is a need to have the Courts review its very legality.

“Results from” … and the thin skull doctrine

As Ron Ellis further details in his September 28 blog post, the process for obtaining the needed judicial review is arduous but vital. The Board’s decision to dispense with the thin skull doctrine for injured workers’ benefits has implications far beyond NEL awards.

The problem is that it implicitly reflects a new and restricted interpretation of the (Workplace Safety and Insurance Act’s) ‘resulting from’ language” used in the Act’s definitions of benefit entitlements for permanent impairments.

Whereas the courts, WSIAT and (before January 2012 the WSIB) have consistently interpreted the phrase ‘results from’ in accident benefit cases as denoting the Legislature’s intent that the thin skull doctrine applies, the Board’s new Operational Policies ignore that law. As noted, in practice Board adjudicators are granting entitlement only for the degree of permanent impairment that the work-place injury would have caused had the worker’s pre-injury physical and mental condition been what the Board would consider “normal” – the exact opposite of the thin skull doctrine.

Public-interest application to the courts?

While courts generally require, under the “prematurity doctrine”, applicants for judicial review to first exhaust the administrative review process (here section 126 procedures), there exists the option of a public-interest application to waive this and allow a direct challenge to the lawfulness of the Board’s dismissal of the thin-skull doctrine. Even if the court chooses to enforce the prematurity doctrine, filing such an application would, the author proposes, raise public awareness of the policy changes undermining Ontario’s workers’ compensation system and signal the injured worker community’s commitment to challenge them.

Until remedied, the situation as it stands makes fair compensation not a right, but a possibility only available to those individual injured workers with enough financial, physical and emotional resources to put themselves through a lengthy appeal process.

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