Although the WSIB Operational Review report (2020) confirmed that the Workplace Safety and Insurance Board’s appeals process can be slow and complicated, the solutions proposed by KPMG’s 2022 Value for Money Audit of the Dispute Resolution and Appeal Process being considered in the current WSIB consultation sacrifice fair compensation for an alleged administrative ‘efficiency’. See below an overview of why the recommendations , if adopted, would lessen injured and ill workers’ access to justice, and what action you can take to protect your rights.
The network of lawyers and legal workers who handle workers’ compensation cases in Ontario’s 71 legal aid community clinics recently provided feedback on the KPMG recommendations to the WSIB Chair. Their detailed analysis and commentary highlighted some key concerns:
- The auditor’s report makes a number of errors which demonstrate a basic lack of understanding of Ontario’s workers’ compensation system and its legislation;
- The report implies that there are too many worker appeals and that they are not resolved in an appropriate amount of time – yet the number of appeals filed with the WSIB has dropped 37% from 2000 to 2021, and the Board has since 2017 exceeded its own targets for the percentage of appeals resolved within six months;
- As response to their manufactured crisis, the auditors recommend 3 new unrealistically short time limits and the reduction of one existing time limit. Injured workers and their worker representatives – if they in fact are able to secure legal representation – will find it difficult, if not impossible, to gather needed evidence and prepare required documents within these impractical timelines. The end result? Appeals suppression on a large scale as appeals are arbitrarily closed or abandoned;
- Despite its assertion of overload, the review gives little consideration to issues of efficiency and effectiveness by ignoring WSIB staffing levels and, apparently, the advice of front-line staff or additional burdens that will be imposed by the timelines;
- Similarly, the auditor does not address concerns with the quality of decision-making. Recent Freedom of Information data supplied by the WSIB reveals that only 27%-35% of worker appeals were denied at WSIAT. Therefore more than half of ARO decisions appealed by injured workers were wrong, revealing flaws in adjudication at the Board and confirming findings of IAVGO Clinic’s earlier 2017 report No Evidence.
- Given the proposed new roadblocks in filing appeals, the recommendation to explore incentive/disincentives to use instead of Alternative Dispute Resolution threatens to hold injured and ill workers hostage by offering speedy payment of reduced benefits.
In brief, the VMFA recommendations on time limits and additional procedural barriers place injured workers “under threat again” (Hamilton Spectator, Jun. 2). The impacts of the proposed new measures on an injured or ill worker seeking to appeal are being discussed at length in meetings of injured worker groups and their advocates around the province. Some of these consequences are shared in the letter of the Ontario Legal Clinics’ Workers’ Compensation Networks and other responses, including the Complaint to the Ombudsman (Apr. 25) by the Thunder Bay & District Injured Workers’ Support Group & Injured Workers Community Legal Clinic.
New Developments – what you can do to protect the right to appeal
The WSIB recently announced on its website that there will be a limited “consultation”. The deadline is July 21st to send comments in writing by email. There will be no public hearings and no discussion with WSIB officials.
An implementation plan by the WSIB with staff teams already in progress and detailed time lines to put the KPMG proposals into effect (provided through freedom of information request) casts doubt on whether the consultation will have any impact on the changes.
On Tuesday June 27th the Thunder Bay and District Injured Worker Support Group held a public meeting of injured workers and advocates on Zoom to discuss this. A letter from the Workers’ Health and Safety Legal Clinic to the WSIB President criticized the decision to commence a two-year process to implement massive changes not seen since the introduction of the Workplace Safety and Insurance Act, 1997, with a consultation during the summer months when stakeholders are on holidays and the Ontario Legislature is not even sitting.
Some participants committed to put their concerns in writing to the WSIB at email@example.com. It was noted that all comments will be published and should be respectful.
Some participants felt that the process was unfair and must be changed. The lack of notice is an issue: No notices were sent to injured workers but hundreds of thousands of injured workers will be affected by these changes and they do not know what is being proposed. Some are writing to the WSIB, urging the Board to extend the consultation and notify all injured workers about the proposals and consultation in their own language.
The lack of legal expertise in the process is also an issue. The right to a fair hearing is the cornerstone of our administrative justice system. In past policy reviews the WSIB appointed outside legal experts to direct the consultation. Jim Thomas, former Vice Chair of the WSIAT and Harry Arthurs, former Dean of Osgood Hall Law School were appointed by previous WSIB administrations to design policy consultations, hold public hearings and prepare a report. Some participants are writing to request the involvement of someone like a judge or administrative law expert.
All participants expressed concern that the WSIB has shown no interest in the opinions of injured workers, legal experts or any other stakeholders and therefore public and political pressure will be necessary if injured workers are going to be heard. In addition to sending comments to the WSIB consultation email, they will be sending copies to the Minister of Labour, their own MPP and the Chair of the WSIB. Those addresses are set out below. If you are concerned about losing the right to appeal, please join the others in stating your concerns to the WSIB and politicians.
Download a list of KPMG Action Contacts.