Q: In his editorial titled “Ontario’s worker compensation system is under attack,” former WSIB chair Odoardo Di Santo stated that claim denials have increased 50% and benefit payments have been reduced by $631 million. The WSIB responded in a piece titled "Support for Ontario's injured workers is stronger than ever," declaring that the decrease is due to fewer workplace accidents and more effective Return-To-Work (RTW) strategies. What is your perspective?
A: Clear Path has noticed a modest increase in initial entitlement denials over the past five years, but not a 50% increase. We have definitely noticed the WSIB's focus on RTW, which it has been aggressively promoting since the change from the former Labour Market Re-Entry (LMR) program to the current Work Reintegration (WR) program. If long-term wage benefits are down, perhaps it is due to the fact that the entire point of the WR program is to return workers to employment and to avoid long-term claims.
Q: Mr. Di Santo suggests that the primary focus of the WSIB these days is cost containment and working to reduce its unfunded liability. He says this is being done by reducing benefits to injured workers without enough focus on the "revenue side" and believes employers should be paying more into the system. What are your thoughts?
A: We take issue with Mr. Di Santo's claim that the WSIB has not been focused on increasing revenue from employers over the past five years. Here are some specific things that employers have had to manage:
Q. There is much controversy over a proposed WSIB policy that could impact the long-term benefits of an injured worker with a pre-existing condition. There are accusations that the WSIB is already implementing this policy "illegally." Have you noticed this?
A: No, we have not seen implementation of this draft policy and would be curious to see the specific decisions they are pointing to. Typically a policy number needs to be quoted in a decision (or at least the language of the policy would be included).
We have seen some cases where a NEL (Non-Economic Loss) award has been re-determined because medical has come to the file that indicates a pre-existing condition. I think this is fully valid. If the worker has a pre-existing condition, part of the permanent impairment (PI) can be attributable to that pre-existing condition and the costs to the employer should reflect this. One benefit of these decisions is that Clear Path has had some success obtaining SIEF cost relief in cases where the NEL was reduced due to the identification of a pre-existing condition, which is half the battle when requesting SIEF.
Q: Can you help us understand a bit more about this proposed policy?
A: The draft policy regarding pre-existing conditions seems very similar to the Aggravation Basis policy. Under the Aggravation policy, If an incident has aggravated a worker’s pre-existing condition, then the period of disability would be contained to the ACUTE period. If the recovery goes beyond the acute period, the WSIB would attempt to determine when the "normal" healing time for work related impairment typically have ended and then how much is attributable to the pre-existing condition.
This draft policy states that "If the pre-existing condition is degenerative in nature and is impacting the worker’s ongoing level of impairment, then WSIB benefits continue until clinical evidence is presented that the worker is at the point he/she would have been if the workplace injury had not occurred."
By identifying that a pre-existing condition may affect recovery the WSIB is essentially putting a marker in the sand, and then trying to determine the effect of that pre-existing condition or impairment on the recovery period. How long would that recovery have been without the pre-existing condition? You can’t just say that a worker would be at the same point whether they had a pre-existing condition or not, you are now acknowledging that the pre-existing has to impacted recovery.
It looks like this will be a complicated policy to implement. You're getting into an area that is very "foggy." Typically many injured workers won't have the "baseline" medical evidence of where they were prior to the injury. The WSIB won't have a comparator of the worker’s status before the incident on which to base its decisions, they will have to rely a doctor's best guess.
Q: What is Clear Path's perspective on changes at the WSIB?
A: I believe that most employers we know would find the suggestion that the system is pro-employer as "laughable." Perhaps our perspective is biased, but we would suggest that over the past 10 years the system seems to be more worker friendly, not less.
The employers' experience has often been frustrating, with little information being shared and little notice of big changes (that have a significant impact on employers and are implemented in a way that is punitive, such as reserve factors being changed at the last moment.)
That being said, the WSIB has made some strides in becoming a more fair and modern organization:
Structural changes at the WSIB have been a mixed bag for employers. In the past, they used to have a dedicated case manager that likely understood your company and might come out and see your workplace or facility. Now there is a team approach with multiple people on your claims. It can be frustrating to explain the story over and over again.
Ultimately, the WSIB continues to be an expensive and often confusing system for employers. The NEER program alone is excessively complicated and results in different results for small employers vs large ones.
Q: Where can people learn more?
A: We are always available to assist via phone if you have a questions about a claim or generally about WSIB. We also encourage anyone involved in WSIB claims management to participate in one of our upcoming learning sessions, which will increase your knowledge and give you practical strategies to deploy in your workplace.
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