Changes to WSIB pre-existing conditions policy a cautious step forward

By Orlando Buonastella and David Newberry

The Workplace Safety and Insurance Board (WSIB) recently announced that it will no longer reduce certain kinds of benefit payments for injured workers as a result of non-symptomatic pre-existing conditions. The change comes as a result of a long struggle by of injured workers, labour activists, and legal representatives, who have been fighting against this use of “pre-existing conditions” as an excuse to reduce or deny benefits to injured workers. It represents an important step in the battle towards justice for injured workers. While it is important to celebrate every victory, we must also look critically at the change and its limits in the hands of a bureaucracy like the WSIB.

What is a pre-existing condition?

Everyone’s body shows wear and tear during as they age. For the most part, though, this “degeneration” does not show any symptoms or affect a worker’s ability to do their job.

For the first 100 years of its existence, the WSIB never reduced a worker’s compensation benefits for a pre-existing condition unless that condition had interfered with a worker’s ability to do their job in the past. Take, for example, an older construction worker who has never had any back problems, and who gets injured in an accident at work. Because they have always done heavy work, an MRI will likely show some form of degeneration in their spine. Until recently, the WSIB would simply have compensated the worker for the new problems that arose once they got hurt.

All of that changed in 2010 when the WSIB hired a former banker, David Marshall, to run the Board. Marshall openly declared his belief that the WSIB had an “expenditure problem,” and set about successfully reducing the amount of money the compensation board spends on workers’ benefits. He hired the private consultants firm KPMG to make recommendations to that end. Among the many private-insurance company principles suggested by KPMG in their report, and adopted wholesale by the WSIB, was a policy that would reduce compensation benefits based on pre-existing conditions, regardless of whether or not the conditions had showed any symptoms in the past. Under these new policies, something as simple as an aging spine would be considered a pre-existing condition even if it worked quite well before the injury. As a result, countless claims saw wage-loss benefits and lump sum settlements for loss of enjoyment of life (called “Non Economic Loss” or NEL awards) reduced.

Injured workers, advocates, and legal experts immediately began suggesting that these policies and practices were unfair and illegal, and began waging a battle against the practice.

What led to the change?

The catalyst for this change in policy was a class action lawsuit by Toronto lawyer Richard Fink. Behind Mr. Fink’s legal work, though, was a community response that battled the WSIB on every front. The Ontario Network of Injured Workers’ Groups’ (ONIWG) identified “no cuts based on pre-existing conditions” as a key demand in its “Workers’ Comp Is A Right” campaign, whose lobbying efforts have resulted in the issue being raised countless times in the Ontario Legislature. IAVGO Community Legal clinic released a report documenting hundreds of cases where the Workplace Safety and Insurance Appeal Tribunal (WSIAT) rejected and overturned this type of benefits reductions. The Ontario Federation of Labour denounced the practice at its annual convention, and supported the fight-back campaign. Last but not least, the Toronto Star exposed the link between this illegal policy and a discredited American doctor linked to the insurance industry. It was a community response that resulted in one of the first substantial positive policy changes at the WSIB in years, and should be celebrated. But does it really solve the problem that injured workers and their allies have identified?

The bureaucratic fine print

Much of the initial response from media and injured worker allies has been positive, which has encouraged a belief that the issue has been resolved once and for all. A closer look at the fine print reveals a more complicated reality. Instead of changing the policy, the WSIB has instead issued a “Policy Clarification Memo,” that is technically not even binding on decision makers. The opaquely worded “clarification” is three pages long, appears to apply differently to decisions made before or after November 2014, is largely silent on psychological conditions, and narrowly only affects NEL settlement awards.

Some good will come from the changes, no doubt. The WSIB is in fact reviewing hundreds of cases and pro-actively increasing many workers’ NEL awards. But only those whose lump sum settlements were awarded and then reduced are being reconsidered. Those who were simply disqualified from benefits due to an asymptomatic pre-existing condition will not have their cases reviewed, and will see no extra money. Finally, the WSIB has been clear that the significantly more substantial category of wage-loss benefits (called “Loss of Earnings” benefits) will not be affected. Because Non Economic Loss awards are generally quite small – sometimes in the hundreds of dollars – this will have a negligible impact on the poverty faced by so many injured workers.

What’s next?

Ron Ellis, a leading legal scholar in the field of workers’ compensation, has pointed out that the WSIB operates with a fundamental conflict of interest: They are both the judge and the payer of injured worker benefits. In other words, the structure itself incentivizes the WSIB to exercise financial restraint, and to do so proudly. While this doesn’t mean that the Board cannot operate a fair compensation system, it does suggest that the injured worker community needs to constantly remind them that their purpose is to provide benefits, not to manage money.

Just as the injured worker community has done since pre-existing conditions policies began to work their way into the WSIB’s benefit structure, we need to closely monitor the implementation of this policy. We need to ensure that the remaining policies on pre-existing condition are changed to reflect the law. A pre-existing condition that was not symptomatic and did not affect pre-injury work should never be used to undermine full compensation. This principle – which the WSIB has tacitly acknowledged by clarifying their policy – must apply to every aspect of compensation for injured workers, not only the narrow NEL award for pain and suffering. ONIWG and its allies will continue to fight for this, and the other issues at the centre of its “Workers’ Comp Is A Right” campaign.

Of particular importance is the fight to eliminate “deeming,” the WSIB’s practice of pretending unemployed injured workers have jobs. As long as this practice continues, and the WSIB is allowed to simply declare an injured worker able to earn phantom wages, the poverty of injured workers will continue.

While the injured workers’ movement recognizes the positive aspects of the WSIB’s change to its pre-existing conditions policy, it is but one small part of the larger struggle for a just compensation system. When workers gave up their right to sue employers over 100 years ago, they did so in exchange for a system that would provide fair compensation as long as an injury lasts. Until that exists in every case, we will continue to insist that “Workers’ Comp Is A Right.”