Ontario's workers' compensation system is under attack

To save money, the fairness at the core of Ontario's workers' compensation system is being undermined. 

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If WSIB President David Marshall succeeds, he will save the workers' compensation board money, but at what cost? asks Oduardo Di Santo.

By: Odoardo Di Santo Published on Fri Jun 27 2014

I had the great privilege to serve as chair of what is now called the Workplace Safety and Insurance Board (WSIB) in the early 1990s. As an immigrant from Italy and then a member of Ontario’s Provincial Parliament, I had observed firsthand the difficult circumstances of injured workers and the important role of the board in helping them get back on their feet.

As chair, I did my best to strengthen the WSIB’s support to those workers, especially around rehabilitation and return to work. So I have a personal stake in the changes now underway at the board — changes that are undermining decades of progress and that all Ontarians ought to oppose.

These changes were well illustrated by two recent articles in the Star. One showed that many of the criteria used by WSIB to justify surveillance of inured workers unfairly target those who are new immigrants or whose injuries seem to be taking too much time to heal.

Another recounted two cases of injured workers who were denied compensation because the WSIB maintained that x-rays found evidence of degenerative disc disease (a “pre-existing condition”) in their spines. Never mind that both of these workers had been able to work for many years before their workplace injuries.

These stories represent a historic and unfortunate departure from established WSIB practice.

The board has no policy or legal authority allowing it to deny benefits because of pre-existing conditions. In fact, current policy and many years of appeal decisions make clear that the board should pay benefits to workers who were able to work before their injury and unable to work afterwards.

Recently, the WSIB proposed a policy to overturn the long-standing approach, which, if approved, would undermine the basic principle upon which the system was based.

Ontario’s workers’ compensation system has always required balance between the contribution of the employers and the benefits paid to the injured workers. It was built with fairness at its core.

And yet, since the 1970s, successive governments have kept employers’ contributions artificially low, allowing an “unfunded liability” to develop. The WSIB doesn’t have the money to fund likely future benefit claims.

In the early 1990s, the board concluded it needed to raise employers’ contribution to 3 per cent of payroll to eliminate the unfunded liability by 2014. Unfortunately, when Mike Harris took power, his government lowered the contribution to 2 per cent. And though it also reduced payouts to injured workers, the unfunded liability skyrocketed.

To deal with this problem, the McGuinty government appointed as WSIB president David Marshall, an accountant, who was granted a stipend of $400,000 a year plus a performance bonus of 20 per cent.

In 2010, Marshall told the legislature he had to cut costs. He said he would develop a plan that would have “some tough, tough proposals in it. I mean you can’t recover this amount of money without … pain somewhere in the system … I don’t get any bonus unless I can meet this target.” Not one word about the revenue side.

Instead, under Marshall’s watch, denied claims increased by 50 per cent. Benefits to injured workers have been reduced by $631 million; the rehabilitation program has been decimated; long-term wage loss benefits have been reduced by 28 per cent; hundreds of WSIB employees have been laid off; and injured workers’ pensions have been reduced by 31.3 per cent.

This is not only having a devastating impact on injured workers; it is also downloading costs onto our social assistance and health care systems. And the workers’ compensation system has been brought to a stall, with thousands and thousands of appeals and lengthy and unacceptable delays in dealing with them.

That’s not all. In 2011, Marshall was granted the unprecedented authority to change autocratically most WSIB policies without board approval.

The Star has documented how Marshall is exercising this power. If he is allowed to implement the infamous policy on “pre-existing conditions,” this will allow the WSIB to deny benefits because of, say, age.

In fact, the board has already begun illegally implementing the policy. The WSIB routinely writes to workers, warning them: “please be aware that … the WSIB may determine that the current condition is more likely related to the natural aging process or to the progression of an underlying pre-existing condition.” So the worker is zapped despite the long-standing policy that compensation will be granted if the injury is a significant factor in causing the worker’s disability.

Injured workers, the medical profession, community groups, and many others have decried the absurdity and unfairness of what the WSIB is doing. So far, to no avail. If Marshall succeeds, he will surely reduce the unfunded liability, but at what cost?

The destruction of our workers’ compensation system will create bitterness and polarize workers and employers. After a century of progress, we will once again have thousands of injured workers desperate and deprived of justice and the means to support their families. Rather than going down this harmful path, we ought to work together instead on the prevention of workplace injuries and diseases, and the re-employment of injured workers.

Odoardo Di Santo is a former Ontario MPP and chair of the workers’ compensation board.

source:  http://www.thestar.com/opinion/commentary/2014/06/27/ontarios_workers_compensation_system_is_under_attack.html