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Volume 9, No. 2 - March/Mars 2005
 

Terrorism and Workers’ Compensation

The 9/11 Terrorist Attack and the Terrorism Risk Insurance Act

Dan Revington*

The terrorist attack on the World Trade Center (“WTC”) on September 11, 2001 was the largest workers’ compensation accident in history.  The attack has raised a host of unprecedented issues in workers’ compensation.  Indeed, some have predicted that one consequence of the WTC attack will be that workers’ compensation insurance will no longer be provided by private insurers in some U.S. states.

The events of September 11, 2001 are familiar to everyone.  On the morning of September 11, four aircraft were hi-jacked by terrorists. Two aircraft were deliberately flown into the two World Trade Center towers in New York.  Over 50,000 people were at work at the WTC.  By 10:30 a.m., both towers had collapsed.  Nearly 3,000 people were killed, including 343 firefighters, 60 police officers, and 157 people aboard the aircraft.¹  The terrorists flew a third jet into the Pentagon. The fourth aircraft crashed in rural Pennsylvania.

Characterizing a planned terrorist attack as an “accidental” injury “arising out of and in the course of employment” may seem surprising.²  However, no employer or insurer challenged entitlement to compensation on the grounds that injuries from the WTC attack did not arise out of employment, or were not accidental. It was generally accepted that workers’ compensation coverage cannot exclude terrorist attacks.³

In fact, most of those killed and injured on September 11th were considered to have been in the course of employment, and so entitled to workers’ compensation benefits.  The New York State Workers’ Compensation Board received over 2,200 death claims as a result of the attacks on the WTC.  Firefighters and New York City police officers, who would most obviously have been in the course of their employment, are not even included in this total, as they were covered under a separate compensation scheme.⁴ 

The immediate impact of the events of September 11 is only part of the story.  The United States Government Accountability Office noted in its report to Congress in 2004 that a wide variety of mental and physical health effects from the WTC attack have been reported.  Mental health effects related to the WTC attack include depression and post-traumatic stress disorder.  Physical disorders include a number of respiratory conditions, including a new syndrome identified as “WTC cough”.  Workers involved in the rescue and clean up have developed illnesses from inhaling the toxic mix of dust, smoke and chemicals released by the collapse of the WTC.  Hundreds of firefighters have had to end their careers due to respiratory illness resulting from the WTC rescue operations.⁵  By mid-2004, the New York Workers’ Compensation Board had received over 10,000 claims related to the September 11 attack and recovery.⁶ 

Workers’ Compensation Section members reading this will have recognized that the 9/11 Attack raises many complex issues unique to workers’ compensation law. Some of these issues will lend themselves to analysis on another occasion. At the moment, one issue which is raising considerable controversy in the United States is the willingness and ability of workers’ compensation insurers to provide insurance coverage for losses due to terrorism. This debate has centred around the expiry of the Terrorism Risk Insurance Act.

Terrorism Risk Insurance Act

Workers’ compensation insurance in most U.S. states is obtained differently than in Ontario.  In most states, employers may obtain workers’ compensation coverage through private insurers.

The private workers’ compensation insurers in the U.S. sustained unprecedented and unanticipated losses from the 9/11 terrorist attacks. Total workers’ compensation losses are estimated to have been up to 4 billion dollars.⁷  Although no insurance company became insolvent because of workers’ compensation losses, workers’ compensation primary insurers and reinsurers – as well as commercial property insurers – were greatly concerned about the potential losses from further terrorist attacks.⁸  The uncertainty in the U.S. insurance industry about coverage for terrorist attacks created a crisis that threatened to disrupt the economy. The problem was particularly acute for areas which were high-risk terrorist targets.

In response to this insurance crisis, on November 26, 2002 the Terrorism Risk Insurance Act (“TRIA”) was signed into law by President Bush. The TRIA requires U.S. property and casualty insurers to offer insurance for losses resulting from acts of foreign terrorism. In return, insurers, including workers’ compensation insurers, were “backstopped” by TRIA. That is, the U.S. government assumed responsibility for up to 90% of losses to insurers from foreign terrorist attacks.⁹ 

The Death of TRIA?

TRIA will expire at midnight on December 31, 2005. TRIA was intended as a temporary measure to allow insurers to develop solutions to manage the risk of terrorism. However, the insurance industry has warned that it has not been able to come up with a private solution to insure terrorism risks. This is particularly true for workers’ compensation insurance. 

Unlike other types of insurance, workers’ compensation insurers in the U.S. cannot limit or exclude losses for terrorism, even without TRIA.  Further, the ability of insurers to increase the premiums charged to employers is restricted, as premiums are regulated by state workers’ compensation insurance rating authorities.

What are the potential costs to insurers from a terrorist attack? The problem is, no one knows.  According to the Workers' Compensation Terrorism Reinsurance Pool Feasibility Study conducted by the Tillinghast and Reinsurance businesses of Towers Perrin, the U.S. private insurance industry does not have enough capital to withstand potential losses on its own should catastrophic terrorist strikes occur.  Insurance companies have projected terrorist attack scenarios that could generate worker’s compensation losses exceeding 90 billion dollars, far exceeding the capital backing the workers’ compensation line of business. In other words, workers’ compensation insurers could not pay for the claims in a catastrophic terrorist attack.  A further terrorist attack on the scale of the WTC could result in private insurer insolvency. Insurance companies have warned of “significant marketplace disruption” should there be major losses resulting from future terrorist attacks without the continuation of TRIA. 

On the other hand, some consumer lobby groups have argued that TRIA, which is essentially a taxpayer guarantee to subsidize the insurance industry, should not be renewed. The Consumer Federation of America argues that there is relatively little risk of terrorist attacks in most areas of the U.S., and consequently the insurance industry should be able to provide affordable terrorism insurance in most instances.  The CFA points to large insurer profits and billions of dollars in retained earnings as proof of the health of the insurance industry.¹⁰

Despite intense lobbying by the insurance industry, there has not been a commitment by Congress to extend TRIA beyond the end of 2005.  However, workers’ compensation policies have to be written now, to cover time periods beyond the end of 2005, and so beyond the possible end of TRIA.

Given that workers’ compensation insurers have to cover losses due to terrorism, insurers have three options if TRIA is not renewed. First, they can continue to write workers’ compensation policies as before TRIA. The insurance industry states this is unlikely to occur. Second, insurers may attempt to limit their exposure, and require substantial increased premiums as a condition for the continuation of insurance coverage. Workers’ compensation policies which are being written in New York State now are being made conditional on the renewal of TRIA. Third, workers’ compensation insurers may simply stop writing policies.¹¹ 

As the TRIA deadline for expiry gets closer, the debate about its renewal will become more intense.  The U.S. Treasury is scheduled to issue a report on TRIA before the end of June.  The status of TRIA will likely remain unresolved well into 2005.

* Dan Revington is General Counsel of the Workplace Safety & Insurance Appeals Tribunal. The opinions expressed in this article are those of the author and do not represent the views of the Workplace Safety & Insurance Appeals Tribunal.

Dan would like to express his appreciation to Cheryl Wood, Deputy General Counsel of the New York Workers’ Compensation Board; Martin Heagen, Vice-President of the New York Compensation Insurance Rating Board; and Terrence D. Delehanty, General Counsel, National Council on Compensation Insurance, for their assistance in providing background information for this article.

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¹  The 9/11 Commission Report, National Commission on Terrorist Attacks, July 2004, p. 311. The total of 60 police officers include both NYPD and Port Authority police officers
²  New York Workers’ Compensation Act s. 7 and 10. Under the NYWC Act, “injury” means only accidental injuries arising out of and in the course of employment. “Compensation” is payable for disability or death from injury arising out of and in the course of employment, without regard to fault as a cause of the injury.
³  Workers' Compensation Terrorism Reinsurance Pool Feasibility Study’ Tillinghast and Reinsurance Business of Towers Perrin, April 2004
⁴  Richard Bell Catastrophe Preparedness: The New York State Workers’ Compensation Board Experience, in Managing Catastrophic Events in Workers’ Compensation: Lessons from 9/11; Workers’ Compensation Research Institute, ed. Ramona P. Tanabe, March 2003
⁵  United States Government Accountability Office: Testimony before the Subcommittee on National Security, Emerging Threats and International Security, Committee on Government Reform, House of Representatives September 11: Health Effects in the Aftermath of the World Trade Center Attack, Statement of Janet Heinrich, September 8, 2004, p. 3
⁶  United States Government Accountability Office: Testimony before the Subcommittee on National Security, Emerging Threats and International Security, Committee on Government Reform, House of Representatives September 11, Federal Assistance for New York Workers’ Compensation Costs, Statement of Robert E. Robertson, September 8, 2004, p. 3
⁷  Workers' Compensation Terrorism Reinsurance Pool Feasibility Study, supra
⁸  Reinsurers insure primary insurers. Primary insurers may choose to reinsure to limit their risk in any particular area. The threat of the unavailability of reinsurance was one of the most significant factors leading to TRIA. Under TRIA the U.S. government is, in effect, a reinsurer.
⁹  For a concise practical summary of the impact of the major provisions of TRIA, see The Economic Effects of Federal Participation in Terrorism Risk by R. Glenn Hubbard, Analysis Group, September 14, 2004
¹⁰  The Committee on Banking Housing and Urban Affairs of the United States Senate, Testimony of J. Robert Hunter, May 18, 2004
¹¹  Hubbard, supra, p. 67-68

Rob Boswell*

With the release of the Supreme Court of Canada’s judgment in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504 in October 2003, discussion in the Ontario workers’ compensation legal community began about the application of that judgment to the Ontario Workplace Safety and Insurance Act, 1997 (the “Act”).

The most obvious point of discussion surrounded the impact of the decision on subsections 13(4) and (5) of the Act.  If challenged, would these subsections be found to be contrary to section 15 of the Charter?   The subsections read as follows:

13. (4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.  However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

In ever-so-small groups, advocates debated the constitutionality of the limits to compensation for workers suffering from “mental stress” and compared these limits to those of the limits to compensation for chronic pain in the Nova Scotia regulations and WCB policies.  While the application of Martin to Ontario was debatable, the question began to fester in the minds of those who wondered what steps would be taken to challenge the section.  Would it spring forward as a challenge of an individual injured worker, backed by the resources of a confident labour community?  Or would it wind its way through the lobbying efforts of a vast labour group seeking to convince a new provincial government that something had to be done to change the multitude of evils set out in the Act by the previous government?

While it appears that the latter of these two approaches has been chosen by the labour community at large, this article examines the approach of the Workplace Safety and Insurance Appeals Tribunal in recent decisions.  It is my assessment that the issue of the constitutionality of the section may not be as significant as thought.  The WSIAT’s consistent and broad interpretation of Workplace Safety and Insurance Board policy, in my view, has reduced the importance of the limits to entitlement set out in s. 13(4).

The genesis of the story can be found in the years that predate the enactment of the WSIA.  In his helpful paper, Mental Stress:  Is it Compensable?, for this Section’s May 2000 CLE program, Chris Meaney of Canada Post set out the history of the debate between the Appeals Tribunal and the Board.   As Mr. Meaney noted, the approach of the Appeals Tribunal for claims prior to 1998 was to consider mental stress as a claim for a “disablement”, subject to essentially the same factual review as any other injury or illness.  The key question for the Tribunal, simplified, was whether the employment was a significant contributing factor to the worker’s injury or illness.  If yes, the legislation provided a means to compensate that worker.  The contrary approach of the Board, though not established in any “formal” written policy, was to allow claims for mental stress only in circumstances where the illness or injury resulted from a “sudden, shocking or life threatening” traumatic event arising out of and in the course of employment.

These contrary and sometimes completely incompatible approaches to interpretation of the Act continued until, seemingly, they were resolved with the introduction of section 13(4).  A brief period of confusion arose early after the introduction of the WSIA as to the application of new Board “policy” to pre-1998 injuries.  A now well documented use of section 126 by Vice Chair Nick McCombie in Tribunal decisions Nos. 809/98, 98I and 98I2 resulted in the acknowledgement of the then Board Chair that the Board’s pre-1998 practice was not established through a formal enough process to be a policy of the Board binding on the Tribunal pursuant to s. 126.

It is not in question; however, that current Board policy relating to entitlement to mental stress is formal enough.  WSIB Operational Policy Document 15-03-03 “Traumatic Mental Stress” sets out the limits on entitlement and interprets ss. 13(4) and (5) of the Act. 

Interestingly, the policy purports to apply to ALL claims where the most recent traumatic event occurred on or after January 1, 1989, some nine years before the enactment of the WSIA. Several Tribunal decisions have questioned the retroactive application of this policy though none have squarely challenged the application of the policy to pre-1998 cases.  Most notable is the recent Decision No. 799/04 of Vice Chair J. G. Bigras, dated 8 November 2004. 

Vice Chair Bigras appears to have accepted that the Board does not have jurisdiction to adopt retroactive policy.  He cited Decision No. 2828/01 (the decision number is noted as 2828/02 in the decision in error) as support for this conclusion.  This earlier decision did not deal with the retroactive application of the traumatic mental stress policy but of another policy.  Vice Chair Bigras noted that the Board wrote to the Tribunal Chair on February 18, 2004 to state that it did not have a mental stress policy prior to January 1, 1998.  Unfortunately, none of the contents of the letter are disclosed in the decision.  As a result, it is difficult to know whether the letter had any direct bearing on the question of retroactivity.  Certainly, as the Board has not changed the dates of application set out in the policy, it seems unlikely that it intended the Tribunal to disregard those dates by virtue of a letter to the Tribunal Chair.

Apparently accepting that the letter meant that the policy does not apply to pre-1998 claims, Vice Chair Bigras proceeded to analyse the case as though there was no requirement that there be a “traumatic event”.  This analysis and approach is odd, in my view, given his assessment of the facts and the existence of an alternative analysis that has been applied by other Vice Chairs and Panels, including one chaired by Vice Chair Bigras (which is discussed below).  That is, why not question the application of the policy but leave the analysis to another day and allow the claim on the merits of a claim for traumatic mental stress?

Decision No. 633/01¹ drew a distinction between organic conditions related to workplace stress and non-organic conditions.  The conclusion to be drawn in this decision is that the restriction on entitlement for “mental stress” is limited to non-organic psychological illness.  The worker suffered from high blood pressure and chest pain that he argued was related to ongoing workplace harassment.  While the Panel denied the worker’s appeal, the approach remains open.  The limits in section 13 and the policy of the WSIB can be circumvented if a claim is made not for psychological illness but for organic illness.

A similar analysis was used in Decision No. 708/02.²  In that case the worker claimed that he suffered a heart attack due to severe workplace stress.  The argument raised was ultimately rejected on the merits of the case, but the avenue to argue the entitlement for benefits for illness due to workplace stress is clear where the nature of the illness is an organic illness and not a mental illness.  In this particular case, the strength of the worker’s argument was based on facts suggesting chronic rather than acute stress and the medical evidence simply did not draw a sufficiently strong connection between such stress and the worker’s heart attack.

What then, will be the response of the Tribunal in a case involving a mix of both mental and physical illness?  In cases where the organic condition is high blood pressure or a heart attack, there may be an identifiable link between workplace stressors and the progress of the disease.  But what about physical manifestations of chronic pain that have as part of their origin workplace stressors?  Must there be a separate physical injury before entitlement will be granted or will the Tribunal remark, as did Vice Chair Keil in Decision No. 708/02 that “the legislation specifically excludes only ‘benefits for mental stress’” and not a “physical condition ….claimed to have been precipitated by a series of stressful events”?

The task for the advocate (and perhaps the physician as well) is to characterize the disabling features of any illness as “physical”, whether there is a corresponding psychological impairment or not.  Are there not physical manifestations of disability in many psychological illnesses?

Decision No. 2431/01³  involved a pre-1998 claim.  The worker sought benefits for a psychotraumatic disability, rather than “workplace mental stress”.  The worker had a permanent low back injury recognized as compensable by the WSIB.  The Vice Chair accepted the worker’s evidence that she was subjected to a course of harassment during the course of her return to work and accommodation in the workplace due to her compensable disability.  She concluded that this harassment resulted in a physical impairment.  While the decision involves a claim that pre-dates 1998, the use of the psychotraumatic disability policy remains very important.  The cause of the psychological impairment is not said to be the worker’s reaction to her physical disability.  Indeed, the entitlement criteria set out in the psychotraumatic disability policy is not reviewed in detail.  The Vice Chair concludes that the worker’s condition was “an indirect result of her physical injury” and related to her “extended disablement” following her work injury.  The criteria set out in that policy, however, is considerably more stringent.  The analysis creates another avenue to avoid the application of the mental stress policy.  That is, if the psychological condition arises as part of the work process following a physical injury, a worker may use this same analysis to argue for psychotraumatic disability rather than traumatic mental stress.

The question remains, in that case, however, whether the Tribunal could ignore the application of section 13 (and the related policy) to a clear case of “mental” stress – even where there is a link between that mental stress and an underlying organic disability.  If there is no traumatic event that causes the mental stress, can the analysis taken by the Vice Chair in this case still be used to grant entitlement for the worker?  If this case is an example of how the psychotraumatic disability policy might be applied by the Tribunal, is there a conflict between the policy and the legislation?  If the answer is no, then it demonstrates an avenue for worker advocates to argue for entitlement short of raising constitutional arguments or seeking to remove section 13 by political means.

Decision No. 669/02 and Decision No. 2056/03 take a similar broad approach to interpretation of the WSIB’s policy.  In Decision No. 669/02,⁴  the Panel chaired by Vice Chair Bigras took a different approach than taken in Decision No. 799/04.  In this case, while questioning the retroactive application of the Board’s traumatic mental stress policy to a pre-1998 case, the Panel proceeded to conclude that the evidence supported a finding of entitlement even under that policy.  The case turned on allegations of harassment in the workplace.   The Panel found sufficient evidence that the worker, a psychiatric nurse, had been subjected to harassment from coworkers and supervisors when she replaced another very popular nurse through a collective agreement bumping process.  The harassment, though considered serious by the Panel, did not involve physical violence or threats of physical violence.

The Panel interpreted the use of "includes" in the definition of harassment to indicate that the types of harassment that might fall within the policy were not exhaustively listed within the policy.  The interpretation of “includes” in this case, in my view, is not consistent with the meaning of the policy.  The policy lists a number of “events” that are considered by the Board to be “sudden and traumatic”.  Among the list is:

• "being the object of harassment that includes physical violence or threats of physical violence", and,
• "being the object of harassment that includes being placed in a life threatening or potentially life threatening situation".

With respect to the Panel in Decision No. 699/02, the Policy was not drafted with an inclusive list of events that amount to harassment, but rather as a description of the two types of harassment that meet the test of “sudden and traumatic” events.  In each of these two cases, the more appropriate reading of the policy, in my view, is that the “harassment” must include physical violence or threats of physical violence, or it must include the victim being placed in a life threatening or potentially life threatening situation”.  For the Panel’s analysis to be more persuasive, it is my view that the policy ought to have been drafted to include harassment as an event and then proceed to define harassment as including different types of events that, as a matter of interpretation, should be seen as non-exhaustive.  In this policy, however, the Board specifically lists two different types of harassment, one involving violence or threats of violence and the other involving life threatening or potentially life threatening situations.

A slightly more palatable interpretation of the policy appears in Decision No. 2056/03.⁵  In this decision, the Panel also concludes the use of the word “includes” following harassment suggests that there are other types of harassment that meet the criteria of being a sudden and unexpected traumatic event.  The Panel concludes that “overzealous scrutiny of supervisors or vexatious pursuits of co-workers” might satisfy that test.  At least in this brief additional analysis, it can be seen that the Panel has decided that other forms of harassment might meet the primary test of “sudden and unexpected traumatic event”.

In my view, a preferable interpretation in these cases would not have focussed on the use of the word “includes” after “harassment” in each of the two examples of harassment described above.  Rather, the focus ought to have been on the word “include” at the beginning of the list of all of the items that are considered by the Policy to be “sudden and unexpected traumatic events”.  A consistent interpretation accepts that “include” means the list is not exhaustive.  However, the list is descriptive of the type of event that meets the threshold.  The events listed all involve severe trauma such as witnessing fatalities, being the subject of violence, threats of violence, and being the object of a death threat.  Harassment, while obviously a significant workplace issue, takes many forms.  Not all forms of harassment are consistent with the types of events listed in the Board’s policy.  In my opinion, the chronic harassment described in these two decisions of the Tribunal does not fit clearly within that list.

These creative interpretations, however, demonstrate the avenues available to an advocate to argue why the policy has been met and, as a result, why the legislation is no bar against entitlement.  The list of “traumatic events” is not exhaustive.  It is up to the advocate to convince the adjudicator just how any given event or events is a “sudden and unexpected traumatic” event.

In effect, simple but carefully constructed advocacy on a case by case basis may well defeat the need to challenge the constitutionality of the legislation.

It is particularly notable that in several of the decisions described in this article, the employer chose not to participate.  Indeed, in more than one of these cases, the appeals were heard after the release of the decision of the SCC in Martin.  It appears that the importance of compensation for mental stress, and presumably the potential unconstitutionality of section 13 of the Act, is not high on the list of all employers.

* Rob Boswell is a partner of Craig Boswell McDermot.  His practice is dedicated primarily to advising clients on workplace safety and insurance matters.  He is a member of the Section Executive.

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¹ Dated 18 February 2004.  Vice Chair J.P. Moore, side members W.D. Jago and R.J. Lebert.
² Dated 31 January 2003.  Vice Chair M.F. Keil sitting alone.
³ Dated 5 August 2003.  Vice Chair S. Martel sitting alone.  The employer did not participate in the hearing.
⁴ Decision dated 27 March 2003.  Vice Chair J.G. Bigras, side members J. Seguin and D. Besner.  The employer did not participate in the appeal.
⁵ Dated 12 March 2004.  Vice Chair Rob Nairn, side members Jim Robb and David Timms.  The employer did not participate in the appeal.
 

Alec Farquhar*

On November 25, 2004, Rob Boswell chaired a lively program on the role of physicians in workplace safety and insurance.  The distinguished panel consisted of:  

• Dr. Hamilton Hall, Orthopaedic Surgeon, and Medical Director of CBI Health
• Mike Affleck, Kinesiologist, and Director of Employer Services for CBI Health
• Dr. Noel Kerin, Occupational Health Physician for the Occupational Health Clinics for Ontario Workers Inc.
• Dr. Roland Wong, Occupational Health Physician for the Occupational Health Clinics for Ontario Workers Inc.

Rob framed the discussion around a series of key questions.

Where do you see the physician fitting into the workers’ compensation system?

Do you think that your practice should be restricted strictly to the care of the patients?

Dr. Wong responded that first you need to define “physician”.  Some work for OHCOW, some in private practice as family physicians, some as specialists, some for employers.  You must start, however, with the origin of the ethical responsibility of physicians.  There is the Hippocratic Oath.  One of the things in that oath is that I will use my ability to help keep my patients from harm and injustice.  In today’s times, we are similarly required to consider the wellbeing of the patient.  So, yes, we are in that sense medical advocates.

Among occupational physicians, the highest priority is for the health and safety of the individual in the workplace.

So basically this is our calling, from 2,500 years ago.  We have a duty to be medical advocates.  But not legal advocates.

Rob asked Dr. Hall, as a physician who has served employers, to comment on the same issue.  Dr. Hall stated that a doctor should not be a patient’s advocate.  The doctor’s role is to be a doctor.  The doctor must look after the medical interests of the patient.  He has to make medical decisions and stay in the arena of medicine.  Advocacy from a purely medical perspective is fine.  When he steps beyond that line, he is beginning to become judgemental.  This can get a doctor in trouble.  Dr. Hall tends to favour the worker’s independence over everything else.  Let the injured party decide what is best for him or herself.  He sticks to the medical limitations which affect their function.  Doctors are not expert in industrial relations.

Rob asked whether patients want their doctor to be an advocate.

Dr. Hall responded that many do want this. They want their doctor to take over their lives.  He worries about doctors who do that.  One doctor said “it is unfair to ask a worker to work in pain”.  This is inappropriate.

Dr. Kerin took a different tact.  In his view, under the constitution of Canada, we have a Charter of Rights.  With that came several areas which guide physicians in the workplace.  Before that we had a lot of grey areas.  The duty to accommodate inside the workplace is now clear.  We have the employee, the employer and the injured person.  Doctors perform an advisory function in defining medical impairment.  We are not advocates.

What you need to do is to look at a workplace like a crime scene.  Dr. Kerin looks for toxins, agents of injury, outcomes.  He asks himself “In my opinion, did this agent or agents cause this or that outcome”.  Or he defines impairment and the level and nature of it.  He would hope that adjudicators would accept his opinion because it is scientifically supported.

Rob moved on to ask about the role of the kinesiologist?

Mike Affleck responded that this is the scientific study of human movement.  Kinesiologists are often on the front line in gathering information.  They are in the workplace collecting data, often from an ergonomic perspective.  They are looking for information to help determine whether a worker can return to work gradually, and if there is a need for accommodation.

Rob asked whether there is a need to identify unsafe situations.

Affleck agreed.  For example, recently OHCOW was called by an employer about a situation.  The worker was 6’6” tall and thus especially susceptible.  So there was a hazard for the worker, while perhaps there would not have been for a shorter person.

Dr. Wong returned to the issue of “advocacy” by physicians.  The word “advocate” should not be raising alarms.  There are several meanings.  “To speak, plead or argue in favour of”.  This need not be in the legal sense.  The family physician role is instructive.  It applies to many people out there.  The physician must look at the psychological as well as physical aspect.  At the patient’s total health, which includes his financial situation.  As a medical advocate, he wants to make sure that s/he has the best chance to succeed in the world.  If there is a chance s/he is disabled, the physician should help with the CPP application; etc.  This will help support the worker.  Advocate is a word which should find favour, of which we should be proud.  If I’m a specialist, I must give clear information to the family physician.  I must be aware of what kind of information is most useful.  I must be aware of the context.

Rob asked whether Dr. Wong felt that he had an obligation to the patient around his/her financial situation.

Dr. Wong responded in the affirmative.  Although he was not a financial advisor, he knows that having money in the pocket helps with a patient’s mental wellbeing.  He does not take them through the social assistance system, but he can guide them in the right direction. 

Rob asked Dr. Hall whether he believed he had a role in advocating a position which might assist the client or patient.

Dr. Hall noted several issues involved here.  Advocacy to avoid medical injury is not a problem.  However, some doctors overstep that line.  Impairment is a medical definition.  We don’t judge disability with the same skill.  I can put my thoughts forward but I am not an expert.  I would turn to someone like Affleck for information on the workplace.  Doctors should stay with diagnosing impairment.  If I’m advocating for a compensation payment, I’m over-stepping it.  One of the biggest problems which we face is our eagerness to provide patients with medical restrictions.  It establishes a scary line for the patient not to cross.  E.g., you can’t lift over 10 kg.  The patient may be terrified about the consequences.  Restrictions need to be applied only where there is a medical impairment.  Restrictions negatively affect outcomes.  If you have a drop foot, you can’t drive a big transport truck.  But if his back hurts after six hours in the cab, that’s not a restriction.  We do not need to be advocates in the sense described.

A practitioner from the audience asked whether the problem is often the psycho-social factors.

Dr. Hall agreed.  He spends a lot of time talking to people about the impact of their spine problems on their lives.  He’s not afraid of the psycho-social side.  But you have to be careful in these areas.  He does not consider himself an expert in this area.

Rob asked who does have that expertise.

Dr. Hall responded that this expertise is found in a number of people.  A little bit from all of us.  The doctor is just one voice.

Another practitioner asked whether a return to work can be just as therapeutic as money can. 

Dr. Wong agreed.  Definitely, the family physician has a big role in return to work, through the functional abilities form.  Physicians are becoming gatekeepers of society.  That becomes worrisome too. 

A practitioner then asked about the situation where a physician has set out in a report that the patient has a clear limitation of function, and the Board rejects that opinion outright.  What role might the physician have to advocate for your patient in the sense of saying “this employee cannot do the work which is being recommended”?

Mike Affleck responded that one of the first things you have to establish is what the job requirements actually are.  Sometimes, there are restrictions which really do not keep you from doing your job.  As a kinesiologist, he must rely on the opinion of the doctors on whether there is a restriction.  Then he must ask whether the worker is therefore not able to do that job.  Some jobs can be modified. 

Rob then asked Dr. Kerin what he would do when his well considered opinion is ignored. 

Dr. Kerin emphasized that doctors must stay within the Charter of Rights.  For example, take the case of a drop foot.  There may be solutions which allow the person to drive.  You must test that impairment against the criteria of the person’s capabilities.  Maybe find a way to accommodate the truck driver.  You look at dignity, altruism.  A lot of what we do is in the dignity area.  It has nothing to do with disabilities. 

Dr. Hall stated that of course when his opinion is rejected, he gets angry.  He gets involved and won’t just back off.  He would not want to be on the highway if there is a driver with a floppy foot. 

Dr. Wong commented that Dr. Hall would do exactly what Dr. Wong was saying earlier.  He has become an advocate.  It is OK to be an advocate.  The person shouldn’t be driving a truck.  The person should be doing something else.  This is the physician’s duty to press this issue.

Rob noted that there is sometimes a narrow focus on the way the work has always been performed.  Not on accommodation of the disability.  Why not try to fix the job?  To find ways for the person to do the same thing in another way.

Mike Affleck agreed that sometimes you cannot modify the job but we must look at all the opportunities.

Rob next asked about the duty of confidentiality.  There is new legislation.  Do the doctors feel that this limits their effectiveness in helping the workplace parties?

Dr. Hall stated that it does.  You try to get as much information to the right people as you can, while respecting the patient’s confidentiality.  A lot of this has to do with record keeping and other matters.  It’s easy to violate the privacy legislation without realizing it.  Like so many things, confidentiality can be used in a very negative way.  It can obstruct his ability to help people.  Research has become very difficult as a result. 

Rob asked whether physicians ever feel a lack of disclosure from the employer is a problem.

Dr. Wong stated that most of the confidentiality rules protect the worker’s health information.  But some employers use outside medical services in ways he is not aware of.  He must assume that these people are following ethical standards.  Confidentiality of information is important.  Information is sometimes given under duress.  If a physician doesn’t give the information, the patient may lose their job.  Some employers don’t understand the seriousness of the medical problem – e.g., a complete tear of the rotator cuff.  As a routine, he doesn’t believe that the employer has the right to know everything.  They should be focused on functional limitations. 

Dr. Kerin noted that until the Charter of Rights came along, employer physicians were in a grey area, a potential conflict of interest.  Company physicians worked for the company.  The Supreme Court in the CN case said that the employer had the responsibility to understand the disability. 

Rob stated that, as legal advocates, a lot of medical information is provided to us.  Often, trust has broken down between the worker and employer.  Can a physician try to help build trust between the worker and the employer?

Dr. Kerin responded that in the workplace, there is the employer, the worker/union, and then the physician who is prescribing limitations.  It is a really difficult area. 

Rob asked whether, when the parties’ mutual trust has broken down, do you try to bring them back together?

Affleck replied that they do try to help.  Sometimes each side has their own expert.  You have to try to build trust.  If you are dealing with objective, scientific data, that helps greatly in the decision-making. 

A practitioner asked how the company doctor reconciles the interests of the employer and the patient in various situations.  For example in making accommodations to the workplace. 

Rob added the issue of whether there is a role for the physician to advocate for systemic change to the workplace to deal with some issue of overall health and safety. 

Dr. Kerin replied that there are certain areas a company must comply with – e.g., the approach to air monitoring for a designated substance.  There are various actual or potential conflicts of interest in this field.  You are either a treating physician, or you are an advisor or advocate for management. 

Rob then asked about the situation where a doctor is being asked to prepare a report for a client.  You are being paid by the client.  Do you feel that same sense of conflict?

Dr. Wong noted that we have major systemic problems right now within the workers’ compensation system.  Regional evaluation centres – is there a conflict of interest if you rely on WSIB funding?  REC sometimes does not seem to understand the workplace.  We need ergonomists to help with this, kinesiologists too.  Perhaps we should have a system where both parties mutually select the physician or treating facility.  Conflict of interest is quite rampant throughout this industry and indeed in the broader society.  There is a misconception about how much specialists know.  Sometimes specialists step outside their area of knowledge.  We need to look at conflict of interest.

Rob asked how doctors can divorce themselves from bias if they are being paid by a third party.

Dr. Hall stated that, first of all, he asks himself whether he can defend his opinion in public.  That may be in favour of the patient or the employer.  It doesn’t matter.  However, it might be more difficult for a company doctor.  Your first concern must be for the patient.  That comes first. 

Dr. Kerin agreed that independent medical opinions are a difficult area.  There is always some wiggle room.  However, there are areas where there is advocacy or anti-advocacy – e.g., the 8 week cut off of chronic pain in Nova Scotia was agreed to by some Board physicians.  The Supreme Court of Canada had to deal with this problem and ruled on it.

Rob asked about the doctors’ pet peeves about the way legal advocates deal with physicians.

Dr. Wong responded that there are a lot of paralegals and even some lawyers who ask questions which are almost impossible to answer.  They are not qualified in some cases.  You have to ask me questions which I can answer.  The advocate must know something of the basics of medicine.  There is also the distinction between findings of fact and of law.  For fact, we depend on the published literature.  At the Tribunal there are discussion papers which are used as virtually the final authority on a specific topic.  The papers have not been based on a thorough literature search.  Sometimes there is a problem. 

Dr. Kerin added that people can twist the facts to match their perspective.  What is being done is absolutely unreasonable in some cases.  Never ask what disease the patient has – ask what patient does the disease have?  Disability varies with the person who has the impairment.  This would be helpful.  This would help us look at what people have to offer in terms of “human capital”. 

Mike Affleck suggested that advocates be critical of the information you are receiving.  Ask good questions about the information being brought to you.

Dr. Hall noted that in many cases, the lawyer and doctor are on opposite sides of the situation.  Hall would like to get the worker back to work.  The lawyer is trying to get money for the worker.  It sometimes puts us on opposite sides.  The worker is kept off work when they should be returning.  We should be helping the worker get back to normal life.

A practitioner asked about man made mineral fibres and carcinogenicity.  There is a significant international issue about this.  One party said that it is carcinogenic.  Another side said that it is inert dust.  No problem at all.  Each has MDs and PhDs supporting them.  They are all fighting. 

Rob added that here you have two strongly vocal bodies who are advocating opposite positions.  There are always competing opinions in our cases, not just in situations like that one.  Often both are spoken by well respected experts.  This creates tremendous challenges.

Dr. Kerin stated that the Holmes Foundry case shows that bad situations can be hidden for many years.  Unfortunately, sometimes people can be bought in this field.  There are lies, there are damn lies and there are statistics.

Mike Johnston thanked the speakers for an extremely stimulating and valuable evening.

* Alec Farquhar is the Director of the Office of the Worker Adviser.

The Workplace Safety and Insurance Appeals Tribunal’s Charter Jurisdiction Under Nova Scotia (Workers’ Compensation Board) v. Martin: Workplace Safety and Insurance Appeals Tribunal Decision No.794/97

Ann Somerville*

Nova Scotia (Workers’ Compensation Board) v. Martin¹ (“Martin”) is one of the Supreme Court’s most important decisions in recent years for administrative tribunals, including the Workplace Safety and Insurance Appeals Tribunal, because it clarifies the test for determining whether a tribunal has Charter jurisdiction.  Martin concerned the constitutionality of part of the Nova Scotia Workers’ Compensation Act and regulations that excluded chronic pain syndrome from the benefits usually provided to injured workers, and substituted an abbreviated program of benefits. The Nova Scotia Workers’ Compensation Appeals Tribunal held that it had Charter jurisdiction and declined to apply the challenged provisions on the grounds that they violated the Charter. The Nova Scotia Court of Appeal found that the Appeals Tribunal did not have Charter jurisdiction.

In Martin, the Supreme Court restated its approach to Charter jurisdiction² as follows:

The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter… from the scope of the questions of law to be addressed by the tribunal.  Such an implication should generally arise from the statute itself, rather than from external considerations.

Applying this test, the Supreme Court affirmed that the Nova Scotia Workers’ Compensation Appeals Tribunal had Charter jurisdiction and that the challenged provisions were an unjustifiable violation of s. 15 of the Charter.

Prior to Martin, the Ontario Workplace Safety and Insurance Appeals Tribunal (“the Tribunal”) had considered its Charter jurisdiction in only three cases. Decision No. 534/90R³  tentatively concluded the Tribunal had Charter jurisdiction.  This case did not proceed further and a final decision was not released.  Decision No. 755/88⁴ accepted that the Tribunal had Charter jurisdiction, largely based on the representatives’ submissions, with brief reasons from the Panel.  Decision No. 34/92⁵  held that the Tribunal had jurisdiction to consider whether WSIB policy, as opposed to legislation, violated the Charter.  In both of these decisions, the Charter challenges were unsuccessful.

Martin was considered for the first time by the Tribunal in Decision No.794/97.⁶  In this case the worker was injured at work in 1988 and was granted a 15% pension for his permanent disabilities in 1990.  He was denied a full commutation of his pension on the grounds that he did not meet the Workplace Safety and Insurance Board’s (“WSIB’s”) policy criteria for pensions greater than 10%. The worker argued that this infringed his s. 15 Charter rights.

Since the accident was in 1988, the applicable legislation was the pre-1989 Workers’ Compensation Act.  Because the first hearing in the case was in 1997, the most recent legislation, the Workplace Safety and Insurance Act (“WSIA”), did not apply (see s.112 (4) WSIA). The pre-89 Act has different provisions for commutations of pensions of 10% and less, and for those greater than 10%. Section 45(4) applies when the pension is 10% or less, and requires WSIB to commute the pension unless it would not be to the advantage of the worker. Section 26 applies to pensions greater than 10%, and gives WSIB the discretion to commute pensions of that amount.  WSIB has two distinct policies for pension commutations depending on the pension quantum.  WSIB routinely commutes pensions of 10% or less unless it would not be to the advantage of the worker because the worker’s permanent disability is likely to deteriorate.  For pensions greater than 10%, the policy requires evidence of a rehabilitative purpose to the commutation. The Panel was persuaded that this was a distinction of substance because workers with pensions greater than 10% are less likely to receive commutations due to the requirement that there be a rehabilitative purpose. In this particular case, because the worker’s condition was unlikely to deteriorate, the Panel was persuaded that his commutation would have been granted if it had been considered under the policy applicable to pensions of 10% or less.  The worker was treated differently because his pension was greater than 10%.

The worker argued that s.45 (4) was inconsistent with s. 15 of the Charter because it discriminated between workers with pensions of 10% or less and those with larger pensions.  He argued that this distinction reflected differential treatment based on the degree of disability and implied that more disabled workers were financially irresponsible and incapable of managing their affairs.  In his views, this was offensive to the dignity of more disabled workers. He submitted that the appropriate remedy would be to read s.45 (4) without making a distinction between workers with different pension levels. Alternatively, he asked that the Panel conclude that the Board’s commutation policy was inconsistent with the Charter.

The first issue for the Panel was whether the Tribunal had Charter jurisdiction.  The Panel concluded that, while the pre-89 Act did not confer explicit jurisdiction upon the Tribunal to decide questions of law, it conferred implied jurisdiction. In reaching this conclusion, the Panel noted a number of factors:

• In order to fulfill its mandate, it is necessary for the Tribunal to decide questions of law.
• The nature of the Tribunal’s interaction with the other elements of the administrative justice system supports an inference that the Tribunal has this jurisdiction. The Panel noted that the Tribunal is independent from WSIB, which administers the compensation scheme, and the Tribunal is the final level of appeal from decisions made by WSIB.  Its decisions are final and conclusive, and it has the power to determine its own practice and procedure.
• The Tribunal is adjudicative in nature.
• The nature of the Tribunal’s mandate is such that it is intended to have full capacity to determine questions of law.  This was not diminished by section 86(n) in the pre-1989 Act, which permitted the Workers’ Compensation Board of Directors to review Tribunal decisions that turned on an interpretation of the policy and general law of the Act, and to direct the Tribunal to reconsider.  This power was rarely used and no Tribunal decisions were substantially circumscribed by it.
• The requirement that notice be given to the Attorneys General of Ontario and Canada provides those Ministers with the opportunity to participate and ensures the competent defence of the validity of the legislation, should the government feel it appropriate to do so.
• In Martin, the Supreme Court of Canada cited many similar factors in confirming the Charter jurisdiction of the Nova Scotia Workers’ Compensation Appeals Tribunal.

Applying Martin, a secondary question to be answered was whether the enabling legislation rebutted the presumption that the Tribunal has Charter jurisdiction. The Panel found that there was no such rebuttal.  As discussed above, WSIA (the current legislation), had no application to the appeal.  However, in obiter, the Panel considered whether s.126 of WSIA could rebut the presumption that the Tribunal has Charter jurisdiction. Section 126 stipulates that if there is an applicable WSIB policy, the Tribunal shall apply it when making its decision. If the Tribunal concludes that the policy is inconsistent with, or not authorized by the Act, or that it does not apply to case, the Tribunal is not to make a decision until it refers the policy to WSIB for its review and WSIB makes a direction with respect to this.  The Panel found that this did not preclude the Tribunal from making decisions on questions of law, including Charter questions. It interpreted s. 126 as specifically directing the Tribunal to consider questions of law, as the Tribunal must refer policies that are inconsistent with, or unauthorized, by the Act to WSIB.

The Panel also concluded that the Workers’ Compensation Board of Director’s discretion under s.86 (n) of the pre-1989 Act to review Tribunal decisions that turn on questions of policy and general law did not rebut the presumption that the Tribunal has Charter jurisdiction. In doing so, the Panel adopted the reasons in Decision No.534/90,⁷ a pre-Martin case, which held that s.86 (n) did not impede the Tribunal’s power to decide Charter questions.  Decision No. 534/90 concluded this because the Board of Director’s review was initiated on its own motion, and was not an appeal in the ordinary sense of the term.  The Board of Director’s members were mostly part-time, and few were lawyers or had experience with adjudication of legal issues. Section 86(n) reviews were also extremely rare.

A final issue was whether the Tribunal had jurisdiction to decide Charter questions when the subject matter is the constitutionality of policy.  In concluding that it did, the Panel relied on an earlier Tribunal decision, Decision No. 34/92I3,⁸ which found that policy was included within the scope of the word “law’ as that word was used in section 52 of the Constitution Act.  

Having concluded that it had Charter jurisdiction, the Panel proceeded to consider the constitutionality of the challenged legislation and policy.  The Charter challenge in Decision No. 794/97 was ultimately unsuccessful.

Recently in Decision No.897/02R,⁹ the Tribunal again considered the issue of its Charter jurisdiction.  A preceding decision, Decision No. 897/02,¹⁰ found that the worker’s death due to lung cancer was compensable, and awarded survivor’s benefits to her same sex spouse. WSIB requested a reconsideration, arguing that the amendments to the Workers’ Compensation Act providing these benefits were effective March 1, 2000, and would therefore not apply in this case where the worker died in 1996. The worker’s same sex spouse argued that the definition in the legislation of “spouse” with respect to same-sex survivor benefits contravened the Charter. 

The reconsideration Panel in Decision No. 897/02R agreed with Decision No.794/97 that the Tribunal has Charter jurisdiction for the reasons given in that decision.  Decision No. 897/02R was distinguishable from Decision No. 794/97 because, contrary to the facts of the latter decision, the WSIA, and specifically s.126, applied.  However, the Panel agreed with the obiter dicta in Decision No.794/97 that states that because s.126 of WSIA expressly requires the Tribunal to consider questions of law, it does not rebut the presumption of Charter jurisdiction.  The Panel concluded that the worker’s same sex spouse could raise the Charter issue for the purposes of WSIB’s reconsideration request.  The hearing will reconvene to hear argument concerning whether the Tribunal’s threshold test for reconsiderations has been met, and concerning the merits of the issue.

Martin was also briefly discussed in Decision No. 719/04.¹¹  The employer argued that the WSIA gave WSIB the authority to fund employers’ first aid training but WSIB had failed to enact any regulations or policies to do so.  The employer submitted that under Martin the Tribunal has an “inherent” power of mandamus and asked the Tribunal to direct the WSIB to enact the necessary regulations or policy.  The Panel rejected that Martin confers general inherent powers on administrative tribunals independent of their constituent statutes.  As the Tribunal did not have initial jurisdiction under its governing legislation over the subject matter in issue, the approach in Martin did not apply.

While the post-Martin era is only beginning at the Tribunal, it is already proving interesting in terms of the Tribunal’s findings on its Charter jurisdiction and in the nature of the Charter challenges raised before it. In all likelihood, the significance of Martin will continue to unfold at the Tribunal in 2005.

* Ann Somerville is a lawyer with the Workplace Safety and Insurance Appeals Tribunal, a former Chair of the OBA Workers’ Compensation Section, and secretary of the OBA Public Sector Lawyers’ Section. The views expressed in this article are solely those of the author and not of the Tribunal.  All WSIAT decisions referred to can be found on the Tribunal’s website at www.wsiat.on.ca.

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¹ Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 SCR 504
² Martin, supra, paragraph 48
³ Decision No.534/90R (1995), 37 W.C.A.T.R 1
⁴ Decision No. 755/88 (1988) 10 W.C.A.T.R. 323
⁵ Decision No.34/92 (1996) 40 W.C.A.T.R. 1
⁶ Decision No.794/97 (2004) 69 W.S.I.A.T.R. 1
⁷ Decision No.534/90 (1992) 23 W.C.A.T.R. 121
⁸ Decision No.34/92I3 (1995) 35 W.C.A.T.R. 1
⁹ Decision No.897/02R (December 22, 2004)
¹⁰ Decision No.897/02 (July 31, 2002)
¹¹ Decision No.719/04 (2004) 69 W.S.I.A.T.R. 213

These changes will impact the appeal rights of all stakeholders.  WSIB did not consult prior to revising appeal time-limit “guidelines”

Les Liversidge*

WSIB time limits have been in place since 1998

One of the significant changes which took place when the Workplace Safety and Insurance Act, S.O. 1997, c. 16, Sch. A., [the “WSIA”] became effective in 1998 was the introduction of appeal time-limits, which applied to appeals to both the Workplace Safety & Insurance Board [“the WSIB” or “Board”] and the Workplace Safety & Insurance Appeals Tribunal [the “WSIAT” or “Appeals Tribunal”].

Time limits to appeal WSIB decisions within the Board

For the WSIB, there are two distinct time limits.  One deals with objections to WSIB decisions pertaining to return to work or a labour market re-entry plan and requires that notice of the objection be filed within 30 days of the decision or within such longer period as the Board may permit [WSIA, s. 120(1)(a)] (these will not be commented upon).  The other deals with objecting to any other WSIB decision and requires that a notice of the objection be filed within six (6) months after the decision is made or within such longer period as the Board may permit [WSIA, s. 120(1)(b)].  In all cases the notice must be in writing and indicate why the decision is incorrect or why it should be changed [WSIA, s. 120(2)]. 

Time limits to appeal WSIB decisions to the Appeals Tribunal

There are similar time limits for appealing WSIB decisions to the WSIAT, the final decision-making level in the Ontario workplace safety and insurance [“WSI”] system.  The Appeals Tribunal, of course, is separate and independent of the WSIB. 

A notice of appeal must be filed to the Appeals Tribunal within six (6) months after the decision or within such longer period as the Tribunal may permit [WSIA, s. 125(2)]. 

The imposition of time limits has been controversial – employers have generally supported them, and unions have generally opposed them

With the introduction of the Workers’ Compensation Reform Act, 1996 [Bill 99] business and labour expressed differing viewpoints on time limits.  Business generally supported them as written (six months) [see for example, the submissions of the Employers’ Advocacy Council as recorded in Hansard August 12, 1997] and labour opposed any time limits [see for example the submissions of the Ontario Liquor Board Employees’ Union as recorded in Hansard June 23, 1997].  Notwithstanding initial positions on time limits, the system is now the beneficiary of many years of experience in administering these limits, and it is a prudent time to review and reassess the law pertaining to time limits. 

Administrative “tinkering” rather than legislative review normally follows a period of WSI statutory reform

Unfortunately, history suggests that with respect to WSI reform, no matter how massive a legislative restructuring, there is little future “fine tuning” planned or considered.  I have always considered this to be a mistake, being of the view that the more significant the reforms, the more likely the case that some design errors, discoverable only upon application, would be made.  I have long held the viewpoint that legislative “fine tuning” was a critical component absent to the massive reforms of the 1980s and 1990s.  Typically, rather than a return to legislative adjustments after experience has been gained with new approaches, the system responds administratively in the short term, to correct those design errors.  While not directly intended, this supplants the principle of parliamentary supremacy.  No matter how well intentioned, those administrative interventions have the capacity to undermine the statute itself.  It is my respectful view that this has occurred with respect to recent changes to Board’s approach to appeal time-limits.

One example:  The administration of the legal relationship between the Board and the Appeals Tribunal from 1985 to the early 1990s

The most profound example of this “tinkering” was the administration of the legal relationship between the Board and the Appeals Tribunal in the early 1990s.  The Appeals Tribunal, which was created in the 1985 reforms, at first, had a very broad jurisdiction and mandate, one that, with respect to individual cases, was not all that distinctive of the Board’s.  Both institutions acquired their jurisdiction from the same source – the Act.  At the end of the day, if there was an interpretive disagreement on the application of that Act, an elaborate process was put in place whereby the Board could call up an Appeals Tribunal decision for “review”.  This process ensured a “legal harmony” within the system, and was a means to protect against the Board and the Appeals Tribunal creating different interpretative frameworks in the long term. 

This process, though, was within the total control of the Board.  At first, the Board responded to interpretative disagreement by calling up a few Appeals Tribunal decisions for review (chronic pain, accident definition, retroactivity) but quite quickly, the Board’s appetite for this process waned, and soon, no matter what the issue, the Board did not review decisions of the Appeals Tribunal, even those which applied a different interpretation of the law (such as stress entitlement and reemployment cases).   The underlying expectation in the statutory design, of course, was that if the Board did not call up an Appeals Tribunal decision for review, it would be assumed that the Board agreed with the Tribunal’s interpretation, and would refine its policies accordingly.  This of course, is not what transpired. 

By the early 1990s, the Board chose to ignore the Appeals Tribunal

By the early 1990s, it was clear that the Board chose to simply ignore interpretive disagreements of the Appeals Tribunal.  Rather than expend the required effort to review a Tribunal decision, it was more expedient to continue on with Board business as usual.  The very unsatisfactory and untenable result was that, over time, on many issues, distinct interpretations applied depending on where the case was decided – the Board or the Appeals Tribunal. 

Over time, the interpretive distinctions between the Board and the Appeals Tribunal became a political issue.  However, rather than insist that the Board exercise the responsibilities expected under the law and call up Appeals Tribunal decisions for review as circumstances required, the Appeals Tribunal was labelled as the culprit by disagreeing with the Board’s interpretation.  With the 1998 reforms, among other things, the lawful jurisdiction of the WSIAT was significantly adjusted requiring the Appeals Tribunal to apply Board policy.  For the most part, this solved the “problem” of differing interpretations.  However, where there is no policy, the Appeals Tribunal is free (and arguably legally required), to present its own interpretation and analysis, if circumstances so warrant. 

Recent WSIB actions may result in different approaches between the WSIB and the WSIB on time-limits in the long-term

This brings us back to time limits.  Recent actions on the part of the WSIB have ensured that systemic differences with respect to the administration of a fundamental process – the time allowed to appeal a decision – will be allowed between the WSIB and the WSIAT administration of essentially identical matters.

Time limits have attracted much appeal activity

As if WSI issues are not litigious enough on their own, the imposition of time limits has given rise to a huge body of time limit appeals, adding to an already busy appeal schedule.  Since their inception, over 1,800 time limit appeals have been considered by the Appeals Tribunal alone (based on a recent electronic search).  Last year, the current Minister of Labour, the Hon. Christopher Bentley, advised a Canadian Bar Association forum that he is sympathetic that time limits should be addressed [Briefly Speaking, Ontario Bar Association’s News and Events Forum, Vol. 30 No. 2, June, 2004]. 

The author’s position on time limits

I support a review of the limitation periods in the WSIA.  In my opinion, six months is quite unworkable.   For the informed and represented litigant, they do not usually pose a problem.  Most "potential" appeals are filed in time because the provisions of the WSIA are technically adhered to simply by filing a form letter providing notice of intent to appeal.  This means that many appeals never proceed, and those that are unlikely to ever proceed, are initiated simply to preserve appeal rights.  Once an appeal is filed, of course, the party responding to the appeal must begin to prepare, which needlessly wastes resources if the appeal never sees the light of day.

A six month time limit is out of sync with WSI administration – the system is not that efficient

Of course, before any party can advance an informed appeal, it is usually necessary to first obtain a copy of the WSIB file.  That process alone may consume many months.  Therefore, the informed appellant will usually simply automatically file an appeal when file disclosure is requested, and in so doing, preserve appeal rights without actually filing an appeal, or even knowing if an appeal is warranted.  The WSI system simply is not sufficiently efficient for a six month appeal time-limit.

The person who does not appeal in time is usually the unsophisticated appellant

This also means that the person who runs afoul of the limitation period is usually the uninformed, un-represented or unsophisticated appellant (or respondent because limitation periods apply for cross appeals as well), which is the very class of individual for which, one would think, the system has the most interest in preserving legitimate appeal rights.  It must be noted however, that the limitation periods at the Board and at the Tribunal are open to extension at the discretion of the Board and/or Tribunal [ss. 120(1)(b) and 125(2) respectively] and therefore are not true time limits at any rate.

I am not opposed to limitation periods per se, however, it is my view that the six month limitation period has, with experience, now been proven to be unworkable.

The best case to advance, in my respectful view, is to extend limitation periods to two years.  A two year limitation period also conforms with the Limitations Act, 2002, S.O. 2002, C. 24, which became operable in 2004, and which provides for a basic limitation period of two years.  Since a WSI appeal is less appeal and more of an application for a de novo determination, in my view, this approach is consistent with the expectations and obligations of the Ontario WSI system.  I am convinced that a two year limitation period achieves the policy goals desired.  For more on the Limitations Act, 2002, readers may wish to review the following issues of The Lawyers Weekly: Vol. 23, No. 26. November 7, 2003; Vol. 23, No. 28 November 21, 2003; Vol. 23, No. 34 January 16, 2004.

Any changes to time limits though must be consulted upon and directed at changing the WSIA

Since time limits are enshrined in the WSIA, and as they received the highest level of public commentary during public legislative committee hearings (prior to being enacted), any changes to time limits should be open to an equally broad public consultation before change is considered, let alone implemented.

The WSIB and the WSIAT have published “guidelines” to assist in the administration of time limits

While WSIB policy on time limits is rather scant, the WSIB Appeals Branch has published “guidelines” in the document “Appeals System: Practice and Procedure” [“ASPP”].  Up until very recently, the ASPP set out these criteria to be considered in applying WSIB discretion to extend the time limit to appeal:

• Serious health problems;
• Whether there was actual notice of the time limit;
• Whether there are other issues in the appeal which were appealed within the time limits and which are closely related to the issues not appealed within the time limits;
• The significance of the issue in dispute; and
• Whether the party was able to understand the time limit requirements.

Similarly, the WSIAT has set out the following general, albeit more elaborate, criteria to be considered in time limit cases [WSIAT Practice Direction: Time Extension Applications]:

• The lapse of time between the expiry of the six months and the date the notice of appeal was filed and any explanation for the delay;
• Whether there is evidence to show an intention to appeal prior to the expiry of the six months (e.g., notice of appeal is mistakenly sent to the WSIB rather than the Tribunal);
• Whether the applicant ought to have known of the time-limit (e.g., notice appears in the cover letter to the Board decision);
• Whether the applicant acted diligently (note that the Tribunal may apply a higher standard of diligence if the applicant is represented since representatives are expected to be knowledgeable about workplace safety and insurance law);
• Whether there is prejudice to a respondent (e.g., a witness is no longer available to testify);
• Whether the case is so stale that it cannot be reasonably adjudicated;
• Whether the issue is so connected to another appeal that the Tribunal cannot reasonably adjudicate the other appeal without considering it (e.g., the “whole person” concept applies);
• Whether a refusal to hear the appeal could result in a substantial miscarriage of justice due to defects in prior process or clear and manifest errors; and
• Whether there are exceptional circumstances (e.g., very serious illness or family considerations). 

Recent decisions of the WSIAT suggest that the Appeals Tribunal is applying a very limited discretion to time limit appeals

Based on a recent decision of the Appeals Tribunal [W.S.I.A.T. Decision No. 1743/04E (October 29, 2004), Vice-Chair Keil], which seems to present a very hard-line with respect to the application of discretion pertaining to time limit appeals, the WSIAT is of the view that unless there are very exceptional circumstances associated with a failure to appeal within the time limits, an appellant will be denied a right of appeal.  Interestingly, the WSIAT takes the view that as time limits have been in place for several years now, there should be little leniency associated with time limit considerations.  The Decision No. 1743/04E Vice-Chair wrote:

While a certain leniency was applied in the early transition days when the time limits came into effect and people were not as knowledgeable as they currently are, it is now generally presumed that practitioners in the area of compensation are familiar with both the time limits and the consequences of not meeting them.  Accordingly, the presumption at this point should be that compelling reasons must exist not to enforce the time limits [W.S.I.A.T. Decision No. 1743/04E (October 29, 2004), Vice Chair Keil, at para. 14].

Notwithstanding that I strongly disagree with the Appeal Tribunal’s determination in Decision No. 1743/04E, the principles set out in that decision are quite at odds with very recent developments at the WSIB. 

I am familiar with the facts behind Decision No. 1743/04E as we represented the employer in that case.  My client was found not to have adhered to the time limits for a cross-appeal, even though the worker appellant significantly delayed in advancing the main appeal (although it was filed “in time”, the appeal readiness form was not filed until almost two years later).  Those familiar with the WSIAT appeal filing process are aware that until the appeal readiness form is filed, the party responding to the appeal is not fully aware that the appeal is even proceeding.

The WSIAT appeal notices, which were mailed to the company, were mailed to a branch of the firm, and due to internal error (which was readily admitted), were not referred to the managing minds within the company.  While this was clearly an internal mistake on the part of the company, as soon as the company retained counsel, the notice to appeal was immediately filed.  In fact, the cross appeal notice was launched even before the company received the case materials from the Appeals Tribunal.

Even though the WSIAT Practice Direction suggests there should be a different standard for representatives and clients (which I agree with), the Decision No. 1743/04E Vice-Chair applied the same standard to the employer directly, apparently on the rationale that since this was a large “sophisticated” company, it must be sophisticated in WSI matters.  The Tribunal held (incorrectly in my opinion) that:

The employer is a large, sophisticated organization.  It is not compelling to advance “administrative deficiencies” as sufficient grounds for allowing a time extension at this stage [Decision No. 1743/04E, at para. 20, emphasis added].

The reference to “at this stage” obviously refers to the length of time that time limits have been a part of the WSI system.  Yet, the WSIAT Practice Direction clearly advises that a different standard would be applied against representatives in comparison to appellants directly.  While large employers may indeed be “sophisticated organizations”, with but a few exceptions, many are not all that sophisticated with respect to WSI matters, and certainly, not with respect to time limit matters.  In Decision No. 1743/04E, the WSIAT held firm to a very strict interpretation of the statutory time limits holding that “there is a strong presumption that a statutory time limit will have effect, unless exceptional circumstances exist” [Decision No. 1743/04E, at para. 21].

The WSIB has recently revised internal “guidelines” that open up WSIB discretion on time limit appeals – the WSIB is going in the opposite direction of the WSIAT

The approach of the Appeals Tribunal is all the more interesting in light of very recent changes to the Board’s “guidelines” pertaining to time limit disputes.   In September, 2004, the Board published revised Appeals Systems procedures (ASPP), which in part, disclosed previously unannounced changes to the instructions to WSIB decision-makers with respect to time-limit disputes.  Senior officials at the WSIB have insisted that these “guidelines” do not represent a change in WSIB policy per se, but that they are to be applied by Board adjudicators, at all levels, nonetheless.  The “guidelines” were approved at the WSIB Executive Committee level (not by the WSIB Board of Directors).  While the ASPP is publicly available on the WSIB website, the memorandum to senior WSIB management was obtained through a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, as amended [the “FOIPPA”]. 

The memorandum provides the following explanation for the changes:

For several years, the injured worker community has expressed concerns with the length of time they have to appeal a WSIB decision and the potential harsh consequences that can result when appeal time limits are not applied in a flexible manner.

To address these concerns, Executive Committee has approved a revision to the administrative guidelines for extending the time period for filing an appeal.  We believe the change will improve accessibility to the system while maintaining the legislative principles of the Workplace Safety and Insurance Act.

The WSIB Executive Committee change amounts to the insertion of this policy directive: “Broad discretion to extend will be applied where appeals are brought within one year of the date of the decision.  Additional criteria to be considered for longer delays include” . . . (the prior list of criteria set out earlier).

I will address several issues arising from these changes: i) whether or not the “administrative guideline” is a change in “policy”; ii) the process adopted to change the “guideline”; and, iii) whether or not the changes are consistent with the WSIA.

A summary of concerns

I disagree that the “guideline” is not a policy change.  While the guideline may not be a policy in the context of s. 126 (the significance of which will be explained later), and while it has only internal WSIB applicability, as it is designed to influence WSIB decision making, and ensure consistent application, it rises to the level of policy in the context of any pragmatic definition, notwithstanding the Board’s labelling.  

I question the manner in which the Board has chosen to develop and implement the guideline change.  Consultation not only provides enhanced legitimacy to rule changes, it is a process through which public awareness and acceptance is acquired.  Moreover, and more significantly, it is clear that it is the six (6) month deadline in the legislation that is being addressed.  As such, it is more appropriate for the Board to exercise its discretion to suggest statutory change to the Government, rather than take a “band aid” approach.

I disagree that the guideline is consistent with the WSIA, although I recognize that the issue is unlikely to be judicially tested.  By advising that “broad discretion to extend will be applied where appeals are brought within one year” the guideline is doing two things: it is effectively over-riding the legislative direction of a six month limit, and while so doing, is distinguishing or limiting the discretion that is to be applied for cases where the appeal is brought within eleven (11) months versus one where the appeal is brought within thirteen (13) or more months, improperly fettering the discretion of decision makers (in both instances).  It is the reference to “within a year” that is problematic.  Had the policy simply required that WSIB decision-makers apply a broad discretion, then, in my respectful view, the policy would be legally sound.  The six months stipulated in the statute must be considered to have effect and meaning.  The Board’s revised “guideline” has rendered the six months meaningless, and has instead, simply effectively replaced “six months” with “twelve months”.

I also question the decision not to codify the change as an official policy so that the new guideline is applicable to the WSIAT review of WSIB time limit decisions.   By choosing not to establish an actual “policy” that meets the test of policy for the purposes of s. 126, the Board will allow similar situations to be treated differently by the WSIAT and the WSIB.  This, I respectfully suggest, is contrary to the policy purposes of s. 126, and is an unwise discretionary decision.

I will now expand upon the positions just introduced.

Is the change an “administrative guideline” change or a “policy” change?

The WSIB position – it is not a policy unless so officially categorized

It seems to be the case that the Board is of the view that the “guideline” change is not a policy change as the Board has chosen not to label it as a policy change.  In one context, which I will introduce and address in a moment, this would be an appropriate and valid institutional approach of the WSIB.

For the purposes of s. 126 of the WSIA, a “policy” is what the Board defines as a policy

Without commenting on whether or not the Board has exercised an appropriate choice in this instance, there are instances where the labelling of the document as a policy or not will be determinative as to the scope of applicability of that document. 

Of course, the question as to what constitutes a Board policy acquired increased legal significance with the proclamation of the WSIA, and was a question which captured the joint interests of the WSIAT, the WSIB, and the stakeholder community a few years ago.  The WSIAT is now required to apply a Board policy if an applicable Board policy exists with respect to the subject matter of the appeal [WSIA, s. 126(1)].  Since (at least) July, 2001 it has been clear that, for the purposes of s.126, a policy must be published in either the WSIB Operational Policy Manual [“OPM”] or the Employer Classification Manual and must be “minuted” [see July 13, 2001 widely distributed letter from WSIB Vice-President, Policy and Research].

Therefore, if a particular document does not rise to this standard, regardless of whether it was widely applied throughout the Board, it would not be a policy that the Appeals Tribunal is required to apply.  The need for a clear and unequivocal statement as to what a policy is (and what a policy is not), is established by the legislative requirement of the Appeals Tribunal to apply Board policy.  Therefore, for the purposes of s. 126 of the WSIA, a policy is what the Board defines as a policy, by virtue of the exercise of certain prescribed protocols.

The “guideline” in question is not a policy for the purposes of s. 126

Therefore, applying the Board’s s. 126 policy definition to the time limit issue, the document in question is not a policy for the purposes of s. 126, since it does not follow the prescribed approvals and formats.  In other words, for the purposes of s. 126, the WSIB has full control over what is, and what is not, a policy in the context of the legal jurisdiction of the Appeals Tribunal. 

In making a determination of course, the Board must assess whether or not it is in the interests of the effective administration of the WSI system for the Board to formally develop and adopt, or not adopt, a “policy”. 

Therefore, the Board and the Appeals Tribunal may legally apply different interpretations of the statutory time limits

One of the policy reasons behind the refinements to the WSIAT’s jurisdiction as prescribed by s. 126 is to ensure greater consistency between the adjudicative actions of the Board and the Appeals Tribunal with respect to interpretative questions.  Should the Board be content to have a certain matter defined in a “guideline” or other means that does not rise to the level of a “policy”, in one context; it is within the legal prerogative of the Board to do so.  However, by so doing, a risk is created that the Appeals Tribunal may offer an alternative interpretation, and may be free to do so, since a “Board policy” as defined for the purposes of s. 126 of the WSIA, does not exist.

Notwithstanding that this is likely not in the best interests of the WSI system, it is within the legal prerogative of the Board

I will return to this theme later, however, simply introduce at this juncture, that it is likely not in the better interests of the Board, or in the interests of effective administration of the WSIA, or in the interests of worker and employer stakeholders, for the WSIB not to elevate the “guideline” to the level of “policy”. 

A document that is not a “policy” for the purposes of s. 126, may well be a “policy” for the purposes of the WSIB’s internal exercise of administrative discretion

However, even though a document may not rise to the level of “policy” for the purposes of s. 126 of the WSIA, it may well be a “policy” for other purposes pertaining to WSIB administration of the WSIA.  By issuing the guideline, there is an expectation that individual WSIB decision-makers will be expected to follow the guideline.  Guidelines have recently been described as “soft law” [see for example “Hard Choices and Soft law”, (2003) 40 Alta.  L. Rev. 867 – 893 (Sossin, Smith)], and judicial treatment of soft law is evolving.  Soft law however, as it is not subject to parliamentary accountability and the procedural formality of legislation and regulation, cannot give rise to enforceable rights.

However, by the act of advancing a “guideline” which is expected to be influential on decision-makers within the Board in the context of exercising discretion on time limit considerations, the Board has in effect, created an internal policy, that with respect to the exercise of internal discretion, achieves the status of de facto law, at least as applied by WSIB decision-makers.  It is clear that there would be an expectation for WSIB decision-makers to adhere to the instructions set out on the guideline, and that while a decision-maker does have the latitude to make a “fair and just” decision in consideration of the individual circumstances of the case, every WSIB decision-maker would be required to adhere to the “guideline”.

Of course, technically and legally, other than within the specific context of s. 126, all WSIB policy amounts to being no more than a “guideline”, in the sense that WSIB policy cannot define rights, unlike the statute itself, or regulations approved by the  Lieutenant-Governor-in-Council [for one, of many discussions, on the legal effect of WSIB policy vis-à-vis conferring rights, refer to W.C.A.T. Decision No. 915 (1989), 7 W.C.A.T.R. 1, at 253, Technical Appendix B].

The inherent problem of “guidelines” and the absence of public consultation

The WSIB should significantly limit the development of internal “guidelines”

Of course, aside from the s. 126 reasons (which will be returned to later), there are other sound public policy reasons that should constrain the WSIB from issuing internal “guidelines”.  Board policy, of course, is readily available to the public, usually in the form of a policy manual.  The Policy Manual (now published on the Board’s web-site), has been publicly available now for over two decades.  Not only is the existence of such a manual necessary to assist Board adjudicators in the consistent adjudication of claims, the manual is also the primary tool by which members of the public can inform themselves of the Board's position on various issues. 

The publication of policy is essential to ensure fair and open adjudication

The publication of policy is an important component in the fair and open adjudication of claims in an administrative justice system [see W.S.I.A.T. Decision No. 25/98I (1998), 46 W.S.I.A.T.R. 207].  Of course, well in the past, the (then named) Workers’ Compensation Board [“WCB”] did not publish its internal policies.  The administrative and natural justice issues that surround such a past practice are clear and have long been remedied. 

Board policy of course, aside from the rigor of the normal internal approval process, usually must undergo external consultation (which will be addressed in a moment) and is published.  Publishing policy and making it readily available is an essential ingredient to administrative justice and fairness.  Significant changes in policy though must be published both before and after the change.  In other words, legitimate policy change must be preceded by public consultation, and the invited opportunity for public comment. 

The Board’s time-limit memorandum, and the rationale behind it, is available to the public only when someone becomes aware of its existence and makes a request under the FOIPPA.  It is though, arguable that the inclusion of the essence of this guideline in one sentence in the WSIB Appeals System Practice and Procedures document (at Appendix A, page ii) meets a test of public availability.  If it does meet this test, I respectfully suggest that it does so quite minimally.  There is no specific reference to this policy change otherwise on the Board’s website, nor is there a specific reference to the change under “time limits”, yet this change has the capacity to impact every single WSIB appellant, which number, on a yearly basis, in the many tens of thousands. 

So, while I am of the viewpoint that the scope of publication and announcement surrounding this change is insufficient and minimal, there is some public disclosure, although the reasons behind this change are, for the most part, not generally known. 

The WSIB reliance on “guidelines” over “policy” is inappropriate

The issuance of guidelines of this type is, in my view, very problematic.  This practice represents the antithesis of the entire thrust of contemporary WSI reform as practiced over the last twenty (20) years, and in my opinion, is an unfortunate departure from a clear and unequivocal commitment to openness.

While it is appropriate for the Board to issue administrative guidelines, the scope of those guidelines must be limited.  Legitimate “guidelines” must be limited to circumstances of process not substance.  Any matter dealing with the rights or obligations conferred upon a person, in my considered opinion, must be addressed as a policy.  Policy has been described as a “guideline developed under the law, to create consistency and fairness in the application of legislation” [see W.S.I.A.T. Decision No. 652/93R (December 15, 2000), at para. 29].   Using this very simple definition, the “time limit guidelines” rise to the level of policy.

The struggle to change the WCB from an institution that relied upon internal guidelines, many of which were unpublished, to one where policy was developed in an open and consultative manner, was a long and arduous one.  This struggle though was successful and the Board was forced to change its methods.  The mindset which followed this change became manifest in every facet of WSI administration, within and outside of the Board itself.  This change (which in past writings I have referred to as a true Renaissance), was an extraordinary metamorphosis, and culminated in what I can describe, without exaggeration, with the Ontario WSI system becoming the archetypical example of Canadian administrative justice.  While the system has not reacquired all of its past characteristics, the zenith of that change is clearly now well behind us. 

“Guidelines” that confer or define rights or obligations must be treated as policy.  While the Board has the lawful discretion to define policy for the purposes of the Tribunal’s jurisdiction, it cannot change the substantive effect of a document through a feint of labelling.

Problems associated with the process used

Introduction

I have four issues to address with respect to the process adopted: i) the absence of broad based consultation on a matter of significance; ii) a related concern that which includes concerns that the WSIB responded to a single constituency without requesting the comment or participation of another affected community; iii) the decision not to formally adopt a policy and thus risk the likelihood of differing interpretations between the WSIB and the WSIAT; and, iv) the decision not to exercise WSIB Board of Director discretion and bring the substantive matter to the attention of the government. 

The absence of broad based consultation on a matter of significance debases the legitimacy of the new policy

A requirement to consult is an essential ingredient to the appropriate discharge of administrative discretion.  However, consultation is able to take on many various forms, from “notice and opportunity to participate”¹  at one end of the spectrum (what I will describe as the minimum content consultation) to actually involving those affected by a rule or policy in the formation of the rule.²   To effectively consult, an agency must ascertain the array of various interests within the agency’s sphere of authority.³

The WSIB itself has a long-established history of consulting on policy changes, which has been rather tumultuous and varied.  From a standing (non-existing) start in the mid-1980s, by the late-1980s and early 1990s, the Board earnestly consulted on every major issue, ensuring public participation and mutual accountability.  By the mid-1990s this commitment had clearly waned, to the point where the Board felt the need to publish, for discussion purposes, “Strategic Consultation Principles” [March 17, 1999], suggesting that it wishes to “renew” a relationship with its stakeholders, and re-establish a consultation strategy. 

In the Board’s 2001 Annual Report, the Board announced that “WSIB policies are constantly reviewed and revised in consultation with Ontario workers and employers” [2001 WSIB Annual Report, p. 14], and more recently unequivocally stated that the Board “is committed to keeping representatives of workers, employers, health care providers and all partners involved and informed” [WSIB 2003 Annual Report, p. 12]. 

The “guideline” changes were in direct response to political considerations

It appears that the “guideline” changes were in direct response to concerns expressed by the injured worker community, although it is not clear how those concerns have been advanced to the Board, or how they were considered by the Board.  I am personally unaware of these matters being addressed in a broad public forum.  It is my view that such an approach to policy design does not adhere to the reasonable expectations of stakeholders.  This is problematic from several fronts.

The Board’s approach to policy development in this instance opens the door to future unfairness  

Firstly, an impression is left that WSIB policy development which affects all constituencies is reactionary to the concerns of a single constituency.  The capacity for unfairness under such an approach is readily apparent.  In the immediate instance, the opportunity for a full and robust public dialogue is denied.  As a signal, it suggests a waning of the (recently recharged) WSIB commitment to consult, although I doubt that WSIB officials considered that their views undermined either the Board’s commitment or practice to consult.

Secondly, and more importantly, by not involving the WSIB stakeholder community in a matter that clearly and directly affects their rights, the policy change acquires a lesser legitimacy.  A policy that has been shaped by the opinion, commentary and perspective of all of the impacted constituencies acquires greater legitimacy. 

The WSIB responded to a single constituency without requesting the comment or participation of another affected community

A related alarm surrounds a process that responded to the concerns of a single constituency without requesting the comment or participation of another affected constituency.   It is my view that this is not an appropriate exercise of WSIB discretion and is fraught with fairness considerations.

A core component of the ability for stakeholders to effect change within the Ontario WSI system, at a minimum, involves the practice of petitioning the Board, formally and informally, for a policy change.  In fact, most significant long-standing policy change of importance has been externally initiated.  Rarely has the WSIB demonstrated a capacity for internally initiated far-reaching reform initiatives.  This is not a criticism of the Board – it is simple recognition of the realities of change, especially change in the public policy arena.  Most, if not all, WSIB policy reform finds some external root.

However, by deciding to immediately implement significant change advanced by one group or constituency, without involving other affected communities, several problems are created.  The most obvious is that the Board may (unintentionally) subvert the legitimate interests of other constituencies or groups.   This is not to suggest of course, that the WSIB is hamstrung by a duty to consult on all matters.  Such an expectation would serve to grind WSI executive administration to a halt.  However, as already discussed, policy decisions which alter substantive rights, must first be subject to some form of consultation. 

Another is that the scope of change is limited by the absence of an appropriate process.  Very often, and particularly in the field of public policy development, consultation allows for a growth of ideas that otherwise would remain unrequited.  A robust public dialogue, if earnestly advanced in a model of true consultation, very often will bear fruit beyond original expectations. 

The process (or absence of process) with respect to the matter at hand, is therefore self-limiting.  This type of approach curtails innovative thinking.  Idea development becomes staid and stalled.  When one compares the ideas which were developed within the (broadly defined) WSI community from the mid-1980s to the early 1990s, and compares that to the state of contemporary idea development, the distinctions are stark.  Yet, it is generally considered that the period from 1985 – 1990 represented the pinnacle of fairness and stakeholder participation.  It certainly was a period of significant change that has been generally lauded. 

In the matter at hand, had the issue been opened up for public dialogue, it is very likely that a larger consensus for change would have emerged, and that the momentum of that consultation could have very well lead to the more appropriate solution – legislative reform. 

The WSIB decision not to adopt a formal policy risks the likelihood of differing interpretations between the WSIB and the WSIAT

As I have already set out, for the purposes of determining the lawful jurisdiction of the WSIAT, the WSIB maintains a broad discretion not to codify practice into policy.  However, the effect of the exercise of that discretion must be carefully understood.  In the absence of a Board policy, the Tribunal is free to present its own interpretation of the legislation.  In the case of time limits, it is clear that a very different and distinct adjudicative treatment is evolving between both expert institutions.

The WSIB revised “guideline” suggests that a broad discretion should apply in instances where the appeal is advanced within twelve months of the decision.  As noted earlier, the WSIAT takes a very different approach advancing the thesis that “. . . there is a strong presumption that a statute time limit will have effect unless exceptional circumstances exist” [see W.S.I.A.T. Decision No. 1743/04E (October 29, 2004), Vice Chair Keil, paras. 20, 21, emphasis added]. 

This distinction will give rise to some interesting future jurisprudential developments.  These developments will be rendered all the more interesting and significant in light of the fact that the WSIAT exercises adjudicative discretion over time limit considerations from two similar, but legally distinct sources; one where the Tribunal is exercising its jurisdiction pursuant to s. 123(1) of the WSIA and which is reviewing a time limit appeal decision of the WSIB, and one where the Tribunal is exercising an original jurisdiction pursuant to s. 125(2).  I will address the significance of both sets of circumstances.

Time limit appeals considered pursuant to s. 123(1):

Under s. 120(1)(b), a person appealing a WSIB decision must do so within six months, or within such longer period as the Board may permit.  It is these appeals which fall within the Board’s jurisdiction, and to which the revised “guideline” is applicable.  WSIB time-limit decisions are appealable to the WSIAT pursuant to s. 123(1).  Since the time-limit “guidelines” are not policy for the purposes of s. 126, the WSIAT is not required to apply them.  In fact, as noted, the WSIAT has developed a contrary approach, holding that it will not apply a broad discretion in time limit matters [see W.S.I.A.T. Decision No. 1743/04E (October 29, 2004), Vice Chair Keil, paras. 20, 21]. 

While the circumstances addressed in Decision No. 1743/04E relate to a matter for which the WSIAT had original jurisdiction, it is not conceivable that the Tribunal will develop an entirely different standard for WSIB time-limit decisions.  Therefore, it is certainly possible, likely, and based on the Decision 1743/04E reasoning, quite probable, that the “broad discretion” for appeals made within a year will not be applied by the WSIAT. 

Yet, the Board has the capacity to codify this change in policy, thereby ensuring that the WSIAT is required to apply the same adjudicative standard as the WSIB decision-maker.  I should add that both parties will have standing with respect to a time limit dispute.  If a time-extension is granted on the basis of the Board’s “guidelines”, the other party (worker or employer) may appeal that decision to the Appeals Tribunal. 

Time limit appeals considered pursuant to s. 125(2):

A similar time limit is set out in the WSIA with respect to appealing WSIB decisions to the WSIAT.  Under s. 125(2), an appellant must appeal to the WSIAT within six months after the WSIB decision or within such longer period as the Tribunal may permit.  As set out earlier, the WSIAT has adopted an approach quite contrary to that of the WSIB.  It is therefore likely that the WSI system will treat similar cases, within the same system, governed by identical legislative directives, quite differently, depending on which institution has jurisdiction – the WSIB or the WSIAT.  This aberrant result is not supportable.

The true problem is with the law itself – the WSIB has failed to exercise a delegated responsibility

It is clear that the WSIB “guidelines” are attempting to address a perceived or actual deficiency in the law itself.  As set out earlier, the “guideline” effectively re-writes the statute and changes the “six” months to “twelve” months.  The reason behind this change is clear – the adherence to the six month limit is systemically unfair. 

I agree that it is.  I am in full agreement that the six month time-limit provisions in the WSIA, while in principle supportable, have now been proven to be unworkable.  The system simply is not responsive enough that six months is a reasonable length of time within which to expect an exercise of an appellant’s appeal rights.  However, I doubt that twelve months is much of an improvement.  As noted earlier, I believe that a two year time limit adequately achieves the policy expectations of a time-limit, while recognizing the realistic limits of the system itself.  A two year time-limit is also consistent with the principles of the Limitations Act, 2002, which would provide a more solid credibility.

The WSIB Board of Directors has a duty under the WSIA to advise the Government of the need for statutory reform

The WSIA places certain expectations on the WSIB.  Since the WSIB is clearly the expert agency with respect to WSI issues, the legislators were sensitive to the special expertise of the Board and its unique position to recognize, over time, certain deficiencies in the WSIA.  Consequently, the WSIA conferred upon the Board an important responsibility - to review the WSIA and recommend amendments [WSIA, s. 159(2)(b)].  If it is the case that in the considered view of the WSIB Board of Directors that the time-limit provisions of the WSIA are unfair, then the Board is under a legislatively mandated obligation to recommend amendments to the Government.  It is my view that the Board is undermining that obligation by putting a policy “band-aid” on a gaping wound.

Is the “guideline” consistent with the WSIA?

Senior officials within the Board have advised me that the Board is confident that the “guideline” is consistent with the WSIA.  I disagree.  It is my respectful opinion that the Board’s “guideline” is contrary to the tenets of statutory interpretation.

The statutory language is not particularly cumbersome.  The WSIA stipulates that a person objecting to a WSIB decision shall file a notice of objection with the Board “within six months after the decision is made or within such longer period as the Board may permit”. 

The WSIA creates a clear and unequivocal requirement on an appellant to file a notice of objection.   It is clear though that the WSIB “guideline” effectively serves to adjust the effect of the “six months” provision set out in the statute.  The guideline is clearly designed to distinguish an appeal for which notice was provided to the Board after six months but before twelve months, with an appeal for which notice was provided after twelve months.   In short, the “guideline” will ensure that an appeal filed eight months after a decision is made will be treated quite differently than an appeal filed thirteen months after a decision is made. 

In other words, the “exceptional circumstances” test, or an equivalent WSIB test, as set out in W.S.I.A.T. Decision No. 1743/04E (October 29, 2004) may be applicable to WSIB appeals lodged after twelve months, but, would not be applicable to appeals lodged between six and twelve months. 

The only discretionary aspects of s. 120(1)(b) relates to the six months provision.  The WSIA stipulates that a notice must be filed within six months “or within such longer period as the Board may permit”.  Therefore, the discretion conferred upon WSIB decision-makers by the guideline must relate to the discretion to allow a longer notice period.  The WSIB has accomplished this by providing a general appeal notice extension to twelve months.  This is, in my respectful view, where the interpretive error has occurred. 

Some general points on statutory interpretation

It is trite to point out the rules of paramountcy.  Legislation is paramount over WSIB policy and certainly over WSIB guidelines.  In fact, as addressed earlier, other than for the purposes of s. 126 and placing constraints on the lawful jurisdiction of the WSIAT, WSIB policies, in a legal sense, are simply guidelines, as policy cannot confer rights or create obligations beyond that directly empowered by the WSIA.

The WSIB is thus required to give effect to the instructions set out in the legislation.  Moreover, the Board internal memorandum discloses that the guideline is being revised because “the injured worker community has expressed concerns with the length of time they have to appeal a WSIB decision and the harsh consequences that can result when appeal time limits are not applied in a flexible manner”. 

The WSIB does not have the power to legislate – it must follow the directives of the WSIA

This is clearly a political not an interpretive concern.  The WSIB does not have the power to legislate and certainly does not have the power to effectively override legislative instructions, no matter how disagreeable they may be.  As discussed earlier, the WSIB does have the power, and indeed the obligation, to recommend changes to legislation, but it cannot de facto write legislation.

It is presumed that legislation is written with a clear mind to the intent of the words chosen, and that the legislature is a careful user of language.  Legislative words are analyzed in their immediate context, with the basic presumption that the drafters deliberately chose the particular sentence structure and punctuation etc.  Words are also analyzed in the larger context of the entire Act.  Based on the basic rules of statutory interpretation, it is my view that the Board has exceeded its jurisdiction and has effectively undermined the intent of the WSIA and overridden the express words of the statute.

The six months period must be afforded meaning

In the case of time-limits, the legislators chose six months as a significant demarcation point.  An appeal may be filed as a matter of right within six months from the date of the decision.  After six months, an appeal may be filed only if the Board allows for a longer period.  Allowing a longer period is not automatic. 

The six month point must have meaning, and must be interpreted and applied as reflecting the intent of the legislature.  The WSIB revised “guideline”, if it is to have any meaning or effect itself, will ensure a different treatment generally for cases appealed between six and twelve months with those appealed after twelve months. 

By requiring WSIB decision-makers to apply a broad discretion for appeals filed between six and twelve months, the “guideline” is instructing decision-makers to effectively ignore the provisions of the WSIA, and to render the six month provision effectively meaningless.  The Board has, in effect, overridden the statute. 

The WSIB does not have the discretion to set the time limit period

It is clear that the discretion described in the “guideline” must refer to the discretion of the Board to allow an appellant to file a notice “within such longer period as the Board may permit”. 

The Board though, has not been provided with the discretionary power to set the time limits “as the Board may permit”, but only to extend them as the Board may permit.  If it were the case that the legislature intended appeals filed between six and twelve months to be treated differently than those filed after twelve months, basic principles of statutory interpretation would expect that the statute would have clearly so stated.  If the principles set out in the “guideline” were what the legislators intended, the WSIA would have reflected that intent.  It did not.

The time-limit discretion is intended to be “case specific”

The time-limit discretionary power conferred upon the Board is clearly intended to be a case-specific power and not a general discretionary power to be codified in a universally applied policy or guideline, at the discretion of the Board, by WSIB management, by its Management Committee or by its Board of Directors.  A textual and contextual reading of the WSIA clearly shows that the discretion was intended to be a case specific one. 

Throughout the WSIA, the powers of the Board that relate to cases are described in both specific and general terms.  This distinction must be conferred meaning and intent.  For example, under s. 119(1), the Board is required to make a decision “based upon the merits and justice of a case”, thus mandating a certain requirement and expectation on the Board generally for all cases. 

However, the discretion conferred upon the Board with respect to time-limits relates to “the decision” [WSIA, s. 120(1)(b)], clearly limiting the scope of the WSIB discretion to allow for the filing of an objection “within such longer period as the Board may permit”.  The intent of the WSIA is clear – the six month provisions are to be given significant weight and are to have meaning, but, in certain cases, for the reasons unique to that case, it may be just for the Board to extend the time-limits. 

As already stated, if the approach set out in the “guideline” was the approach intended by the legislature, then the WSIA would have been drafted accordingly.  The “six month” deadline was not a suggestion of the legislature, but, a directive of the legislature, one to be administered in a manner consistent with the merits and justice provisions of the WSIA.  It is for that reason that some discretionary provisions were included. 

The Board does not have the discretionary authority to, with the issuance of a guideline, to override legislative instructions.

Concluding comments

The preamble set out in the internal WSIB memorandum announcing the guideline change, by referring to concerns expressed by the injured worker community clearly establishes the political content of the guideline.  By issuing this guideline in this fashion, the Board is legislating, not interpreting. 

Beyond the immediate issue of time-limits, in the larger context of the exercise of the Board’s discretionary authority and of the Board’s commitment to consult, this approach is troubling.  In any and all instances where a policy change of the WSIB will affect rights or obligations, it remains my firm view that the Board is obligated to consult.  The Board is free to choose the most appropriate method of consultation – but – it must consult.  This principle, long in coming, was once foreign to the Ontario WSI system.  A managing mindset that was not openly amendable to consultation or openness set in motion an unparalleled public demand for change.   After an extensive and revitalizing period of extraordinary reform, this principle gained root, and not too long ago, was steadfastly adhered to with a brisk conviction.  

By choosing not to consult in cases that affect the rights and obligations of persons governed by the WSIA, the system becomes less fair, and gradually, increment by increment, acquires long discarded attributes.  Maintaining fairness requires an ongoing vigilance.  To paraphrase a well known proverb, the road to injustice is paved with good intentions. 

Two things must be done.  On the specific issue of time limits, the WSIB Board of Directors should exercise its statutory obligations and recommend that the Government consider statutory reform.  Secondly, the WSIB must take immediate steps to curtail any practices which allow for the rights and obligations of stakeholders to be altered without first hearing from those stakeholders.  Otherwise, one small step may take us one large leap backwards. 
 
* Les Liversidge, L.A. Liversidge Barrister & Solicitor. 

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¹ Hudson N. Janisch, “The Choice of Decision Making Method: Adjudication, Policies and Rulemaking”, Administrative Law, at 327.
² John Mark Keyes, “Power Tools: The Form and Function of Legal Instruments for Government Action”, Canadian Journal of Administrative Law and Practice 10 C.J.A.L.P. 133 at 151.
³ Law Reform Commission of Canada, “Administrative Law - Independent Administrative Agencies” (Minister of Supply and Services, Ottawa) at 98.

 

A review of recent court decisions from across the country that may be of interest to workers’ compensation practitioners

Michael Zacks*

• Alberta (Workers' Compensation Board) v. Alberta (Workers' Compensation Appeals Commission), [2004] A.J. No.  918  

WCB sought judicial review of an Appeals Commission decision awarding injured worker entitlement for a modified vehicle.  In dismissing the WCB’s application the Alberta Court of Queen’s Bench confirmed the applicable standard of review of the Alberta Appeal Commission’s decision was patent unreasonableness.  More interestingly, the WCB sought judicial review on the ground that the Appeals Commission failed to provide it an opportunity to make oral submissions.  The Court held that the WCB’s failure to advance its claim before the Commission is a bar to relief.  The WCB was aware of the hearing and of its right to appear, and chose not to do so, thereby waiving its right to appear and make submissions.

• Boyle Estate v. Nova Scotia (Workers' Compensation Appeals Tribunal), [2004] N.S.J. No.  255, 2004 NSCA 88

Nova Scotia WCB appealed a Workers' Compensation Appeals Tribunal (WCAT) order to pay interest.  The WCB denied the worker’s claim for a heart attack at work. On appeal, the WCAT decided that compensation was appropriate and included interest.  The WCB applied for judicial review arguing that the WCAT lacked jurisdiction to award interest.

The Court held that the appropriate standard of review was correctness, and that on an appropriate reading of the Act, and the lack of policy or regulation allowing for payment of interest, the WCAT lacked the discretion to order interest payments that had not been specified by the Act.

• Canada Post Corp. v. Nova Scotia (Workers' Compensation Appeals Tribunal), [2004] N.S.J. No.  242

Nova Scotia Court of Appeal quashed a WCAT decision allowing a claim for benefits based on "gradual onset stress" caused by harassment in the workplace.  The Court held WCAT failed to apply the correct principles of evidence in determining whether the claimant's psychological condition arose "out of and in the course of his employment" within the meaning of s. 4(1)(a) of the federal Government Employees' Compensation Act.  The Court held WCAT gave excessive weight to the medical reports and failed to determine this issue by reviewing all of the relevant evidence put before it, not simply by acceptance of medical reports filed with the Tribunal.  The WCAT also erred by dismissing as irrelevant evidence, which both as a matter of law and logic is relevant to the question of causation.

• Fowler v. Workers' Compensation Board (N.S.), [2004] N.S.J. No.  271

A worker injured in a motor vehicle accident elected to receive workers' compensation benefits from the Workers' Compensation Board (N.S.) rather than commence a civil action against the driver of the other vehicle.  The Board exercised its right of subrogation and commenced an action for damages.  The damages recovered on settlement exceeded the amount of compensation paid to the worker until the time of settlement.  The Nova Scotia WCB deducted $22,540 as an administrative fee.  On appeal to the WCAT the Appeals Tribunal held that the Board did not have authority to withhold that amount from the worker.  The Board appealed. The Court concluded that as the issue under appeal was a question of law the Tribunal was not entitled to any degree of deference on this question and the appropriate standard of review was correctness. 

The Court of Appeal allowed the appeal concluding that the Nova Scotia Act allowed the WCB to retain a portion of the excess amount it received from the worker's third party claim to apply to its internal operating costs of collecting such amounts.

• Lowe v. Lowe, [2004] O.J. No.  5178

This family law case was an Application to determine if benefits received from the Workplace Safety & Insurance Board are property as defined in section 4(1) of the Family Law Act, and if so, are they excluded from the spouses net family property by s. 4(2) of the Family Law Act.  The husband was receiving s. 147(4) supplementary benefits under the pre-1997 Act.  The Court held that these benefits were not damages for personal injury but compensation for loss of earnings, and were therefore property under s. 4(1) of the Family Law Act, and not excluded under s. 4(2).  

• Nabors Canada v. Alberta (Workers' Compensation Appeals Commission), 2004 ABQB 856

Employer appealed a decision of the Alberta WCB Appeals Commission that its worker was in the course of employment at the time of an accident.  After completing his shift, the worker left his remote work site.  He agreed to give a ride to co-workers, and agreed to carry materials for his employer. The employer argued the workers were not in the course of employment when they left the worksite en route to their homes.  On the way home there was an accident, and one worker was killed.  The WCB held the worker was not in the course of his employment.  On appeal, the Appeals Commission held the worker was in the course of employment at the time of the accident as he was performing a work-related errand by virtue of his transporting the materials. 

The Court reviewed the Alberta legislation and held the standard of review was reasonableness simpliciter.  The Court reviewed the facts and applicable WCB policies, and held the Commission’s decision was reasonable, and dismissed the appeal.

• Re O'Donnell, [2004] Y.J. No.  76

The worker applied for judicial review of Yukon WCB appeal tribunal decision to disclose the worker’s entire claim file to the employer.  After a review of the relevant legislation and case law, the Court applied the reasonableness simpliciter standard and concluded the tribunal’s decision was unreasonable in that it applied the wrong test for disclosure by balancing the worker’s privacy rights.  The test is not privacy, but relevance.

* Michael Zacks is General Counsel of the Office of the Employer Adviser.

Lukasz Petrykowski*

Introduction

This article provides an overview of the legal, policy and business considerations as they relate to the treatment of independent operators under the Workplace Safety and Insurance Act.

Legislation

The Workplace Safety and Insurance Act, 1997 (hereinafter “the Act”) defines an "independent operator" as a person who carries on an industry set out in Schedule 1 or Schedule 2 of the Act and who does not employ any workers for that purpose.¹  Reciprocally, the Act defines a "worker" as a person who has entered into or is employed under a contract of service, or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise.²  These definitions form a starting point for the Workplace Safety and Insurance Board (hereinafter “the Board”) as it relates to the ‘status’ determinations.

These determinations gravitate around the axis of the Board’s core jurisdiction.³  This proposition was bolstered in Wolverine Forest Products Ltd. v. Ontario (Workers' Compensation Appeals Tribunal) when the Divisional Court held that the question of deciding whether particular workers are ‘independent contractors’⁴  or workers under the Act lies at the heart of the functions performed by the Board.⁵ 

‘Contract of’ versus ‘Contract for’ services

What is seminally determinative in distinguishing between workers and independent operators is the correlative distinction between ‘contract of’ and ‘contract for’ services. According to the relevant Board Operational Policy Document,⁶ a ‘contract of service’ or employer-employee relationship, is one where a worker agrees to work for an employer (payer), on a full- or part-time basis, in return for wages or a salary. The employer has the right to control what work is performed, where, when, and how the work is to be performed. Reciprocally, a ‘contract for service’, or a business relationship, is one where a person agrees to perform specific work in return for payment. The employer does not necessarily control the manner in which the work is done, or the times and places the work is performed.⁷

Consequently, workers who work under a ‘contract of service’ are automatically insured and entitled to benefits if injured at work. In addition, their employers must pay premiums to the Board. Independent operators, however, are those who work under a ‘contract for service’ and are neither automatically insured nor entitled to benefits unless they voluntarily elect to be considered ‘workers’. They can do so by applying to the Board for their own account and optional insurance.⁸ 

The category of ‘independent operators’ should be distinguished from ‘dependent contractors’. The former is recognized in the eyes of the workers’ compensation scheme of Ontario while the latter is not. ‘Dependent contractors’ are especially recognized, however, in the labour relations context.⁹ 

The Gateway to Benefits

The need to distinguish between independent operators and workers is not unique to workers’ compensation law. In Joey’s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission) the New Brunswick Court of Appeal noted that “…commentators agree that the task of determining whether or not a particular working relationship constitutes employment is of central importance in Canadian law. This is because the classification issue is the gateway to numerous statutory benefits unavailable to those labeled independent contractors…”¹⁰

Benefits associated with being classified as a ‘worker’ include protections sourced in both common law and statute. The latter includes legislation in the realms of federal and provincial minimum employment standards, human rights and occupational health and safety. Other benefits can be derived from a worker’s association with the Canada Pension Plan (CPP) or the Employment Insurance (EI) Fund. Benefits can even include the ability for an individual to pursue a civil remedy against an employer who allegedly commits a tort.¹¹ Tax treatment under the Income Tax Act, however, is usually recognized as an exclusive advantage for ‘independent operators’.¹²

Business Considerations

The existence of these benefits explains why many businesses attempt to restructure their relationship with personnel so as to attract the ilk of ‘independent operator’ rather than ‘worker’. In doing so, businesses often gain a competitive financial benefit in circumnavigating the legally-entrenched benefits that would have been mandated if an individual was deemed as a ‘worker’ for the purposes of the Act. Where independent operators are involved, businesses generally need not expend resources nor concern themselves about deductions and remittance as relating to CPP, EI, income tax and Board premiums. Structuring of this sort generally sails with the winds of the prevailing business climate.

This should not, however, absolve an employer or independent operator from sustaining healthy and safe workplace environments and practices. The prevention and reduction of workplace injuries and occupational diseases is a hallowed goal irrespective of the nuance of independent operator status determinations. It would be prudent to acknowledge that both parties, in lieu of such a determination, still retain responsibilities concerning workplace safety.¹³

Another prudent observation is that the Board retains the legal power and mandate to deem an employer responsible for the payment of insurance premiums to the Board in a situation where the employer’s independent operator has sub-contracted work. If the independent operator fails to register with the Board as an employer to the sub-contractors, the Board may impose liability upon the original contractor for any remittance that should have been paid by the independent operator.¹⁴ To avoid such a scenario, it is sensible for an employer to obtain a ‘clearance certificate’ from an independent operator as proof that they are both registered with the Board and are paying premiums for the sub-contractors they may employ.

To increase business efficacy, employers should also ask potential independent operators for a status determination from the Board at the beginning of the working relationship. The employer should obtain documentation that substantiates the nature of this relationship. The employer should also ensure that proper, written contracts are normatively employed in the course of all dealings with independent operators. Furthermore, the employer should not treat independent operators as deserving of less attention or respect than normal employees as it relates to their workplace safety. All of which protects against unexpected liability, increases the transparency of the working relationships and begets the progeny of safe and healthy workplaces.

Independent Operators and Workers before the Workplace Safety and Insurance Appeals Tribunal

This being stated, the foundation of this discussion is built upon the determination of whether an individual’s status is that of an independent operator or a worker for the purposes of the Act. The New Brunswick Court of Appeal notes, “[t]he most significant non-statutory development that has occurred in the past two decades is the willingness of tribunals and courts to go outside the parameters of the common law framework by looking at the policy goals of the legislation that differentiates between employees and independent contractors.”¹⁵  This has indeed been the case at the Workplace Safety and Insurance Appeals Tribunal (hereinafter “the Tribunal”).

According to the Act, the Tribunal is mandated to apply relevant Board policy with respect to the subject-matter of an appeal when making its decision.¹⁶  The relevant and applicable policy for disentangling whether an individual is an independent operator or a worker for the purposes of the Act is Board Operational Policy Document 12-02-01.¹⁷  The ‘test’ employed therein has been titled the ‘organizational test’. The test was adopted as of January 1, 1992 but made retroactive to October 1, 1990.¹⁸  The organizational test recognizes features of control, ownership of tools/equipment, chance of profit/risk of loss, and whether the person is part of the employer's organization, or operating their own separate business.

In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., the Supreme Court of Canada noted¹⁹  that although there is no universal test to determine whether a person is an employee or an independent contractor they agree that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations Ltd. v. Minister of Social Security.²⁰ The Court also noted that what must always occur is a search for the total relationship of the parties.²¹

Numerous Tribunal decisions have relied upon Market Investigations, supra, especially in their reliance on the statement of principle regarding the distinction between ‘contract of’ and ‘contract for’ services.²²  Nonetheless, the Tribunal has recently noted:

“whether the Tribunal’s view that one must examine the ‘reality’ of the situation or the Supreme Court of Canada’s suggestion that one must look to the ‘total relationship of the parties’, it is clear, in my view, that in determining how to properly characterize an employment relationship, one must consider more than how the parties have described that relationship on paper. It may be that the written description does not correspond with the business reality.”²³

This functional approach appears to be a balancing act between the common law and the Tribunal’s mandate to hear and decide all matters within its jurisdiction pursuant to applicable policy and the ‘merits and justice’ provision.²⁴ In Blue Line Taxi Co. v. Deek, the Divisional Court noted that the Tribunal cited the requirement to apply Board policies and specifically applied both Policy #01-02-03²⁵  (Workers and Independent Operators) and the criteria in the "organizational test" found within that policy.²⁶  The Court further found that the "business reality test" also applied by the Tribunal was essentially the same as Policy #01-02-03.²⁷  This case stands for the proposition that a reviewing court will not interfere with a Tribunal’s decision when the Tribunal contemporaneously considers a policy-based organizational test with the ‘business reality’ in existence between an individual and an employer.

Corporations as Independent Operators 

Special considerations apply when the individual seeking a status determination as an independent operator also happens to be incorporated. According to applicable policy, the Board does not automatically consider incorporation, on its own, as a sole factor in determining whether a person is an independent operator.²⁸  The Board looks at whether the person operates a business or not, rather than just the incorporated structure of the operation.²⁹

Incorporation in itself is not determinative of whether a corporation is deemed to be an independent operator for the purposes of the Act. This being conceded, the Tribunal has acknowledged that a corporation’s legal entity will not be cast aside lightly. In this vein, runs the successful proposition that the Tribunal will only ‘pierce the corporate veil’ only after full legal process in which the evidence is taken and considered.³⁰ Similarly, in the absence of proof that actions of incorporated contractors were a fraud upon the Act, or constituted other similar wrongdoing the Tribunal has refused to lift the corporate veil.³¹

This is not to say, however, that the Tribunal will fetter its responsibility to follow the polestar of the ‘merits and justice’ provision.³² The Tribunal has held that the real merits and justice of a situation required that a corporate veil be pierced and that the facts behind the incorporation be examined to determine the true nature of the relationship between the worker and employer.³³  In doing so, the Tribunal has found under particular circumstances that an incorporated contractor was a ‘worker’ for the purposes of the Act.

Conclusion

This paper has attempted to highlight some of the more noteworthy and sanguine considerations relating to the legal, policy and business realities affecting the treatment of independent operators in the workers’ compensation scheme in the province of Ontario. It is likely helpful to employers, independent operators and legal advocates in understanding the nexus between status determinations and the practical concerns flowing from them.

* Lukasz Petrykowski, B.Sc., LL.B., is an articling student in the Tribunal Counsel Office of the Workplace Safety and Insurance Appeal Tribunal. The views expressed in this article are solely those of the author and not of the Tribunal.  All WSIAT decisions referred to can be found on the Tribunal’s website at www.wsiat.ca.

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¹  Workplace Safety and Insurance Act, 1997, S.O. 1997, CHAPTER 16, Schedule A. Section 2(1).
²  Ibid. Section 2(1), the definition of worker also encompasses students, members of a municipal volunteer fire/ambulances services, auxiliary members of a police force, persons deemed to be workers by the Act or the Education Act and persons involved in specific exceptional circumstances.
³ Ibid. Section 118(1) states that the Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act, except where the Act provides otherwise.
⁴  The terms ‘independent operators’ and ‘independent contractors’ are generally interchangeable, especially as it relates to jurisprudential commentary.
⁵  (1993), 64 O.A.C. 228 at para. 2 (cited to QL).
⁶  Document No.12-02-01 entitled “Workers and Independent Operators” which applies to all decisions made on or after December 1, 2001.
⁷  Ibid.
⁸  Supra note 1. Section 12(1) states that upon application, the Board may declare an independent operator to be deemed as a worker to whom the insurance plan applies. See also Board Operational Policy Document No.12-03-02 entitled “Optional Insurance” which applies to all decisions made on or after January 1, 1998.
⁹  Section 1(1) of the Labour Relations Act, 1995 S.O. 1995, CHAPTER 1 Schedule A., defines ‘dependent contractors’. For a helpful commentary regarding the distinction between independent and dependent contractors in the labour relations context see generally: Pell Insulation Ltd., [2004] O.L.R.B. Rep 129, Ian Dejordan c.o.b. IDM Refinishing, [2003] O.L.R.B. Rep. 1041, Nighthawk Timber, [1998] O.L.R.B. Rep 269, and Huntsville District Memorial Hospital, [1998] O.L.R.B. Rep 801.
¹⁰  [2001] N.B.J. No. 222 at para. 40 (cited to QL), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 425.
¹¹  See generally the discussion of the common law doctrine of vicarious liability in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001] 2 S.C.R. 983 at para. 33 (cited to QL): The most common relationship that attracts vicarious liability is that between employer and employee, formerly master and servant.
¹²  ‘Workers’ are generally taxed on a higher scale than ‘independent operators’ who are running their own business. Workers, unlike independent operators, are denied the opportunity to claim business-related expenses for the purposes of tax treatment.
¹³  This includes compliance with the safety provisions found in both the general Occupational Health and Safety Act and Regulations and the specific health and safety policy/protocol in existence at an employer’s site of operations. 
¹⁴  Supra note 1 at section 141.
¹⁵  Supra note 10 at para. 55.
¹⁶  Supra note 1 at section 126(1).
¹⁷  Supra note 6.
¹⁸  For a précis of the historical development of the applicable ‘tests’ since 1953 see Tribunal Decision No.1287/97 (August 10, 2000) at paras. 12-28.
¹⁹  Supra note 11 at para. 47.   
²⁰  [1968] 3 All E.R. 732 (Q.B.D.).
²¹  Supra note 11 at para. 46.  
²²  See Tribunal Decision Nos. 860/88, 940/88, 522/91, 422/93, 395/94, 564/96, 893/98, 2801/01, 1146/02, 257/03, 271/03 and 846/04.
²³  Tribunal Decision No. 197/04 (February 18, 2004) at para. 34.
²⁴  Supra note 1 at sections 123, 124 and 126.
²⁵  Policy #01-02-03 was a predecessor policy to the current Policy #12-02-01. Minimal differences exist between the two, especially substantively.
²⁶  [2002] O.J. No. 2036 at para. 11 (cited to QL).
²⁷  Ibid.
²⁸  Supra note 6.
²⁹  Ibid.
³⁰  Tribunal Decision No. 657/93 (August 12, 1995) at p.10-11.
³¹  Ibid. at p.12.
³²  Supra note 1. Section 124(1) states that the Tribunal shall make its decision based upon the merits and justice of a case and is not bound by legal precedent.
³³  Tribunal Decision No. 1201/03 (June 27, 2003) at para. 29.
 

Suzanne M. Dajczak*

The first line of a January 13th, 2005 Toronto Star article leaves the impression that damages were awarded by the Tribunal against the Provincial government, in a case involving a former group home counselor.  While we all know that this is impossible the case is noteworthy from a different perspective.
 
Decision 1386/03 examines the question of whether the worker’s Hepatitis C is the result of exposures at the workplace.  What is of interest is that the worker was not infected as a result of a needle stick or percutaneous injuries.  His duties involved cleaning up after residents, some of whom were diagnosed with Hepatitis B. The clean up included vomit and feces.  He was also subjected to biting and scratching and there was one documented exposure to blood on the worker’s skin.  According to the independent medical consultant, Dr. Sweeney, “these were situations which involve increased risk of contracting HVC”.  Dr. Sweeney further stated that “working with a group of individuals who had previously acquired Hepatitis B suggests he is at some risk of contracting Hepatitis C.”
 
The Tribunal indicated that “in cases where it is impossible to know with certainty whether an exposure is actually the cause of a worker’s illness the Panel must weigh the different possible causes of the worker’s condition and decide what is more probable than not”. They noted “that an extremely high standard of virtual scientific certainty is not required before resolving these issues. It is not essential that the medical or scientific experts opine firmly in favour to the work-related
causes”.
 
The legal test is, as with all causation issues, on the balance of probabilities. The Panel answered the question of whether the work exposure was a significant contributing factor in the worker’s Hepatitis C.  In arriving at their conclusion they indicated that “an inference may, in certain cases, support such a conclusion” but “a causation theory must have some evidence to support it:  it cannot be speculative”.
 
The Panel relied on the medical evidence and concluded that the worker’s work with institutionalized people created a risk of exposure.  They considered the exposure to Hepatitis B, the overlapping risk factors between Hepatitis B and C, the “personal and intimate” service provided to the residents and the temporal timelines. The Panel having weighed the evidence considered it to be at least equal in weight.  They indicate in the decision that they have followed Snell v. Farrell and McGhee v. National Coal Board, and “adopted a ‘robust and pragmatic approach’ to the evidence and in exercising their common sense.”  
 
This case provides a good analysis of the evidence and its application to the legal test. It will prove valuable to injured workers where the events and medical evidence would lead one to believe there is a relationship but the causal relationship is not conclusive.

* Suzanne Dajczak is a practitioner in Windsor, Ontario.

Leo J. Dillon*

Over the past several years there have been tremendous developments in voice recognition software.  These developments have proceeded hand in hand with comparable developments in hardware, particularly in the accessibility of hardware sufficiently robust to handle labour intensive applications such as voice recognition.  In the result, voice-recognition software has become far more accurate and easy to use at the very same time that the cost of a suitable hardware platform has become affordable for the average user. In short, satisfactory voice-recognition has become very cost efficient. 

Despite the many advantages of voice recognition software, the technology remains very much underutilized within the legal profession.  Several AROs at the WSIB use the technology regularly, but the buck seems to stop there.  Most practitioners I have spoken with know about the software in very general terms, and a few have given it a very cursory try, without a lot of success, and have given up.  The situation is astounding when one considers the efficiency of accurate voice recognition in the hands of a busy practitioner.  We are essentially writers by trade, and one would think that practitioners would be beating a path to the vendors of technology that makes one of the most tedious aspects of their work more palatable.

WHAT IS "VOICE-RECOGNITION" SOFTWARE?

Simply put, voice recognition software is an application process by which a personal computer, desktop or laptop, is made capable of recognizing the oral input of a speaker and of translating that input into written output.  The technology underlying this process is exceedingly complex, but as in the case of many other complex technological processes which literally surround us (such as CD players, televisions, cell phones), the complexity is generally of little or no interest to the user.  We flip a switch and the lights come on, and for most purposes that magical act is more than enough information.  We do not need to know how the nuclear reactor produces power to appreciate having electric lights at night.  The user is typically more interested in the input and output phases of a process, and as long as these behave in a satisfactory manner, the technological intricacies lying between them remain largely part of the background.

That being said, at least a very basic understanding of the technology is important in order to understand how to get the most out of a voice-recognition software package.

Computers, regardless of how complex they appear, are very simple machines.  It follows that they do not process human speech in the same way that human beings do.  It also follows that the way they "learn" to recognize speech is quite different from that of a human being.  Most people why try voice recognition for a brief period and then give up on it are basically approaching the process with expectations that are far too high, and which neglect the overriding simplicity of the machine.

At the heart of a voice recognition software package is something that is referred to as a "speech recognition engine".  This is the black box into which human speech (the input) is transmitted and which translates that input into written speech (the output).  Although voice-recognition has come a long way in the past few years, it is by no means perfect.  The generic version, "straight out of the box", will tend to be fairly inaccurate.  What it consists of is a general language model and a vocabulary, usually quite large, and usually expandable by the user.

Straight out of the box, the generic language model and vocabulary bears little or no relationship to the specific voice and vocal characteristics of the user.  Given the vast range of human voices, further complicated by idiosyncratic accents and pronunciations, it is understandable that the generic iteration of the engine will not be particularly well fitted to any individual voice.  It is by definition and design a generic model, suited to voices in general, but not specifically.  In order to become truly useful, the software has to be "trained" to adapt its general language model and vocabulary to the nuances of a particular speaker.  This presents us with the challenge and the strength of the technology.  The challenge lies in the process of adapting the generic model to the specifics of the user, and the strength lies in the fact that the generic model is extremely adaptable through proper "training."

TRAINING

As indicated above, I have spoken with many people who have attempted to use voice recognition software only to give up the process when the software did not perform at a high level of recognition on first use.  This is a case of commencing the process with unrealistic expectations that cannot possibly be met by a generic speech engine.  You cannot reasonably blame a word processing program for writing bad letters, and we take it for granted in that case that the output is entirely dependent on the input.  Voice recognition software is really no different, with the exception that it has to be trained to perform at an acceptable level.  It is a tool, and as with any tool, it works better with practice.  It is extremely important to recognize these inherent limitations and to approach voice-recognition as a complex process that is going to require a significant period of training.

That is not to say that contemporary voice-recognition programs will perform abysmally "right out-of-the-box".  Whereas that might have been the case several years ago, the more recent programs will provide a fair degree of accurate recognition at the outset.  The accuracy rate, however, continues to be relatively low until the program has been adequately "trained", whereupon the very high accuracy rates promised in advertising become genuinely realistic.

Training is the process by which the software package begins to "learn" your specific voice and to adapt its generic engine to your own particular and idiosyncratic pattern of speech.  The term "learn" is, of course, inaccurate since a machine does not "learn" in anything even approaching the sense by which a human learns, but the term is frequently used just the same, primarily for the lack of a better term. 

There are four different, but interrelated, aspects of training.  First, the general training which occurs when you start to use the program, which typically involves reading a passage or passages to allow the program to become familiar, in a very general sense, with the nuances of your voice.  Second, there is the more specific ongoing training of the software through the process of correcting errors.  Third, there is a specific process of making the program familiar with your style of writing by having it analyze a variety of examples stored on your computer in the form of documents you have already written.  Fourth, there is a process for adding specific words and phrases on an ad hoc basis.  Each of these processes contributes to adapting the engine from its generic form to become more closely attuned to interpreting your speech and transforming it into written text.

General Training

The general training which occurs when you first start to use the program is important, but only as a jumping off point.  Generally speaking, one has to get used to and develop an effective and efficient means of dictating for the purposes of voice-recognition and this does not usually come naturally.  Most people will have a tendency to speak to the computer in a stilted, artificial manner that is not in fact characteristic of their normal speaking voice.  This is largely counterproductive, but is likely to plague any new user at the outset.  Speaking to a machine seems absurd at first, and is a natural reaction we all have to the process.  Over time the stilted patterns should lessen with greater familiarity with the process of voice-dictation.  The activity becomes part of your normal routine and begins to feel a little less pathological. 

Consequently, it is useful to engage in another session of a general training after you have been using the program for several months and have become more comfortable with the general process of dictating for voice-recognition purposes.  This second general training session will likely be much more productive in terms of enhancing accuracy.  You will be more relaxed and much less self-conscious, and this will likely result in a more natural flow of speech as you read the text.

Speech recognition software works more effectively when people speak naturally and in full phrases and sentences.  It works much less accurately, if one attempts to dictate in single words.  The latter tends to be true because it is more difficult to accurately apprehend a single word in the absence of a context.  For example, "I scream" and "ice cream" sound virtually indistinguishable in the absence of a context which will suggest which of the two forms is accurate.  An incredible amount of our language can only be interpreted correctly by context, so it is expecting a little too much of a software package to abstract the correct usage in the total absence of a context, and this is specifically where the importance of fluent dictation lies.  It provides an ongoing context which the program can use to statistically predict the words in relationship with one another, thereby enhancing accuracy.  Giving up before this point is reached is quite common.  Hanging in there a while longer will bring results.

Ongoing Training Through Correction On-the-Fly

The ongoing process of training the speech recognition software is predominately reliant upon the user correcting errors made by the program.  Usually there will be specific means of making corrections that will signify to the program that the correction is one which is important to voice-recognition.  If you correct in any other means than those identified by the program as giving significance to the correction, then changes will not be made in the speech-recognition engine, meaning that the program will not be learning your voice during such corrections.  Paying close attention to the proper means of making corrections, and then sticking religiously to this process while using the program will result in a process of providing the speech recognition engine with ongoing feedback and will hasten its adaptation to your specific voice.  In other words, the more appropriate corrections that are made, the greater the specific training.  This should result in very significant and noticeable gains in accuracy over the short-term, tapering off after a few months, as the program more closely attunes itself to your voice.

The ongoing training process sounds tedious, but is not.  It takes a conscious effort on the part of the user for a relatively brief period of time until the process of making corrections becomes virtually second nature.  In that respect it is not much different from training oneself to use a time tracking program or a calendar program.  Using something like Amicus Attorney does not come naturally, but in fact takes a lot of effort at the beginning.  It soon becomes second nature to enter the details of every bit of work that you are doing on a file, and before long you have a database that allows you to quickly and conveniently check the status of every file in your office without leaving your desk.  The same is true of training voice recognition software.  Making the effort to turn making corrections in the proper manner a habit is very quickly paid off with fairly dramatic increases in accuracy over the first few months of use.

Normally, the process of training will take approximately three to six months to attain a very acceptable level of accuracy, provided that the software is used frequently and corrections made appropriately.  The modest investment of time pays off tremendously when the program is up and running efficiently.

Training Through Document Review

Having the program work its way through many sample documents consisting of letters, e-mail, and other written documents already stored on your computer is also a very important aspect of general training.  The software will analyze all of documents in the Folders you direct it to and will gather important data about your writing style.  It will make calculations of words and expressions that you use frequently, as well as a general concordance of which words are normally found in the company of which other words.  This is extremely valuable information in interpreting your dictation.  As indicated above, a very large part of a linguistic discrimination is based upon context, and providing your document directories to the program in effect provides a wealth of information specifically regarding context.

Training Through Ad Hoc Addition of Vocabulary

Finally, most speech recognition software packages contain some process for adding words and phrases, acronyms, surnames, and a variety of other particular information relating to your practice.  Frequently, the best means of training the software with respect to this kind of data is to individually train the program to recognize the term or expression when you first encounter it in dictation.  Generally speaking, the manner in which this is accomplished requires typing the word, phrase, or acronym in an input box provided by the program followed by your pronunciation.  The word, phrase or acronym is then added to your vocabulary and should be recognized appropriately on the next usage.

To fully utilize this very useful feature it is essential to select a software package that allows the user to add significant amounts of new vocabulary.  The process is very easy to use, and if you are using the program regularly, within a few weeks the most common specialized terms of the trade will have been encountered and added.

REAPING THE BENEFITS

In the long run, the benefits of having fully trained and significantly accurate voice recognition capabilities far outweigh the very minor inconvenience necessitated by properly training the software to work with your voice.  Regardless of how fast you are able to type, the fact remains that in all likelihood you are able to dictate at a much faster pace.  Consequently, the work will get out much more quickly and you will be able to function in a generally more inefficient manner.

Furthermore, most contemporary voice recognition software packages allow you to use voice dictation in virtually any Windows application that accepts text input.  This includes word processing, e-mail, spreadsheets, time tracking software, and virtually any other text based program that you use on a regular basis.  This means that the program can easily work with all of your existing precedents and templates without modification.  The only difference, and this is worth the cost of the program in itself, is that you use your voice instead of your hands to input text.

Further still, most contemporary voice recognition software packages also allow you to navigate within Windows, within Windows programs and within a Web browser entirely by means of voice commands.  This takes some getting used to, but is a fairly attractive proposition for many users.  Not only can you dictate a letter by voice, but you can also send it to the printer or fax it entirely by voice commands.

HARDWARE REQUIREMENTS

Because voice recognition is a fairly intensive computer application, one should follow the rule that in this particular case bigger is indeed better.  As a general rule, hardware requirements for any software package have to be read properly.  "Minimum requirements" generally refers to a hardware configuration that will barely leave the software operational, and will generally result in significantly less than satisfactory performance.  Outside the world of software marketing, we would refer to this as "Barely functional requirements".  "Recommended requirements" are those of requirements which we would generally understand (outside the world of software manufacturing) as "minimum requirements" for a fully operational program.  For really efficient operation of such a resource intensive program, it is better to exceed the recommended requirements if this is at all feasible.  The most important hardware resources will be the speed and class of the CPU and the amount of onboard memory.  A Pentium 4 is generally far more efficient than a Pentium III and will operate nearly twice as fast at comparable clock speeds.  The software will function far better on a Pentium 4.  Likewise, having lots of RAM will vastly decrease the necessity of large "swap files" which use much slower hard drive speeds in place of memory.  The most powerful combination of CPU, clock speed, and RAM available and within your budget is the optimal target.

Since the program will be processing sound, it goes without saying that a reasonable sound card (at least 16-bit, but 24-bit is better) and a good quality, error correcting microphone are pre-requisites to satisfactory results.  Most contemporary computer systems provide the sound capability, whether on the motherboard or through a card located in a PCI slot.  Most voice recognition software packages come with an approved error correcting microphone included in the package.  

Given the very competitive pricing in computer hardware that has been present over the past several years, the hardware requirements for a fully functional speech recognition system is very easily met at affordable prices.

CONCLUSION

The computerized transformation of vocal input into written text has really come of age.  The best of the current programs are reasonably accurate even in their generic form, and are almost infinitely pliable through the process of training.  Getting the software up and running is very easily understood and well documented.  Provided that a little care is taken to form work habits appropriate to the technology, levels of accuracy, very near those advertised by the manufacturers, are easily within the grasp of a user.

The efficiency of being able to produce large quantities of written output simply by speaking into a microphone cannot possibly be underestimated.  For a profession such as ours, which is largely text driven, voice recognition provides a very important and reliable tool for the busy practitioner.  It is amazingly easy to use, will operate on most modern computer systems, and it is very cost efficient.  I have been using voice recognition for several years and I can no longer imagine practicing without this capability.  Most of the ARO's who use voice recognition in producing their decisions would most assuredly agree with this conclusion.  I would strongly encourage any practitioner who has not yet made a foray into the world of voice recognition to consider doing so sooner as opposed to later.  You will soon thank yourself for making the decision.

* Leo J. Dillon, Leo J. Dillon Professional Corporation, Barristers and Solicitors. The author notes that this article was composed using voice-recognition software.

WSI Act Law Reform: The Word from the Street and Strategies from the Back Room

Date: Monday, April 11, 2005
Time: 5:45 p.m.

Advanced Workers' Compensation:
New Directions and Best Practices in Return to Work
 
Date: Wednesday, May 11, 2005 
Time: 8:45 a.m. to 5:30 p.m.

Chair: Michael Zacks
Ministry of Labour (416) 314-8735
michael.zacks@mol.gov.on.ca

Past Chair: Jack B. Siegel
Blaney McMurtry LLP (416) 593-2958
jsiegel@blaney.com

Vice-Chair: Michael B. Johnston
Workplace Safety & Insurance Board-Special Investigations Br
(416) 344-5580
mike_johnston@wsib.on.ca

Secretary (Sections): Alexander W. Farquhar
Ministry of Labour (Ontario) (416) 326-9495
alec.farquhar@mol.gov.on.ca

Newsletter Editor: Daniel Wong
Hicks Morley Hamilton Stewart Storie LLP (416) 864-7226
dfw@hicksmorley.com

AGR Liaison: Les Liversidge
Barrister & Solicitor (905) 477-2039
lal@laliversidge.com

AGR Liaison: David Wilken
Industrial Accident Victims' Group of Ontario (416) 924-6477
wilkend@lao.on.ca

Technology Liaison: Leo J. Dillon
Leo J. Dillon Professional Corporation (416) 653-3819
leo@leodillon.ca

Member-At-Large: Susan Ann Kelly Adams
Workplace Safety and Insurance (416) 314-8851
susan.adams@wst.gov.on.ca

Member-At-Large: Robert A. Boswell
Craig Boswell McDermot (705) 734-2911
rab@cbmlaw.ca

Member-At-Large: Joseph K. Morrison
Goodmans LLP (416) 597-4203
jmorrison@goodmans.ca

Member-At-Large: Ann Somerville
Workplace Safety & Insurance Appeals Tribunal (416) 314-8845
ann.somerville@wst.gov.on.ca

Member-At-Large: Caroline G. Ursulak
Ogilvy Renault (416) 216-4000
cursulak@ogilvyrenault.com

Member-At-Large: David Whitten
Rubin Thomlinson LLP (416) 847-1814
david@rt-law.ca

Staff Liaison: Janet Green
Ontario Bar Association (416) 869-1047 x312
jgreen@oba.org