OBA’s Workers’ Compensation Section offers an extraordinary opportunity to keep up with the latest developments in the field through the new WCB listserv, which was launched in June 2005. The discussion is open to all members of the WCB Section. You simply have to first subscribe to the group by going to http://oba.org/en/main/listserv_en/. Once you have subscribed, you will receive a confirming e-mail within 24 hours with key e-mail addresses and further tips.

Posting a message to the Workers' Compensation list serve ensures that your message reaches every Section member who has subscribed to the list, whether worker-side, employer-side or neutral. As a subscriber you will automatically receive all such postings.

The potential benefits of this vehicle for communication are limited only by the imagination and dedication of subscribers. Heard a rumour? Post it and see whether it is verified as more than just a rumour. Heard of a new policy or practice amendment, then share it. Heard of a new decision of interest from the Manitoba courts on a judicial review that might be of interest to practitioners, then post a link to it so that your community of practitioners can share it. Have a question regarding procedural or substantive matters, then send out a general request for assistance to be returned to you via direct email. Have a case comment you are itching to discuss, then you have an audience. Instead of just helping, or being helped by, a few practitioners you already know, become part of a community of practitioners that spans the entire Province of Ontario, and all related areas of practice. The list can be as useful as we collectively want it to be.

Some Sample WCB Listserv Messages from Summer 2005

Sent: Monday, June 13, 2005 3:55 PM
Subject: [oba_wcb] CPP Offsets

In case anyone hasn't seen it as yet, the Board has changed the manner in which will offset CPP payments with respect to worker's receiving partial FELs or partial LOEs. The details are available at
http://www.wsib.on.ca/wsib/wsibsite.nsf/public/PolicyConsultationsCPPPolicy.

Sent: Monday, June 20, 2005 10:10 AM
Subject: [oba_wcb] Customer Satisfaction

Results of the 2004 customer satisfaction survey propared by Ipsos-Reid were made available last week:
http://www.wsib.on.ca/wsib/wsibsite.nsf/public/CustomerSatisfactionSurvey04

Sent: Monday, June 27, 2005 1:22 PM
Subject: [oba_wcb] New Update on Stakeholder Information Sessions Released

The new update is available at:
http://www.wsib.on.ca/wsib/wsibsite.nsf/public/EmployerStakeholderInfoSessions

Sent: Wednesday, June 29, 2005 2:25 PM
Subject: [oba_wcb] New MOL.

Steve Peters is taking over from Bentley as new MOL. For anyone interested, there's a backgrounder from Wikapedia to be found at:
http://en.wikipedia.org/wiki/Steve_Peters

Sent: Thursday, June 30, 2005 11:09 AM
Subject: [oba_wcb] WSIB ODAP Report and Protocol Approved

WSIB board of directors has given approval to the ODAP Chair's final Report on occupational disease adjudication. The Report is a critical document that deals with recommended legal and evidentiary principles in occupational disease adjudication. The WSIB BoD has authorized the Board's administration to "operationalize" the Report's recommendations. In anticipation of the BoD's approval, the WSIB has prepared a Protocol for this purpose. The Board's website states:

The WSIB is moving forward with implementation of the Chair's final report and protocol. Occupational disease adjudicators and appeals resolution officers are being trained in applying the principles in the report in their daily work. Policy development recommended in the Chair's final report is also under way, as well as the updating of occupational disease reviews commissioned by the former Occupational Disease Panel

WSIB Protocol

The WSIB has prepared a protocol in response to the Chair's final report. The protocol describes how the WSIB proposes to implement the principles and concepts developed in the Chair's final report in its day-to-day business.

The Protocol outlines the fundamental legal principles used in adjudicating occupational disease claims, but in my view will of necessity have broader implication to all entitlement adjudication. These principles include causation, standard of proof, burden of proof, benefit of doubt, and merits and justice.

The Protocol also goes into great detail on the WSIB's occupational disease adjudication process, which is invaluable for anyone involved in an occupational disease case.

Sent: Wednesday, July 27, 2005 11:53 AM
Subject: [oba_wcb] Employer Premium Increases

The WSIB has proposed a 3% premium increase for 2006. This will bring the average premium rate for Schedule 1 employers $2.26 for every $100 of insurable earnings, up from $2.19 in 2005. The impact on individual rate groups can be found on the WSIB website at http://www.wsib.on.ca/wsib/wsibsite.nsf/public/employersprelimrates2006

The increase for some industrial sectors is more significant. Fro example the average rate increase for the construction industry is 5.3%, and for the manufacturing sector it is 4.6%. Of the 157 rate groups, 31 -- or 20% -- will see a reduction in their premium rate. The premium increase is magnified by the fact that the annual maximum insurable earnings ceiling for 2006 is now $69,400, up from $67,700 in 2005, representing an increase of $1,700.

The WSIB after extensive meetings with employer stakeholders rejected the employers' unanimous submission that there be no premium increase for 2006. This would have allowed the unfunded liability to be retired by 2016 instead of the planned 2014 retirement date.

Sent: Thursday, September 08, 2005 5:27 PM
Subject: [oba_wcb] Court of Appeal Decision

The Court of Appeal handed down an interesting decision a few weeks ago.

A paralegal consultant was hired on a contingency basis (20%) by an injured worker to represent her at the WSIB. When her doctor told her she didn't need to hire a representative (probably about the time the Board paid her claim), she terminated the arrangement and refused to pay the consultant.

The consultant sued her successfully in Small Claims Court for $4,800. The worker's appeal to Divisional Court was dismissed.

The Court of Appeal allowed the worker's appeal.

Citing the 1897 Champetry Act and more recent case law, the Court found that there was not adequate protection against paralegals entering into abusive champertous contingency agreements. The Court of Appeal found there is an "absolute prohibition" on paralegal contingency agreements.

The Court stated:

¶ 33 Unless and until paralegals are brought within a regulatory scheme that permits oversight of the terms and conditions of contingency fee arrangements, the benefit/risk analysis favours maintaining the absolute prohibition against contingency fee agreements. We acknowledge that this
conclusion must have some negative effect on the ability of individuals to gain access to justice. Absent contingency fees, some individuals who may have been represented by paralegals under a contingency fee agreement will be unrepresented. The net loss to public access to justice is inevitable,
although the extent of that loss cannot be measured. We are convinced, however, that the appropriate response to this problem lies not in opening the door to unregulated contingency fee arrangements between paralegals and their clients, but in the enactment of long called for and anticipated
legislation recognizing the valuable role of paralegals in the justice system and regulating that role.

The Court did go on to say that the consultant could recover on a quantum meruit basis, and found $1300 was reasonable in the circumstances.

The citation from Quicklaw is:

Koliniotis v. Tri Level Claims Consultants Ltd.

Between
Nicki Koliniotis, appellant (defendant), and
Tri Level Claims Consultants Ltd., respondent
(plaintiff)

[2005] O.J. No. 3381
<http://ql1.quicklaw.com/cgi-bin/QL002?UGET=Q1475381,OJRE>
Docket: C42704

Ontario Court of Appeal
Toronto, Ontario
R.R. McMurtry C.J.O., D.H. Doherty and H.S. LaForme JJ.A.

Heard: May 11, 2005.
Judgment: August 12, 2005.
(43 paras.)