As the number of Ontario’s workers continues to grow, the Workplace Safety and Insurance Board (“WSIB”) heads into 2020 with continued commitment to providing transparent, accessible, and timely services. Along with the WSIB’s prioritization of service improvements, the WSIB 2020 Policy Agenda outlines process items that the WSIB will focus on over the next year.
Completion and Implementation of Rate Framework Modernization
On January 1, 2020, the WSIB’s new Rate Framework model took effect, standardizing business classifications through the North American Industry Classification System (“NAICS”) and creating an open, fair system of setting and adjusting premiums based on a two-step approach.
The NAICS has simplified WSIB classifications from 155 rate groups to 34 classes/subclasses, removing mandatory coverage for some business activities. Cost windows will be fixed at a rolling six-year period to promote predictability in calculating premium rates, per-claim cost limits, and individual-rate deviation. For simplicity, all Ontario non-profit organizations will enjoy a premium “freeze” for the next five years, where premiums will either remain the same or decrease.
The WSIB’s two-step approach involves: (i) establishing average premium rates using each industry class’s risk profiles and fund obligations; and (ii) adjusting rates using individual employers’ claims history and risk profiles as compared to others within their class.
The ability to improve premium rates should incentivize employers to invest in workplace health and safety. Practically, the adage of “an ounce of prevention is worth a pound of cure” should be taken to heart by businesses, with the assistance of their lawyers. Up-to-date policies and procedures are key.
Where the prospect of decreased premium rates might fail to motivate businesses, increased premium rates might do the trick. For employers with poor claims histories, the WSIB will implement accountability programs as a preventative measure. If these employers fail to improve their health and safety records, they can expect to be penalized. Either way, we are bound to see fewer claims involving serious workplace-related injuries and deaths.
Review of Annual Indexing
As a result of legislative changes—specifically Bill 144 and Bill 127—the WSIB published an Annual Indexing policy in 2018, which is set to be reviewed in 2020. Annual indexing aims to protect against inflation by increasing benefits. The policy identifies when annual indexing and applicable periods apply, and outlines factors and methods for indexing.
For example, chronic mental health benefits might be increased to protect from inflation and provide fair compensation. Conversely, businesses will likely seek to have constructive dismissal cases caused by chronic mental health issues adjudicated by the WSIB and the Workplace Safety and Insurance Appeals Tribunal to avoid claims for aggravated and punitive damage.
Policy Revisions Based on the Return-to-Work 2020 Review
The WSIB will continue to review any policy revisions stemming from the Return-to-Work policy in 2020 with the aim of continuing to reintegrate workers in a timely fashion.
Practically, return-to-work periods can be the source of distress for both workers and business. For workers, there is pressure to return to work prematurely, particularly when mental health concerns are involved. For businesses, the need for job accommodation may push employers to provide work that might not provide much value. Disputes will therefore continue to surface from this push-pull; however, more workers will be able to successfully reintegrate with apt policy-based and consultation-based return-to-work plans.
Occupational Aluminum Exposure Study and Occupational Cancer Review
In 2020, the WSIB expects to review the results from the Occupational Cancer Research Centre’s study on the effects of occupational aluminum exposure, as well as Dr. Paul Demers’s Review on Occupational Cancer. As medical disputes remain central in workplace compensation cases, such research will provide insight into the issue of work-relatedness of certain injuries and conditions.
Should studies find a positive correlation between aluminum exposure and injury, this correlation would be a consideration in both policy and adjudicative decision-making. An increase in related claims may also be likely from production and processing industries where disabilities are suspected to be workplace-related.
Medical Cannabis Policy
This year, the WSIB will begin its first review of the scientific and clinical evidence of medical cannabis following the release of its Medical Cannabis policy in 2019. This Operational Policy clarifies compensation criteria for cannabis-related benefits claims, streamlining the previous case-by-case determination process into an accessible decision-making framework.
The Policy notably outlines five designated conditions of which evidence exists of the therapeutic efficacy of medical cannabis. The WSIB may approve more conditions as scientific research progresses.
Currently, the WSIB cautions against using medical cannabis for mood and anxiety disorders, and requires the worker to have already exhausted conventional medical treatments prior to benefit eligibility. While the WSIB will streamline cases that meet Policy criteria and conditions, workers will continue to fight where medical cannabis is considered an unnecessary treatment.
As such, medical cannabis claims fitting into the designated conditions will likely increase and be processed more quickly, whereas those falling outside of the current entitlement criteria (e.g. mental health concerns) will likely result in disputes requiring more medical documentation and worker advocacy.
As more clinical findings support science-based diagnoses, treatment recommendations, and correlations, workers’ compensation policy considerations are updated to reflect same. Workers will continue to struggle where medical documentation, research, and evidence are lacking. However, the WSIB 2020 Policy Agenda provides insight into how the workers’ compensation process will continue to become more accessible, transparent, and predictable for each party involved.
About the Author
Nhi Huynh is an employment and human rights lawyer at Achkar Law. She represents employers and employees in all work-related matters.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.