Some Reflections on Some Recommendations

  • 11 février 2021
  • John Bartolomeo, lawyer and co-director, Workers' Health and Safety Legal Clinic

In May 2019 the Government of Ontario launched an operational review of the Workplace Safety and Insurance Board. Headed by Linda Regner Dykeman and Sean Speer, the purpose of the review was to examine financial oversight, administration, and efficiency at the Workplace Safety and Insurance Board (“the WSIB”).  After inviting submissions and meeting with stakeholders, the results of the review were made public in November 2020.  The Report presents 25 recommendations to the Government. I encourage you to read the report here: Workplace Safety and Insurance Board operational review report | Ontario.ca 

At the time the Report was released, the WSIB appeared to welcome certain recommendations, such as those that relate to the financial health of the organization, and remain silent on others. This article will examine two Recommendations, Recommendations 13 and 14, which relate to the appeals process in the compensation system. To date, the WSIB has not offered its comments on these suggested improvements.

Fixing the Appeals Process within the Workers’ Compensation System

The current internal appeals process at the WSIB is two-fold: First, a written decision, which parties can appeal through filing an Intent to Object (ITO) Form, and then upwards to the Appeals Service Division, which conducts both in-person and written hearings before an Appeals Resolution Officer (ARO). Recommendation 13 of the Report proposes consolidating the two-step process to a single level. 

However, before we can determine whether this would improve the appeals process, we must consider Recommendation 14, which seeks to improve dialogue between the WSIB and the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the final level of appeal within the administrative workers' compensation system. Specifically, Recommendation 14 recommends establishing a Quality Table to, “identify and anticipate trends through data analytics and actual case outputs in order to better inform adjudication guidelines and decision-making.” This would be to prevent similar appeals from constantly being adjudicated, especially in light of the high amount of successful appeals before the WSIAT. The WSIB has had to contend with Tribunal decisions since 1985.  This is not the first time someone has suggested that the WSIB examine its decision-making practices following an established line of decisions from the Tribunal.

As a worker representative, the gut reaction is to reflect on cases where the same argument falls on deaf ears at the WSIB but is only heard and weighed (and sometimes accepted) at the Tribunal.  I feel like this whenever I argue a worker is competitively unemployable.  However, this is not always the case and this is a recommendation with potentially dangerous effects.  On the positive side, I am pointed to the end of the WSIB’s practice of apportioning NEL awards for workers with any pre-existing condition.  Tribunal decisions led in part to a change of approach by the WSIB.  On the negative side, I think of the onerous and high bar set by the WSIB Medical Marijuana policy as compared to the Tribunal’s approach to marijuana entitlement pre-policy.

This circles back to Recommendation 13, a revision to the WSIB internal appeals system.  In reviewing the appeals process, the Report also noted that the Tribunal may need additional resources to cope with the potential increased caseload. 

The question needs to be asked, “Why does it have to be this way?”  A faster appeal system or a “simpler” appeal system only has the goal of increasing the burden on the Tribunal.  A better solution than another “tsunami of appeals” is perhaps learning from the Tribunal and its practices.  I do not think the level of success at the Tribunal is simply a different person looking at an appeal.  If one of the goals of the review and the Report was to address deficiencies in the appeals process, the answer cannot be to push everything to the Tribunal.  Recommendation 13 references the “role of in-person hearings” in the recommended appeals revamp.  The last time the WSIB undertook a “modernisation” of appeals, there was a dramatic drop in the number of in-person hearings.  The Report is silent on the role, if any, the number of in person hearings had on the level of successful Tribunal appeals as compared to the WSIB.  I believe this is a theory worth examining.

From a worker-side perspective, there may be some relief in finally being heard with respect to the number of cases that need to go to the Tribunal.  Vigilance however is required to ensure that any changes do cause more problems.

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