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Following a two-year policy review process, the Ontario Workplace Safety and Insurance Board (“WSIB”) has recently published several new and revised policies, all of which became effective as of November 1, 2014.
The review initiative came in response to challenges associated with determinations of “work-relatedness” and with the adjudication of claims involving pre-existing conditions; and indeed those issues were explicitly raised by several stakeholders during the first stage of the policy review.
The new and revised policies – eight (8) in total – address several critical claims-related issues, including: pre-existing conditions, permanent impairments, aggravation basis, recurrences, and work disruptions. All of the policies are available here.
1. Pre-Existing Conditions
Prior to the introduction of this new policy, the WSIB did not have a policy on pre-existing conditions. Significantly, pre-existing conditions have frequently been critical factors in the adjudication of employee claims and employer requests for cost relief through the Second Injury Enhancement Fund (“SIEF”) (i.e. the removal of accident costs from the employer’s Accident Cost Statement based on the fact that a pre-existing condition has (i) caused or contributed to the compensable accident, and/or (ii) prolonged or enhanced the recovery period).
The new policy explicitly permits entitlement for work-related injuries and/or diseases regardless of whether a non-work-related pre-existing condition may exist. In that regard, the policy is consistent with the well-established “thin skull” and “crumbling skull” doctrines (which are essentially based on the proposition that the WSIB will “take a worker as they find him or her” for the purposes of adjudicating a claim for a present injury) that have historically been applied by the Board.
That said, the policy then directs decision-makers to consider the impact of pre-existing conditions on the worker’s ongoing impairment. According to the policy, “[i]f the pre-existing condition is not impacting the worker’s impairment, there is no effect on the worker’s benefits”; but, “if the pre-existing condition is impacting the worker’s impairment, benefits will generally continue as long as the work-related injury/disease continues to significantly contribute to the worker’s impairment.”
To assist workplace parties in applying the new policy, the text of the policy includes a definition of “pre-existing condition”, and commentary on “determining work-relatedness of ongoing impairment”.
2. Permanent Impairments
The WSIB has consolidated four previous policies regarding the effect of permanent impairments on worker benefits entitlements (i.e. namely “Determining Maximum Medical Recovery (MMR)”, “Determining the Degree of Permanent Impairment”, “Effect of a Pre-existing Impairment” and “Redeterminations”) into three new policies, entitled “Determining Permanent Impairment”, “Determining Degree of Permanent Impairment”, and “NEL Redeterminations”.
Those new policies provide workplace parties with further clarity and guidance in:
• identifying when MMR has been reached;
• determining the extent of ongoing impairment beyond the MMR period;
• assessing the work-relatedness of any ongoing impairment;
• accounting for the impact of pre-existing impairments when calculating non-economic loss (“NEL”) benefits; and
• requesting redetermination of NEL benefits.
3. Aggravation Basis
The WSIB “Aggravation Basis” policy has been revised to clarify the circumstances under which a workers’ compensation claim may be allowed on an “aggravation basis”—i.e. on the basis that a new work-related injury has aggravated a previous injury or pre-existing condition(s).
In particular, the new policy modifies the definition of “aggravation” to clarify that the effect of a minor work-related injury/disease on a pre-accident impairment must be temporary, and must lead to an actual loss of earnings, rather than a “loss of earning capacity” (which essentially meant a potential loss of earnings, calculated as “the difference between the worker’s net average earnings before the work-related injury/illness, and the net average earnings the WSIB determines the worker is capable of earning after the work-related injury”).
Furthermore, the application of the Aggravation Basis policy has been broadened to contemplate situations were “a minor work-related accident aggravates a pre-accident impairment”, in contrast to the previous policy which required aggravation of a “significant pre-accident impairment”.
The WSIB has also revised the “Recurrences” policy, so as to (a) focus on the importance of clinical compatibility between the original injury/disease and the recurrence that is the subject of the worker’s fresh claim for benefits, and (b) reduce the emphasis on “continuity” (i.e. continuing symptoms between the original injury/disease and the recurrence) in the decision-making process. In that regard, the new policy states that “The decision-maker may also consider whether a worker has experienced continuing symptoms since the original injury/disease. Generally, continuing symptoms are an indicator of a causal link, though they are not required to establish a causal link.”
The new policy also introduces the concept of a “significant deterioration”, which “refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in clinical findings.” Under the new policy, “a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that does not result from a significant new incident/exposure, and is clinically compatible with the original injury/disease.” While the previous policy recognized that “a recurrence may result from an insignificant new accident, or may arise when there is no new accident”, it did not explicitly establish a threshold for benefit entitlement in situations where there was no new accident.
5. Work Disruptions
Finally, the WSIB has consolidated five previous policies – “Entitlement Following Work Disruptions: General”, “Entitlement Following Work Disruptions: Short-term and Long-term Layoffs”, “Entitlement Following Work Disruptions: Permanent Layoffs”, “Entitlement Following Work Disruption: Seasonal Layoffs”, and “Entitlement Following Work Disruptions: Strikes and Lockouts” – into two new policies, entitled “Entitlement Following Temporary Work Disruptions” and “Entitlement Following Permanent Work Disruptions”.
The most significant change associated with the consolidation of these policies is the elimination of the “employability” concept – i.e. whereas under the previous policies, workers were eligible for benefits if they were unable to work due to a work disruption AND their “employability” was affected by the work-related impairment/disability and associated clinical restrictions, the new policy provides that a worker shall be eligible for benefits if (a) “the worker would seek new employment in the general labour market to attempt to restore his/her loss of earnings during the temporary work disruption (i.e., if he/she was not injured)”, and (b) “the work-related injury/disease impacts the workers ability to earn income through new employment.”
The new policies also provide further clarity for workplace parties in determining a worker’s suitable occupation (or “SO”), which is relevant when evaluating entitlement to additional loss of earnings benefits and/or work reintegration (or “WR”) benefits.
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Inasmuch as these policies have only recently become effective, their impact on workplace parties and on the adjudicative process remains to be seen; however, the WSIB’s intention is that “the final policies will ensure clarity, transparency and fairness – and give decision-makers the tools to make more consistent decisions”. We will provide further updates in that regard in the coming months.
About the Author: Toronto Employment Lawyer Ryan D. Campbell assists both employers and employees in all facets of employment law, workers’ compensation law, and occupational health and safety law. Ryan also has experience assisting Ontario employers in complying with the Accessibility for Ontarians with Disabilities Act, and advising on the use of social media and technology in the workplace.