Workplace Safety and Insurance Board Operational Review Report

Workplace Safety and Insurance Board Operational Review Report

Written by: Lou Smargiassi (Senior Litigation Paralegal)

On May 23, 2019, the Ontario Government announced a review of the Workplace Safety and Insurance Board’s (WSIB) Operations. The stakeholder consultation period ended in July 2019, with the ‘Report’ recommendations anticipated by the end of 2019. To our knowledge the nature and extent of the stakeholder feedback was not shared.

The Ministry of Labour (MOL) quietly released the Final Report on November 6, 2020, about ten months after the expected delivery timeframe.

The two expert reviewers appointed by the Ontario Government primarily focused their review on developing recommendations to assist the WSIB leadership team manage, protect and maintain its financial sustainability, and ultimately better serve workers and employers in Ontario.

The ‘Report’ has twenty-five (25) recommendations that can be accessed through this link (https://www.ontario.ca/document/workplace-safety-and-insurance-board-operational-review-report/section-2-opportunities-and-challenges-workplace-safety-and-insurance-board). Many of the 25 recommendations primarily deal with the financial oversight, sustainability of the insurance fund and administrative effectiveness of the current WSIB governance model.

While we encourage our readers to review the entire report, our focus at Watson Labour Law, during these unprecedented times in Ontario, is on the recommendations that may have a greater impact on our constituency. I will highlight those recommendations and provide a brief commentary on behalf of our team.

• ‘Report’ Recommendation #13 The Workplace Safety and Insurance Board and the government should consider consolidating the Workplace Safety and Insurance Board’s multiple layers of appeal into a single appeal function within the WSIB before appeals move to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Moving in this direction would require consideration of the format and design of the new appeals function within the Workplace Safety and Insurance Board, timelines for appeals decisions, human resource issues and possible incremental resources to the WSIAT to address any resulting increases in its appeals caseload.

In my over 35 years of Workers’ Compensation experience in both the public and private sectors, administrative efficiency by consolidating the WSIB’s appeals program does not always serve the best interests of our worker community. The need for review of front- line adverse decisions has never been greater from my vantage point. One only need to consider the Tribunal’s reversal rate of WSIB decisions to appreciate this.

The WSIB has undergone significant changes over recent years to its operating service delivery model including the on-boarding of a large number of new and inexperienced decision-makers. Their decisions have profound consequences on the lives of workers and their families. In my view, the need for consistency and accuracy of WSIB decisions is especially critical at this time as Ontario tackles the health care pandemic.  It appears the importance of focus by the WSIB on claims adjudication has been noted in part by the expert reviewers in recommendation #12:

• ‘Report’ Recommendation #12 The Workplace Safety and Insurance Board should continue to adjust and refine its process for claims adjudication to ensure that claims are being managed by the right people at the right time.

Having the opportunity within the WSIB objection system for multiple reconsiderations of front-line decisions, and ultimately final appeal before moving to the external WSIAT (Tribunal), provides for decision-makers and managers to undertake a more fulsome, thorough and balanced review when existing and/or new evidence is brought forward that has not been considered or properly weighted and applied against relative guiding operational policy(s) in effect at the time of the decision. WSIB policy requires that:

• As an inquiry system (rather than an adversarial system), the WSIB gathers relevant information, weighs evidence, and makes decisions. The WSIB’s decisions and practices must be consistent with the provisions of the Act and the rules of natural justice.

When communicating a decision, the decision-maker communicates the decision either by issuing a form letter or by writing a decision letter.

A decision letter must:

• states the decision
• explains the rationale, including any applicable policies
• outlines the information used to make the decision, and
• advises both parties of their right to object to the decision.

It is not uncommon to find WSIB decisions to be incomplete or lacking in detail at how they arrived at the conclusion.  The rationale used can be brief and does not always explain what information was gathered (as an inquiry system) and how that information was evaluated and weighed against relevant policy in making an adverse decision.

At Watson Labour Law we believe this is a fundamental requirement for proper ‘Claims Adjudication’ to occur to serve the needs and expectations of Watson Labour Law clients and the broader worker community. Not only must claims be managed by the right people at the right time but the right decision must also be made before subjecting workers to lengthy external appeal.

• ‘Report’ Recommendation # 15.The Minister of Labour, Training and Skills Development should work with the Attorney General to ensure that legal representatives (including paralegals) participating in the occupational health and safety system are meeting a high ethical standard and properly serving their clients.

At Watson Labour Law our team of Lawyers, Paralegals and Legal Assistants meet and exceed the Law Society of Ontario’s Rules of Professional Conduct for both lawyers and paralegals. We also adhere to the Code of Conduct for representatives set out by the WSIB and Tribunal. Each member of our team is committed to providing the highest quality legal services to support the needs of our clients at all times.

We look forward to learning more about recommendation #15 from Ontario’s Attorney General, MOL and WSIB.

• ‘Report’ Recommendation # 18 The government should amend the Labour Relations Act to clarify that labour unions must provide representation on behalf of their members in the occupational health and safety system including the Workplace Safety and Insurance Board.

With over 30 years of litigation experience, Watson Labour Law has built an unprecedented reputation in unionized workplaces by representing and engaging our clients around their Collective Agreement needs. Not only as it relates to the Labour Relations Act (LRA), but also the Employment Standards Act, Human Rights Code, Health and Safety Act, and Workplace Safety and Insurance Act, etc.

We appreciate the financial viability of our trade unions is of paramount importance to the economic and social fabric of Ontario. Recommendation #18 appears to be an attempt to continue down the path of chipping away at the discretion and strength of unions by adding another layer of financial accountability where it does not exist today. Currently the jurisprudence has made clear that trade unions are not required to represent members in WSIB matters.

While some unions do provide such representation voluntarily or in specific situations, the proposal that unions be required to do so will have significant financial impact for trade unions (particularly smaller unions or locals). The WSIB and WSIAT process can be lengthy, paper-intensive and costly to navigate. For Unions to be required to assume financial responsibility for all members in all WSIB/WSIAT cases moving forward would result in a profound impact, from our vantage point.

At Watson Labour Law we have the subject matter expertise to deal with these agencies (WSIB/WSIAT) so that should the LRA be amended we can greatly assist to reduce the cost for unions and/or their members to navigate this sometimes complex and overwhelming system. We remain well positioned to adjust as required and to continue in providing quality client services, if the LRA is amended.

In closing it is difficult to predict whether some of the recommendations will ultimately better serve workers in Ontario as stated by the expert reviewers. Clearly this is not the case when it comes to recommendations #13 and #18.  We will continue to follow this closely.