WSIB to review pre-existing condition claim denials

TORONTO—Some 4,500 injured workers in Ontario who had their benefits slashed due to a controversial Workplace Safety and Insurance Board (WSIB) policy implemented in 2012 that cut their benefits due to “pre-existing conditions,” even if those conditions had no impact on their disability, will have their cases reviewed.

The WSIB policy reversal was reported in the Toronto Star, but although it appears to be in the works, those who regularly challenge the WSIB before the appeals board remain only cautiously optimistic.

“The devil is always in the details,” noted Manitoulin Legal Clinic Executive Director Mike Shain, who, although he has read the reports, has not seen a policy statement from the WSIB spelling out those details. “Let’s just call it a step in the right direction, but from what I understand it is not a full restoration of what was in place before the policy was changed.”

Under the previous policy, a worker would not be penalized if a pre-existing condition’s impact was asymmetrical, that is didn’t have any noticeable impact on a worker’s performance of his duties. Put simply, if you didn’t even know you had a condition, you were golden.

“By the time anybody has reached the age of 20 their discs are degenerating. You have degenerative disk disease even though it doesn’t have any impact on your job performance,” explained Mr. Shain. “Any middle-aged worker and older has some degree of osteoarthritis, but it doesn’t effect our ability to perform.” But it is a pre-existing condition.

“I think time will reveal whether this is a real improvement, but it does seem to be a step in the right direction,” reiterated Mr. Shain.

The move to decrease or disallow benefits due to “pre-existing medical conditions” has been challenged as illegal, and is certainly a departure from the founding tenets of the workers’ compensation system in Canada—often referred to as the “thin-skull principle,” which says workers cannot be discriminated against because of a pre-existing condition that caused no symptoms before a workplace accident.

“The whole thing went against the very foundation of principles laid down by Justice Meredith when the workmen’s compensation program was established in the province,” said Mr. Shain. “To me WSIB has lost its moral compass.”

Originally, Ontario’s workplace insurance program was a social compact between workers and employers in the province. “In exchange for workers giving up their right to sue in the courts they were supposed to be adequately supported in return,” he said. “Instead, the system has changed course with the prime objective of limiting costs to employers so that they will not leave the jurisdiction. I get that. But it is the injured worker who is the one paying the price of that policy.”

For many of the people Mr. Shain represents the pre-existing condition policy had a substantial negative impact. “Yes, for sure,” he said. “A lot of the people I have represented in front of the board have been determined to have a pre-existing condition.”

A cynical view of the policy reversal may be gleaned through the lens of how the policy was performing in the courts. A Toronto Star investigation determined that up to 80 percent of those cases where benefits were slashed were later overturned on appeal by the WSIB’s independent review board.

Although the WSIB will no longer cut benefits for people who had what it calls “non-measurable, asymptomatic pre-existing conditions” and a review of the 4,500 claims is expected to be completed by mid-2018 and could see an increase in the lump sum payments they received as a result of their permanent injury, it isn’t a complete win.

“People are still going to lose benefits for something that did not affect them as workers,” noted Mr. Shain. “The review will only result in changes to workers’ benefits if the board decides their pre-existing condition is non-measurable.”

At this point in the story, Mr. Shain said that it was difficult to assess what the impact of the WSIB change of heart will, be but that it does appear to be positive. “Like I said, a step forward, but not travelling all the way back to what Justice Meredith intended when the social contract between workers and employers was first set up. We still have a long way to go to get back to there.”