[Author’s note: this post was published in February 2016. For an important update on the UFL, please read my post from September 27, 2018]

Elizabeth Witmer and David Marshall recently wrote an opinion piece in the Financial Post, in which they lauded the reduction in the WSIB’s unfunded liability under their leadership, asserting that it was achieved “all the while maintaining benefits for injured workers.”

Injured workers, and people who work with them, don’t believe that for a second: it’s clear to us that injured workers are effectively paying down the unfunded liability through denials of or reductions to benefits. I wrote a letter to the Financial Post’s editor, which I hoped would be published, but (imagine!) it was not. So here it is, for readers of my blog.

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Dear Mr. Corcoran:

I write to respond to Elizabeth Witmer and David Marshall’s letter of January 21, in which they claim that during their respective tenures as Chair and President/CEO, the WSIB has substantially reduced its unfunded liability (UFL) “all the while maintaining benefits for injured workers.”

There’s no doubt that Witmer and Marshall have overseen a remarkable reduction in the UFL—as they note, on current projections it will be eliminated five years earlier than the legislation requires.

However, their claim that this has been achieved “while maintaining benefits for injured workers” is not one that many injured workers, the health-care providers who care for them, or their advocates, find plausible—and it ought not stand unchallenged in a newspaper of record like the Financial Post.

Rather, from our perspective, the last five years has seen an unprecedented roll-back of benefits paid to injured workers, achieved through a variety of administrative and adjudicative tactics. Quite apart from the devastating effect on individual workers’ lives, the results are showing up as cracks in the system:

• A surge in appeals to the Workplace Safety and Insurance Appeals Tribunal has led to a back-log of over 9,000 cases (more than double the number the Tribunal is designed to cope with) resulting in a delay of over two years for a hearing;

• The provincial agency tasked with representing injured workers in WSIB and WSIAT proceedings, the Office of the Worker Adviser, has become so overwhelmed by its caseload that in April 2015 it instituted a moratorium on taking on any new clients, anywhere in the province;

• Health-care practitioners have become so frustrated by the WSIB consistently ignoring their medical opinions that a group of them took the extraordinary step of holding a press-conference at Queens Park to raise public awareness of the WSIB’s behaviour.

The WSIB’s own statistics show a substantial reduction in the amount of benefits paid out over the last five years, which the WSIB presents as evidence that the “new approach” heralded by Witmer and Marshall has resulted in improved medical outcomes for workers.

However, there is good reason to doubt that the reduction in benefits results from better medical outcomes.  Rather, it is more likely the result of changes to the WSIB’s decision-making practices, which were themselves driven by the pressure to reduce the UFL.

Take for example the case of Non-Economic Loss (NEL) benefits, which are paid to workers whose accident leaves them with a permanent impairment.

The WSIB’s statistics show that the incidence of claims in which it accepts that a worker has a permanent impairment has reduced dramatically in the past five years, from 12.7% of claims to 5.6%. The WSIB’s rating of the severity of the impairments has also decreased significantly: in 2011, the average permanent impairment was rated at 14%; by 2014 it was 9.5%.

Do these reductions in benefits correspond to a reduction in the real incidence and severity of permanent impairments among injured workers? In my view, the explanation is more likely found in the following changes to the WSIB’s practices:

• In 2009, the WSIB began moving away from a system where permanent impairments were assessed by an independent physician, to one where assessments are primarily conducted “in house” by WSIB staff.

• Around the same time, the WSIB adopted a practice of reducing NEL ratings—sometimes to zero—for workers’ pre-existing conditions (i.e. conditions that, although present in medical imaging, were not symptomatic prior to the work injury), even though WSIAT case law holds that this is not authorized by the legislation or the WSIB’s own policies.

• In November 2014 the WSIB issued a new policy that it is using as authority to reduce NEL ratings for pre-existing conditions (the legality of which has yet to be tested at the WSIAT, given the delays there).

Similar tactics have been applied by the WSIB to Health-care and Loss of Earnings benefits, whose overall cost has also been significantly reduced over the last five years. Reducing the UFL may be an important achievement, but we should be under no illusion: it has been substantially paid for by injured workers.

Yours faithfully,
Antony Singleton
Workers’ compensation lawyer.