Who’s paying down the WSIB’s unfunded liability?

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.

*****

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.

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2 thoughts on “Who’s paying down the WSIB’s unfunded liability?

  1. Injured Workers and Poverty Survey 2010
    Many Losses, Much Hardship
    The Impact of Work Injury
    FAST FACTS
    • Before injury, 89% were employed full time; after injury 9%
    • Nearly one in five lost their homes after injury
    • Nearly one quarter had moved in with family or friends at some point after their injuries
    • One in five injured workers could no longer afford a car
    • Food bank use rose from 5 to 77 people after work injury
    • 20% reported an overnight hospital stay the last 12 months (most because of the work injury) compared with 7% for the general population of Canadians
    • Over half had not been able to afford medications in the past 12 months
    • 57% of injured workers in the study were unemployed
    For more information: wwwinjuredworkersonline.org

    If I were paying premiums to WSIB in support of programs that were to prevent injured workers from being a burden to society and were to keep them out of poverty. I would feel ripped off by WSIB with these statistics. When John Slinger talks of quicker decisions, he talks of quicker denials that may force injured workers spend to the next decade tied up in WSIB’s appeals process. When WSIB, John Slinger talks of the same number of claims accepted, how many of those claims are actually receiving the full 85% as promised or have they been “deemed” working, their file closed & then counted as a WSIB success story when in reality they are receiving so little with WSIB, their family has fallen onto Welfare since they are still medically unable to work. The human body takes as long as it takes pre-determined recovery date & cutting benefits hurts the most seriously injured workers and older injured workers. Completely ignoring medical reports from psychiatrists & psychologist is discriminatory and inflicts serious harm on seriously injured workers. The truth is in the details, employers are being ripped off but seriously, permanently injured workers are being forced into poverty and to commit suicide as a direct result of WSIB’s new discriminatory and illegal policies that are undermining WSIA. Despite the huge number of WSIB workers on the sunshine list, WSIB has been stashing away billions into savings through claims denials or through seriously & illegally reduced benefits, this has been done on the backs of hundreds of thousands of the most seriously injured workers. The WSIB policy makers are abusing their power of public office by inflicting additional physical, psychological & financial harm on those who they were hired to protect. Criminal.

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