What’s the purpose of the entitlement presumption? There isn’t one, if we fail to tell the WSIAT about it.

Recently I revisited a WSIAT decision from last December whose interpretation of the “entitlement presumption”—a fundamental principle of workers’ compensation law—caused consternation among worker advocates when it was first released.

It’s a case that’s still worth discussing, not just because of the importance of the “entitlement presumption,” but also because we can draw a broader lesson about advocacy from it. Continue reading

Advertisements

The reward for paying down the WSIB’s unfunded liability? Permanent austerity, if you’re an injured worker.

With great fanfare (including breathless tweets) the WSIB announced it has eliminated its unfunded liability, ten years ahead of schedule.

But the fanfare didn’t end there. We also learned who would enjoy the dividend of full funding: employers, who received a massive reduction in premiums: 29.8% on average, amounting to almost $1.5 billion per year.

Our new Minister of Labour celebrated this cut as “just one part of our plan to lower taxes, reduce the regulatory burden, protect and grow jobs, and send a message to the world that Ontario is open for business.” For workers, she had nothing to offer but an anodyne assurance that “workers and their families” can now have “peace of mind” the WSIB will pay them the benefits they’re entitled to under the law.

That the Minister could so openly disregard workers and celebrate giving the entire dividend of full funding to employers is testament to the way employers have captured the narrative about the unfunded liability (UFL). Continue reading

Reminder: the deadline for filing 2014-2017 mental stress claims is July 1, 2018

Recently I blogged about the transition rules for the new mental stress provisions in the Workplace Safety and Insurance Act.

One of the transition rules allows workers who sustained a mental stress injury before January 1, 2018, to file a claim and have it adjudicated by the WSIB under the new mental stress provisions, provided that

  • You have not filed a mental stress claim before, and
  • Your injury occurred on or after April 29, 2014.

The limitation date for filing those claims is almost upon us: the deadline is July 1, 2018. Continue reading

A plain language guide to the mental stress transition rules

[Note: this is a slightly revised version of a paper I presented to the OBA Workers’ Compensation Section’s 2018 annual conference, A New Era in Workplace Safety and Insurance Law.]

In 2017, the Ontario government removed the bar against mental stress claims under the WSIA, replacing it with a new provision ex­press­ly allowing workers to claim benefits for mental stress injuries.

These amendments came into force on January 1, 2018, but they also have a limited retroactive effect. The government enacted a set of transition rules setting out how the WSIB and the WSIAT will deal with the claims and appeals of workers who suffered a mental stress injury before January 1, 2018.

The transition rules are written in dense technical prose. This post is an attempt to untangle them and explain them in plain language. Continue reading

The WSIB’s internal documents on adjudicating mental stress claims

We entered a new era in the compensation of work-related mental disorders on January 1st this year:

After less than five months of the new regime, I still don’t know a great deal about how the WSIB is applying these policies in practice.

To increase my understanding, in April I made a freedom of information request for all of the WSIB’s internal documents giving its decision-makers advice, guidance or direction about adjudicating claims under the new policies.

In May, the WSIB granted my request, and disclosed over 400 pages of documents.

I haven’t had time to go through the material in detail yet. When I do, I’ll  publish a post (or two) analyzing the most important documents.

However, I want to make the documents available immediately to any injured worker or advocate who may be interested in them. Therefore, I’ve bundled them into a .zip file which you can download by clicking this link. (Note: it’s a 19 MB file that downloads automatically.)

Enjoy responsibly!

This blog contains general information and should not be relied on as legal advice in an individual case. If you need advice about a WSIB claim or appeal, please visit the website of my law office, asingletonlaw.ca, and book a consultation.

14243910052_bcf29c57b0_z

IAVGO publishes “Bad Medicine: the WSIB’s transformation of its health care spending”

It’s been my privilege to work with IAVGO Community Legal Clinic as a co-author of a report on how the WSIB has “transformed” its health care spending since 2010. We describe the effect that the WSIB’s transformation has had on the provision of health care benefits to injured workers, by analyzing the WSIB’s own data in the context of the changes the WSIB has made to its business model and the experience of injured workers during that time.

The evidence we present supports the following stark conclusions. Since 2010:

  • There has been a significant cut in prescription drug benefits that affects thousands of injured workers per year.
  • Health care spending has progressively shifted away from services whose sole focus is patient welfare, and into services that are structured to drive down the cost of benefits paid to injured workers.
  • The primary measures used by the WSIB as evidence of improved health outcomes (the reduction in the incidence and severity of permanent impairments) are the result of changes to the WSIB’s adjudication practices. They constitute a cut in benefits themselves, rather than a reflection of improved health care.

If you’re concerned about how the WSIB has been limiting entitlement to drug benefits, or rehabilitation therapy provided by physiotherapists, chiropractors and the like, or the WSIB has told you that you have recovered from your injury when you know you have not, I urge you to read the report. It covers these issues in detail, and a great deal more.

The report is available, for free, on IAVGO’s website. You can download it as a PDF by clicking THIS LINK.

You can also read about the report in an article in the Toronto Star, or listen to an audio clip of an interview about it on AM640’s Morning Show.

The good, the bad and the ugly: the WSIB’s draft chronic mental stress policy

After three years of delay, things are moving quickly on chronic mental stress in Ontario. Two weeks ago, the government proposed changes to the Workplace Safety and Insurance Act that remove the bar to chronic mental stress claims. Last week, the WSIB published a draft policy (PDF) and opened an expedited consultation on it, which closes on July 7, 2017.

It’s vital that injured workers make their voices heard in the consultation. This blog contains a preliminary analysis of the policy, which I’m happy for any injured worker or advocacy group to adopt or adapt (or reject or ignore!) when developing their submissions.

The Background Information (PDF) the WSIB published with the draft policy sets out “three key entitlement criteria for chronic mental stress,” namely “diagnostic requirements,” “injuring process,” and “causation standard.” I’ll go through all three, and then discuss a fourth issue, the lack of transitional provisions. Continue reading