The 2017 Budget included some unexpected good news for injured workers: the government is planning to remove the statutory bar to chronic mental stress claims, effective January 1, 2018. Does this mean an end to discrimination against injured workers with chronic mental stress? Well, maybe…
Hidden treasure: the Ontario Workplace Tribunals Library
Recently I came across a flyer advertising the OWTL’s services, and it reminded me how few injured workers I meet know about the library—even though it’s a tremendous resource for self-represented workers and professional advocates alike. So I’ve taken it upon myself to do a bit of unsolicited promotional work for the library in this blog.
There are two things that make the OWTL a treasure.
Chronic mental stress: the Minister speaks!
In previous posts, I’ve talked about the ongoing suffering caused by the government’s failure to respond to several WSIAT decisions stating that the exclusion of chronic mental stress from workers’ compensation in Ontario is unconstitutional. I’ve also speculated about the government’s motives for neither seeking judicial review of the decisions nor amending the legislation to fix the problem.
I decided that, rather than speculating, it would be fairer to the government and more helpful for injured workers if I simply asked Kevin Flynn, the Minister of Labour, about the issue.
In this post I provide readers a copy of our correspondence, and my commentary on it. Continue reading
PTSD update: good news and very bad news
In late February, the Ontario government announced that it is going to change the Workplace Safety and Insurance Act “to create a presumption that PTSD diagnosed in first responders is work-related.” The draft legislation hasn’t been released yet, but the government promises that it will “allow faster access to WSIB benefits and timely treatment, ultimately supporting positive recovery outcomes.”
This is, without doubt, good news for emergency response workers who develop PTSD, as it removes their cases from the WSIA’s exclusionary mental stress provisions, and treats their illness as an bona fide occupational disease.
However, the proposed amendments are carefully restricted to PTSD, so that emergency response workers who develop any other disabling mental illness (e.g. depression) will be left out in the cold. Worse still, the announcement implies that the government has no intention of providing any relief to other kinds of workers who develop a mental illness as a result of their work, who continue to be barred from claiming WSIB benefits. Continue reading
Who’s paying down the WSIB’s unfunded liability?
[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.
PTSD: How police, fire and EMS workers get the worst deal
Manitoba is changing its workers’ compensation law so that when an emergency response worker develops PTSD, the illness is presumed to be an occupational disease, and the worker is compensated accordingly. But in Ontario, the opposite happens: the law actually excludes claims for PTSD caused by the kinds of traumatic events they might “expect” to experience during their careers.
In my view, this betrays the fundamental purpose of workers’ compensation law. In February, the Legislature will likely schedule the second reading of Bill 2, a private member’s Bill that would set matters right. This blog describes the current sorry situation, and will hopefully encourage readers of all political stripes to support NDP MPP Cheri DiNovo’s bill.
In limbo: injured workers with chronic mental stress
The Catholic Church closed the netherworld of limbo in 2007, but last year the Wynne government re-opened it for people who develop a mental illness as a result of their work.
Following two successful Charter challenges at the WSIAT, the government has conceded that the law which currently bars such people from making WSIB claims is unconstitutional, and yet it has failed to amend the law in any way. As a result, the WSIB and WSIAT must continue to apply the law to deny claims, unless it is challenged anew in each and every case.
But how many injured workers can afford to engage in constitutional litigation? And how can it be fair to require them to do so, when the government knows that the statutory bar is unlawful? Continue reading
Fairness: it’s coming in 2018! But what about fixing the damage done before then?
In a heartening announcement, the government says it will amend Ontario’s workers’ compensation law to “ensur[e] fairness for injured workers” by implementing “full Consumer Price Index indexation of benefits for partially-disabled injured workers,” beginning January 1, 2018.
This is good news: it’ll remove a source of great unfairness in the current system, which has for many years eroded the real value of many permanently disabled workers’ incomes.
But, given the government’s acknowledgement that full CPI indexing is necessary to ensure “fairness,” why wait another two years for its implementation? And why are no steps being taken to address the damage already done? The WSIB’s own economic projections indicate the system can afford it. Continue reading
Can you “constructively resign” in Ontario? Only if you’re an injured worker.
Recently, the WSIAT introduced into workers’ compensation law an employment-law concept—“constructive resignation”—that the courts have unequivocally stated is not applicable in Ontario. In this post, I critique the specific decision in which this occurred (Decision no. 340/15, 2015 ONWSIAT 1102 (CanLII))—and I comment on two general problems with the Tribunal’s decision-making process highlighted by the case. Continue reading
It’s time for the Ombudsman to investigate the WSIAT
It now takes over two years to get an appeal heard by the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The Ombudsman tells us, in his most recent annual report, that he’s considering a systemic investigation of the problem. There has already been some action behind the scenes:
Senior Ombudsman staff met with WSIAT’s chair, representatives of the Ministry of Labour, and other government representatives to remind them of the human impact of these delays and urge them to work together to find a solution. The Ombudsman is monitoring the situation and the Ministry’s response to it, to assess whether a systemic investigation is warranted.
In my view, a systemic investigation is warranted, and immediately too. As I’ll explain using the WSIAT’s own data, the current situation—in which the level of delay goes far beyond what is tolerable in any reasonable administrative justice system—is the result of a backlog of appeals that has been steadily increasing for the last four years and, despite the WSIAT’s rather extraordinary public pleas for help (in 2013, 2014 and 2015), there has been no effective response from the government.
Nor is there any reason to believe an effective response will be forthcoming: even as things currently stand, there is little prospect of improvement, and when the impact of the ten-year limit on appointments comes into effect next year, the situation will grow far, far worse. Continue reading