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.

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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 members 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.

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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

Introducing “Just Compensation”

I’m Antony Singleton, and this is my semi-professional, semi-personal blog about workers’ compensation.  Thanks for visiting–I hope you’ll find something useful and/or helpful here, whether you’re an injured worker or a worker’s representative.

I’m a staff lawyer at IAVGO, a legal clinic funded by Legal Aid Ontario to advise and represent low income and vulnerable injured workers. Previously, I worked at the Office of the Worker Adviser, and before that, for five years at Green & Chercover (a union-side labour law firm now known as Ursel Phillips Fellows Hopkinson).

On November 2, 2015, I’ll be opening my own law office, and my practice will focus on helping workers in Ontario with their WSIB claims and appeals, and their related legal issues (such as human rights and employment law claims).

In the meantime, I’ll set down in this blog some of my thoughts and observations on workers’ compensation law and practice in Ontario and beyond.  My first substantive post is coming soon…