USWLOCAL 2251
Benefits Policy Consultation
Submission
Prepared by
Andy LaDouceur
4/30/2014
Aggravation Basis, Recurrences, Work Disruptions, Permanent Impairments, and Pre-existing
Conditions
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Thank you for the opportunity to provide input on the Board's Benefits Policy Review. The Board has
proposed a review of the Aggravation Basis Policy, the Recurrences Policy, the Work Disruption
Policies, the Permanent Impairment Policies, and has proposed the introduction of a new policy to
address “Pre-existing Conditions. The revisions to the existing policies under review include a
reference to the proposed new policy for “pre-existing conditions”, and this seems to be the focal point
of the review process.
Pre-existing conditions:
There are a number of issues with the proposed policy for “pre-existing conditions” that have either not
been addressed in the Board's explanatory documents, or was not adequately addressed to explain
further issues that will be raised in this submission. For instance the Board acknowledges that the thin
skull doctrine applies to entitlement decisions under the WSIA, but seems to ignore that compensation
should not be limited in cases where the thin skull doctrine applies. A limitation on entitlement can be
justified where the crumbling skull doctrine applies.
In the proposed new policy it states that, “the pre-existing condition may have been asymptomatic,
symptomatic or deteriorating” at the time of the accident, and gives examples of conditions which
would include (among others) degenerative conditions. A degenerative condition is not the same as a
deteriorating condition; a worker could have degenerative disc disease in their back but that condition
could easily be stable rather than deteriorating. Yet the proposed new policy limits entitlement:
“If the pre-existing condition is degenerative in nature and is impacting the worker's ongoing
level of impairment, WSIB benefits continue until the clinical evidence shows the worker is at the point
he or she would have been at if the work-related injury/disease had not occurred.”
This applies the crumbling skull doctrine to a situation where the thin skull doctrine clearly applies.
The fact that a worker's “pre-existing condition” contributes to the level of impairment, or length of
recovery, does not demonstrate that the crumbling skull doctrine applies. If the “pre-existing
condition” was deteriorating, and would have deteriorated without the intervening accident, then the
crumbling skull doctrine applies. This is the scenario that should be required to justify any limitation to
ongoing benefits.
There is no indication in the history, or record regarding the historic trade-off that resulted in the
introduction of the first worker's compensation Act in Ontario that entitlement under this no-fault
compensation scheme was meant to be more restrictive than that provided at common law. In fact the
Act continues to void certain common law defenses that were historically used as a barrier to
entitlement under section 116 of the WSIA. By eliminating the assumption of risk, the fellow servant
rule, and contributory negligence defenses it seems to me that Ontario's compensation legislation was
designed to be more lenient regarding entitlement than what would be provided under common law.
To propose a policy that would be more restrictive for entitlement than that provided under common
law would be a violation of the intent of the legislation. The approach proposed by the Board involves
apportionment that is not authorized by the WSIA, and is contrary to the principles laid out in Athey v.
Leonati. Applying those principles to compensation would mean that apportionment between
compensable and non-compensable conditions would not be permitted unless they were distinct and
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divisible injuries. The Board's proposed new policy does not address how to differentiate between
divisible and indivisible injuries, and seems to assume that all “pre-existing conditions” are distinct and
divisible injuries.
It is worth noting that there is a well-established principle of administrative law that prohibits policy
from fettering discretion. A strict adherence to any policy would not only fetter discretion, it also
ignores the legislative directive to consider the individual merits and justice of every claim. To apply
the approach proposed in the draft policy for pre-existing conditions is an exercise of fettering
discretion and ignores the statutory obligation to apply sections 119(1) and 119(2) of the WSIA.
The WSIA is remedial legislation, and therefore the rule of liberal interpretation of the Legislation Act
applies. According to the Board, Policy is developed where the Act is ambiguous or silent on an issue
(Policy 11-01-03); but Board policies derive their authority from, and is subject to, the Act as well as
the rule of liberal interpretation. Policy cannot replace the decision-maker's statutory obligation to
consider the individual merits and justice of a case, and to apply the benefit of doubt where the
evidence on an issue is approximately equal in weight.
Any policy that places a threshold on entitlement that is not prescribed by the WSIA is in violation of
the Act. Section 119(1) and 119(2) are all that’s required to grant entitlement, or in the case of section
119(2) decide an issue. Section 13 prescribes how accidents are to be adjudicated, and provides a
presumption for sudden onset injuries under section 13(2). In gradual onset injuries, where there is the
potential for multiple causes, the significant contribution test (which is the same as the material
contribution test) is used to determine whether or not the injury “arose out of and in the course of” the
worker’s employment (WSIAT Decision Nos.72, 915, 432/02).
WSIAT Decision No. 820/95 provides an explanation for adjudicating a claim with more than one
significant contributing factor in paragraph [58] of the Addendum. This decision is for a lung cancer
claim, but the decision-making concepts and the application of the significant contribution test would
apply to other claims. To paraphrase the Panel, competing significant contributing factors are not
graded by their level of importance, nor does one cancel out the other. A meticulous review of all the
evidence is required to determine whether or not the workplace contribution was on a balance of
probabilities “a”, but not necessarily “the” significant contributing factor then entitlement would be in
order. In other words, a significant contributing factor from the workplace need not be the sole,
primary, or even predominant factor in order to grant entitlement. Any inconsistent application of the
significant contribution test does not change the true intent or meaning of it.
In the explanatory note for pre-existing conditions it states, “As set out in legislation, and to preserve
the integrity and fairness of this system, the WSIB must draw a line between compensable work-related
and non-compensable non-work-related injuries and disease.” However the Board has already drawn
these lines, and the proposed new policy for pre-existing conditions is not only unnecessary, it does not
work with existing policies, and it defies the decision-making principles prescribed by the Act. The
Board already has policies that address non-compensable conditions, and provides guidelines regarding
their impact on benefits.
The Act and Policy 11-01-05 define impairment as “a physical or functional abnormality or loss
(including disfigurement which results from an injury and any psychological damage arising from the
abnormality or loss)”. Policy 11-01-15 takes this one step further by providing the Board’s definition
of a “pre-accident impairment” as “a condition, which has produced periods of impairment/illness
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requiring health care and has caused a disruption in employment”. Pre-accident impairment and preexisting impairment should be viewed as synonyms since they both refer to impairments that existed
prior to a workplace injury. “Pre-existing condition is defined as an underlying or asymptomatic
condition which only becomes manifest post-accident” as per Policy 14-05-03, and that policy
addresses the impact of a pre-existing condition on entitlement to benefits as well as providing cost
relief to employers.
Policy 14-05-03 instructs that “When the pre-existing condition is not measurable, but creates a preaccident disability that enhances a residual work-related disability, the worker’s benefit for workrelated disability may be reduced according to the percentage of disability produced by the pre-existing
condition” [emphasis added]. It is clear from the wording of the policy that the pre-existing condition
must create a pre-accident disability (as defined by policy) in order to have an impact on benefits. The
proposed new policy for pre-existing conditions does not comply with this existing policy.
The employer is provided cost relief under Policy 14-05-03 for pre-existing conditions even when there
is no impact on benefits. Workers are compensated at a rate of 85% of net average earnings subject to
the maximum, and this in itself reduces the compensation for wage loss to workers which is part of the
legislation but not necessarily fair. NEL awards are a percentage of a prescribed amount adjusted by an
age factor, which again is part of the legislation but not necessarily fair compensation. A further
reduction of worker’s benefits would not achieve the fairness that the Board states is its goal.
Under the Act, injured persons become entitled to compensation because they were engaged as workers
at the time of injury. Where a worker’s ability to perform their job is not affected by the pre-existing
condition, it would be wrong in principle to reduce their benefits due to a condition that did not affect
their employment. Any reduction on the basis of an asymptomatic pre-existing condition would be a
deviation from the thin skull doctrine, and would substantially reduce the nature of the protection
afforded by the compensation system as compared to the court system which requires that you take the
injured party as you find them.
Applying the thin skull doctrine may not seem fair to employers, but it is supported by the Supreme
Court of Canada and therefore legal. While the Board is not bound by legal precedent, it is not above
the law either. The application of common law principles and Supreme Court decisions has been the
subject of many WSIAT decisions (Nos. 72, 865/92R4, 549/95I2, 1886/07, etc.) finding that such
principles and decisions are applicable to decisions under the WSIA. Therefore the application of the
thin skull doctrine which would provide benefits to workers with pre-existing conditions is legal and
fair.
Employers are able to achieve claim cost reductions through accident prevention and return to work
programs. Whether it’s primary prevention (i.e. recognizing a hazard and eliminating it before an
injury occurs) or secondary prevention (i.e. investigating the cause of an accident and eliminating or
reducing the risk to the lowest possible level), any money spent on job modification will save
employers money claim costs. Effective return to work programs limit or eliminate a worker’s wage
loss, and this in turn reduces claim costs. Policy reducing a worker’s benefit coverage should not be a
method for claim cost savings.
WSIB’s draft policy for pre-existing conditions should be abandoned, as well as any revisions to other
benefits policies that refer to this draft policy, and the Board should continue to use existing policies
that address pre-existing conditions as well as pre-existing impairments.
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Permanent impairments:
Policy 11-01-02 states that “The WSIB’S decisions and practices must be consistent with the provisions
of the Act and the rules of natural justice”. The Act does not have a specific provision regarding
reducing a worker’s NEL award, but does authorize the Board to determine the degree of permanent
impairment (s. 47(1)). It also provides that the determination must be made in accordance with the 3rd
Edition of the AMA Guidelines or prescribed criteria, having regard for health information about the
worker on file with the Board (s. 47(2)). While the Act seems to permit distinguishing a pre-existing
impairment in determining the percentage of impairment due to work-related injury, there is nothing
providing authorization to reduce a NEL award based on an asymptomatic pre-existing condition. A
decision of that nature would not be consistent with the provisions of the Act. We believe that this
further supports our position that the draft policy for pre-existing conditions and any reference to it
should be abandoned.
We support the OFL’s recommendations for the permanent impairment policies.
Aggravation Basis:
In addition to abandoning the reference to the draft policy for pre-existing conditions, we support the
OFL’s position that the once only repair section should be eliminated from policy. However, the
section of the current Aggravation Basis Policy that addresses permanent impairment should remain
part of the policy. A permanent aggravation of a pre-existing condition or even a pre-existing condition
from a workplace injury would qualify as “arising out of and in the course of employment”, and is
therefore a compensable condition. Additionally we support the OFL’s recommendations for this
policy.
Work Disruptions:
We support the OFL’s position of combining these policies, and agree with their rationale as well as
their recommendations. The only thing we have to add is that the pattern of seeking employment
during previous temporary work disruptions should have no bearing on entitlement to loss of earnings
benefits. We realize that the common law principle of the duty to mitigate circumstances is likely the
reason for this addition to draft Policy 15-06-09, but there is more than one way to mitigate your
circumstances during a temporary work disruption. Workers collecting employment insurance benefits,
or electing to take vacation pay during previous temporary work disruptions are just a couple examples
of mitigating wage loss.
Recurrences:
We support the OFL’s recommendations regarding the Recurrences Policy.
Respectfully submitted by USW Local 2251