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2012-2013 Benefits Policy Review: Pre-Existing Conditions

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2012-2013 Benefits Policy Review: Pre-Existing Conditions 2012-2013 Benefits Policy Review Pre-existing Conditions 1. Introduction The Workplace Safety and Insurance Board (WSIB) is responsible for providing benefits to workers who have a work-related injury or disease. Workers who are injured “by accident arising out of and in the course of their employment” or are impaired by “an occupational disease that occurs due to the nature of” their employment are entitled to compensation under the Workplace Safety and Insurance Act, 1997 (WSIA)1. Prior to the introduction of workers‟ compensation legislation, employees who were injured at work were required to sue their employer to receive compensation. Due to the difficulties this presented, Ontario, followed by other Canadian jurisdictions, replaced the tort system for workplace injuries with a no-fault insurance scheme. The release of the Meredith Report2 led to the establishment of Ontario‟s compensation system in 1914, resulting in an historic compromise whereby workers would receive guaranteed benefits under a no-fault system that was paid for by employers who in return were protected against lawsuits. 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. During the course of the recent Benefits Policy Review, led by Independent Chair, Jim Thomas, the challenges associated with “work-relatedness” and adjudicating claims involving pre-existing conditions became a focus of stakeholder submissions. As a result, although outside of the consultation's initial scope, Mr. Thomas addressed this issue at length in his Final Report3. In particular, Thomas recommended that the WSIB develop a new policy on pre-existing conditions to fill a policy gap that he found exists in Ontario. Unlike all other Canadian jurisdictions, the WSIB does not, at present, have a specific policy that assists decision-makers when working with claims that involve pre- existing conditions. The WSIB has accepted the recommendation of Mr. Thomas to develop a new pre-existing conditions policy that provides guidance to decision makers and participants in the system on how to draw the work- related/non-work-related line4. 1 WSIA, s.13 and s.15 2 Ontario. Commission on Laws Relating to the Liability of Employers to Make Compensation to their Employees for Injuries received in the course of their employment which are in force in other countries. (1913). Final report on laws relating to the liability of employers, by the Hon. Sir William Ralph Meredith. Toronto: Queens‟ Printer. 3 Thomas, Jim. (2013). WSIB Benefits Policy Review Consultation Process Report to the President and CEO of the WSIB. Toronto, ON: WSIB 4 President and CEO of WSIB, June 2013 Page | 1 A draft policy has been developed and is now available for consultation. The draft is based on the input the WSIB has received from stakeholders, what we have learned from our jurisdictional counterparts, and a review of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) jurisprudence. It is also aligned with the WSIB‟s strategic priority to administer benefits with integrity and fairness. 2. Impetus for Change Jim Thomas Final Report As noted above, the issue of pre-existing conditions became a dominant theme throughout the Benefits Policy Consultations. Several stakeholders, in their written and oral submissions, provided advice to the WSIB on how to deal with this challenging issue. Thomas summarized the adjudicative challenges associated with pre-existing conditions as follows: The Workers’ Compensation system is expected to compensate for impairments that result from workplace accidents. Pre-existing conditions and pre-existing impairments are normally viewed as conditions and impairments that do not have their origins in the workplace but instead are the result of non-work factors such as degeneration of prior injuries. When workplace and non- workplace factors are present, questions arise as to how to adjudicate them in ways that are fair to the worker and preserve the integrity of the system. WSIB should not be compensating for situations that are the result of non-workplace conditions or impairments. But the line between the medical consequences of the workplace accident and the non-workplace conditions or impairments is far from clear. [Pg 11] While Thomas recognized that every jurisdiction in Canada is grappling with how to adjudicate claims where pre-existing conditions are present, he noted that Ontario is the only jurisdiction that does not have a policy that specifically addresses this topic. To fill this policy gap, Thomas recommended the WSIB develop a policy addressing pre-existing conditions, and Thomas remarked that nothing else in his Final Report would have a more positive impact on adjudicative certainty and clarity than the development of such a policy. According to Thomas, a worker‟s initial entitlement award should not be limited due to pre-existing conditions, indicating that it is important to distinguish between initial entitlement and ongoing entitlement when considering the impact of pre-existing conditions. In reliance on the “thin skull doctrine”, which will be discussed in more detail in the following chapter, Thomas noted that initial entitlement should generally not be limited because the worker suffers from a pre-existing condition. In addition, Thomas argued that benefits should generally not be limited if a pre-existing condition prolongs a worker‟s recovery from a work-related injury/disease. Mr. Thomas‟ findings align with the WSIB‟s practices. In initial entitlement decisions, the WSIB generally takes workers as they present themselves and provides benefits as appropriate. However, following Page | 2 initial entitlement decisions, the WSIB makes numerous decisions regarding entitlement throughout the life of a claim – which is referred to as “ongoing entitlement”. In terms of ongoing entitlement, Thomas found that the mere presence of a pre-existing condition is not sufficient grounds to end benefits, however, he commented that in some cases there may be “circumstances where the pre-existing condition “swamps” the workplace factor, making it no longer a significant one in comparison to the non- workplace one.” Thomas addresses this issue by proposing that the varying degrees of pre-existing conditions should be reflected in the policy, and outlining that there will be cases where the degree is so severe that the workplace factor no longer is significant. Thomas did not recommend criteria for decision makers to take into account when considering the impact of a pre-existing condition. In developing a policy, he noted this is the responsibility of the WSIB. However, he did state that the WSIB should review the significant contribution test typically used by the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Regardless of the methodology or criteria chosen, he recommended that the policy should highlight the importance of a clinical/medical opinion when answering the work-relatedness question. Stakeholders Generally, worker and employer stakeholders have both indicated support for the development of policy guidelines that outline where and how the work-relatedness line is drawn. In the course of the consultation, submissions from employer and worker stakeholders tended to diverge in terms of their specific suggestions regarding how this should be done. Where there are multiple causes of an impairment, the “predominant cause” test is generally supported by employer stakeholders, and requires that the workplace accident be the most prevalent or main cause. At the other end of the continuum, the “significant contribution” test only requires that the workplace accident be one of several substantial causes of the impairment and is the test most often supported by worker stakeholders. The primary concern of many worker stakeholders is to ensure benefits are not inappropriately denied due to a pre-existing condition, advising that entitlement to benefits should generally not be affected in circumstances where the pre-existing condition was neither symptomatic nor affecting the worker‟s ability to work prior to the workplace accident. They suggest that a broad range of evidence (e.g. clinical, ability to do pre-injury work, impact on lifestyle) should be taken into account when making this determination. The primary concern among many employer stakeholders, on the other hand, is to ensure benefits are provided to workers for the work-related injury/disease, and not for other non-work-related pre-existing conditions. They suggest that the criteria of whether the worker was symptomatic prior to the workplace injury/disease, and how the worker‟s ability to work was affected by the pre-existing condition prior to the injury/disease, are not broad enough. While not discounting the consideration of different types of evidence, they generally suggest that clinical evidence should take primacy. 3. Determining Work-relatedness in Ontario Workers are eligible for WSIB benefits if they sustain a personal injury by accident “arising out of” and “in the course of” employment, based on section 13(1) of the WSIA. The “arising out of” component of section 13(1) requires that there be a causal connection between the work and the injury (i.e., the injury Page | 3 must be work-related). Section 13(2) creates a presumption that an injury/disease has arisen out of the employment if it occurs in the course of employment, and vice versa,
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