Toronto Star, front-page headline – October 5, 2017

“Tribunal Overturns WSIB Practice of Cutting Migrant Aid”

NOT ACTUALLY TRUE

Time for a Statutory Reform of the Final-Say Procedures 

 The Issue

The migrant-worker decision of the Ontario Workplace Safety and Insurance Appeals Tribunal that caught the Toronto Star’s attention (Decision No. 1773/17) once again shines the spotlight on the WSIB’s long-standing policy of Tribunal denial – the Board’s policy of refusing to be bound or even influenced by any Tribunal decision except for its statutory duty to comply with the Tribunal’s specific directions in that particular case.

As long as that Tribunal-denial policy is in place, no decision of the Appeals Tribunal can be said to have “overturned” any WSIB practice.

The Case

In Decision 1773/17, the Tribunal concluded that it was illegal for the Board to measure the availability of suitable employment for partially disabled migrant workers living in their home countries against employment only available in Ontario.

The appellant in that case had suffered a permanent impairment that was partially disabling as a result of an injury suffered while working as a migrant farm worker in Ontario.  He was awarded a NEL benefit, but was found not entitled to an LOE (Loss of Earnings) benefit because in the Board’s opinion there were jobs as “cashiers” suitable for him and for his disability that were “available” in the Ontario labour market adjacent to the farm where the injury occurred.

Those cashier jobs paid more that the appellant was earning as a migrant farm worker at the time of his injury and, accordingly, the Board determined that he had suffered no loss of earnings and was, therefore, not entitled to an LOE benefit.  The Board had come to this conclusion even though, because of his injury, the worker had been required by the terms of the migrant-worker program to return to his home country and was no longer eligible to work in Ontario.

The Tribunal’s Decision

On appeal, the Tribunal found that the measuring of the availability of suitable employment against employment opportunities in Ontario when workers are so situated as to have no possible access to such opportunities was illegal as being contrary to the Act’s requirements.   The appeal was allowed and the Tribunal directed the Board to revisit the LOE benefit decision and this time to judge the availability of suitable work for this disabled appellant only against suitable employment that may be available to him in a local labour market in his home country.

Why Was Section 126(4) not Invoked?

It is interesting, and telling, to note that the the Tribunal did not consider this decision to be a candidate for referral for review by the Board pursuant to section 126(4) of the WSIA (Workplace Safety and Insurance Act).  Presumably, this was because Section 126(4) only requires the Tribunal to refer decisions that find a Board “policy” to be illegal and what the Tribunal had found to be illegal was identified  – by the Board – as “not a Board policy”.

The Board adjudicator’s decision in this case was based on a Board “Adjudicative Advice” document that specified the coverage and entitlement under the workers’ compensation system for workers injured while employed in Ontario under the migrant workers program.  That document instructed the Board’s adjudicators that where workers end up partially disabled by an injury suffered while working in the latter program, and have been repatriated to their own country, the determination of what occupations are suitable and available to them is nevertheless to be based on employment availability in Ontario.

The document was entitled  “Adjudicative Advice: Coverage and Entitlement for Worker’s Hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program”.

In the decision appealed in this case, the Board’s adjudicator – the ARO – stated explicitly that he was “guided” by this “Adjudicative Advice” document.

So why did the Tribunal not consider the instructions in this document to be a Board “policy” on the availability of suitable employment for injured migrant workers and thus subject to a s. 126(4) referral?  It certainly looks and feels like a policy.

If one were to apply the looks-like-a-duck-walks-like-a-duck principle, one would surely conclude that this was a “policy”.

But the  Advice document itself specifies that it is not.  As the Tribunal notes in its decision, the first page of the Adjudicative Advice document includes the following notation:

Notice: This document is intended to assist WSIB decision-makers in reaching consistent decisions in similar fact situations and to supplement applicable WSIB policies and guidelines as set out in the Operational Policy Manual (OPM). This document is not a policy and in the event of a conflict between this document and an OPM policy or guideline, the decision-maker will rely on the latter.  [Emphasis added.]

Thus, when the Tribunal concludes that the Advice in this document is inconsistent with the Act’s requirement that any occupation that is suitable must also be “available” – really available – what it has found to be unlawful is not a “policy”, so-called, and the Tribunal panel gives no consideration to the possibility that section 126(4) might require a referral. .

The Tribunal also finds that the advice in the Advice document is not only in breach of the Act’s requirements but also inconsistent with the Board own policies that are policies – the Operational Policies 19-03-03, “Determining Suitable Employment”, and 12-04-08, “Foreign Agricultural Workers”.

The Problem

As noted at the outset of this post, the Toronto Star’s front-page headline on October 5, 2017, read: “TRIBUNAL OVERTURNS WSIB PRACTICE OF CUTTING MIGRANT AID” and the report referred to the decision as a “landmark” decision.

But that headline and that “landmark” characterization were ingenuous. The Star and its journalist were drawing the reasonable conclusion that, given the Appeals Tribunal ruling that this practice was illegal, it must surely follow that the Board would now, in light of that ruling, revise its practice so that from now on it would measure the availability of suitable employment for partially disabled migrant workers in terms only of employment actually available in the countries where they were now living.

But injured workers and their advocates know that this is not how the system works.  This particular appellant will have the benefit of the Tribunal’s decision, but, in accordance with the Board’s deeply entrenched policy of Tribunal denial, the Board will otherwise ignore the decision and continue to deny or limit LOE benefits for disabled off-shore migrant workers based on the deemed availability of suitable employment in Ontario.

The Board will ignore this decision just as it had for several years ignored the Tribunal’s findings that the Board’s discounting of NEL benefits from January 2012 to November 2014 because of pre-existing, asymptomatic conditions was based on an incorrect interpretation of its then existing policies, and just as it continues to deny chronic stress benefits more than three years after the Tribunal found the statutory provisions on which the Board relies for those denials to be constitutionally invalid, and just as it must be expected to continue to discount NEL benefits based on pre-existing, but asymptomatic degenerative disc diseases notwithstanding the Tribunal’s recent findings that the Board’s post-November 2014 policies do not in fact authorize such discounting.

Of course, the Appeals Tribunal’s decisions do create rights for others.  All partially disabled migrant workers living in their own countries now have the “right” to expect that the availability of suitable jobs will eventually be measured relative only to their own country’s labour market areas.  The problem is that it is not a right the Board will recognize.

Off-shore migrant workers will be able to enforce that right only if they can find a way to appeal the Board’s decision denying that right and to wait, without an LOE benefit, until the Tribunal hears and decides their appeal and the Board complies with the Tribunal’s decision.

As we speak, the same is true for workers claiming chronic stress benefits that are denied on the basis of the constitutionally invalid statutory limitations, and for workers whose benefits are illegally reduced because of pre-existing, asymptomatic degenerative conditions.

The rights are there, but they are only available to workers with the financial and emotional wherewithal and rights-awareness required to support an appeal of the denial of those rights to the Tribunal, and the capacity to wait, without benefits, until the Tribunal hears and decides their appeals.

And it can be a long wait.

In the case of the migrant worker whose appeal decision was reported in the Star, the injury occurred in August 2008 – nine years ago.  The appellant was found to have reached the point of “maximum medical improvement” (and thus entitled to be considered for permanent impairment benefits) in November 2010.  The denial of an LOE benefit occurred first in September 2011, and the Board’s ARO upheld that denial in April 2013.  The Tribunal’s decision on the appeal from the ARO’s decision is dated September 27, 2017.

The iniquity of the Board’s Tribunal-denial policy was originally addressed on this website in the site’s first post on the subject of administrative justice in the workers’ compensation system.  That post is dated September 9, 2015.  The question asked then, remains pertinent – viz:

The Tribunal-Denial policy is pursued at the cost of making the lives of already disadvantaged injured workers more miserable than they need to be – more straightened than the law intended.  Why, then, do we – or the Board – not regard this policy as an abuse of process? Why do we not see it as bringing the administration of justice in the workers’ compensation system into disrepute?

But the Remedy is Complicated

The remedy is, however, more complicated than just eradicating the Tribunal-denial policy.  It must also be recognized that it is, in fact, not practicable for the entitlement policies or practices of an organization as large, complicated and costly as the WSIB to be turned around overnight in a final way because of a Tribunal ruling by one hearing panel in a single case.

It is the recognition of the latter reality that led Professor Weiler to recommend procedures which arguably put the final say on legality issues ultimately in the hands of the WSIB Board of Directors (see section 86n of the original WCAT legislation) and that no doubt spawned the Board’s Tribunal-denial policy in the first place.

However, because of the egregious conflict of interest inherent in the Board’s role as both the system’s administrator and the adjudicator of worker and employer rights, the principles of procedural fairness surely rule out entrusting the Board with the final say on legality issues.

Nevertheless. as a practical matter, the Board must have some say, some acknowledged, lawful, fair procedure for challenging Tribunal legality rulings in individual Tribunal decisions.

Statutory Remedy

What is needed in this author’s opinion is legislative reform that would put an end to both the Tribunal-denial policy and the section 126(4) referral requirement, but clarify the Board’s ability to challenge the Tribunal’s legality rulings in a fair and effective way while still not entrusting the Board with the final say.

The author proposes amendments to the WSIA [inserted in place of the existing sections 126(4) to (8)] that would begin by defining the Tribunal rulings – call them “legality rulings”  – that would be binding on the Board going forward unless and until the Board chose to challenge them in accordance with the new procedures.  That definition might read as follows:

“Legality Ruling – a ruling of an Appeals Tribunal panel to the effect that a Board policy, practice, advice, direction or guideline, or any interpretation thereof, that has been applied in a Board adjudication of the rights of a worker or employer is unauthorized or otherwise illegal”.

The statutory provisions governing a Board challenge of any legality ruling as so defined would then:

1. Require Notice to the Board of a Legality Ruling 

Upon the release of a decision in which a Tribunal panel has made a legality ruling, as so defined, require the Tribunal to give the Board formal notice of that ruling.

2. Allow for Board Applications for Tribunal Reconsideration of Legality Rulings 

Authorize the Board to make timely applications to the Tribunal for a reconsideration of any of the Tribunal’s legality rulings, with the Board having standing as a party in such applications.

3. Provide for Ruling to be Otherwise Binding

Require the Board to apply the legality ruling in all cases going forward unless it elects to apply for reconsideration of the ruling.

4. Require Tribunal to Hear Reconsideration  Application

Require the Tribunal to respond to Board reconsideration applications by having a different panel review the legality ruling on its merits in light of submissions received in the reconsideration hearing and by issuing a reasoned reconsideration decision that confirms, overrules or revises that ruling.

5. Give Worker or Employer Organizations Standing as Public-interest Intervenors in Reconsideration Hearings

Grant injured-worker and union and employer advocacy organizations standing to intervene and participate as public-interest parties in Board applications for reconsideration of legality rulings, as selected and approved by the Tribunal.

6. Reconsideration Facts as found by Tribunal

Specify that, for purposes of a Board reconsideration application, the facts are to be the facts as found by the Tribunal in the decision in which the legality ruling for which reconsideration is sought occurred.

7. Require Priority Scheduling for Board Reconsideration Applications

Require the Tribunal in its scheduling of cases to give first priority to Board reconsideration applications and to treat all matters concerning the advancement of such applications to a final Tribunal decision as matters of urgency.

8.  Give the Board, or Intervernors, Standing to Apply for Judicial Review of Reconsideration Decisions

Authorize the Board (but only with the approval of its Board of Directors), and any of the intervening parties, to apply for judicial review of the Tribunal’s reconsideration decisions on legality issues, with the Board having standing as a party in any such review.

9.  Provide for Deference to the Tribunal on Judicial Review

Recognize the Tribunal’s entitlement to deference in any judicial review of its decisions (including reconsideration decisions) and confirm the courts obligation to review the Tribunal’s decisions on legality issues against the reasonableness standard of review and also to recognize the Tribunal’s standing as a party in the judicial review proceedings.

10.  Protect Individual Rights While Board Challenge Proceeds

Ensure that the rights of individual injured workers or employers are not affected or delayed while the Board pursues its challenge of a Tribunal’s legality ruling, by:

(a) Providing that the rights of the injured-worker or employer who were the parties in the decision in which the ruling against the Board on a legality issue was made have been finally determined by that decision, despite any Board application for reconsideration concerning the merits of the legality ruling itself; and

(b) Requiring the Board to continue the processing of other claims in the ordinary course of such processes while bringing its policies and practices applicable to its decision-making in respect of those other claims forthwith into conformance with the Tribunal’s legality ruling, effective from the date of that ruling (or, upon the Board applying for reconsideration, from the date of the Tribunal’s reconsideration decision) until the date when any court challenge of that ruling comes to an end.

11. Specify Retroactive Effect for Confirmed Tribunal Legality Rulings

Where a Tribunal legality ruling is not challenged by the Board, or at the end of the challenge procedure the ruling is confirmed in whole or in part, deal with the question of the retroactivity of the ruling as follows:

(a) If the Board’s original position on the legal issue overruled by the Tribunal’s legality ruling was at least supported by an argument that was within the range of arguments that could be fairly said to be reasonable, apply the overruling to all cases that were still subject to adjudication in the system as of the date of the Tribunal decision in which the legality ruling first occurred. [This provision would accord with the general common law of retroactivity – see WCAT Decision No. 915A.]

(b) If there were no reasonable grounds for the Board to have adopted its original position on the legal issue overruled by the Tribunal’s legality ruling, apply the overruling retroactively to every case in which entitlement rights were detrimentally affected by the overruled position and for which the Board receives a request for reconsideration.

12.  Specify Retroactive Effect of Successful Board Challenge 

Where a Board challenge to a Tribunal legality ruling is successful, in whole or in part, require the Board to apply any correcting revision of its previous conformance of its policies, practices, advice, directions or guidelines, or interpretations thereof, with the Tribunal’s original legality ruling, only to entitlement claims arising from injuries occurring after the date on which the Board’s successful challenge of the Tribunal’s legality ruling is finally confirmed.

CONCLUSION

A legislative reform of this nature is an essential step in restoring public confidence in the administration of justice in Ontario’s workers’ compensation justice system.

RE