Administrative Justice – WSIB not telling it the way it is when it comes to the thin skull rule

The following is a letter the author submitted to the editor of the Toronto Star on July 24, 2106.   Since the Star elected not to publish it, I thought I might share it with the visitors to this site.

July 24, 2016

Editor, Toronto Star

In the Star’s July 21st article by Sara Mojtehedzadeh on the WSIB’s new (2014) policy concerning “pre-existing conditions” (WSIB’s rulings fail injured workers), a WSIB spokeswoman is reported as saying that the Board’s new policy is “compatible with the thin-skull doctrine”.  Regrettably, that is not true.

The so-called, “thin-skull” doctrine holds that a permanent impairment resulting from an accident is fully compensable even if an accident victim’s pre-existing health condition – i.e., to take the classic example, the victim’s damaged skull being preternaturally thin – is found to be contributing to that impairment. In calculating compensation, one must, as the courts have said, take accident victims as one finds them, thin skull or not.

The thin skull doctrine is routinely applied in the court system for compensating individuals injured in, say, a motor vehicle accident and, as one would expect, has also always been applied in Ontario’s system for compensating workers injured in work accidents.

Take, for example, a worker whose foot is injured in a work accident where, because of complications arising from the worker’s pre-existing diabetic condition, the foot does not recover as expected but must be amputated.  The thin-skull doctrine would require compensation for the loss of the foot with no reduction because of the contribution of the diabetes.

But the current Board has overturned the decades-long, legal interpretation that acknowledged the thin-skull doctrine to be a “cornerstone” of the Ontario workers’ compensation system and under its new policy the loss of that foot would not be compensated.

This is a revolutionary change which the Board has implemented without amendment to the Act, and without public explanation or justification.  It is a change that is emblematic of the cost-slashing neurosis that has characterized the Board’s operations in recent years.

Contrary to the assurances of the Board’s spokeswoman in the Mojtehedzadeh article, the policy of abrogating the thin-skull doctrine as it applies to permanent impairments resulting from work-place injuries is in fact deeply imbedded in the Board’s directions to its decision-makers in at least three of the Board’s new Operational Policies published on November 3, 2014.  The following excerpts from Operational Policy No. 18-05-03 entitled “Determining the Degree of Permanent Impairment” are especially to the point.

If it is established that a pre-existing condition is  contributing to the degree of total impairment to the same area of the body, the decision-maker rates the total impairment to the area according to the prescribed rating schedule, determines the rating for the pre-existing condition according to the prescribed rating schedule, and subtracts the rating for the pre-existing condition from the total impairment rating to get the rating for the new work-related impairment.

If the significance of the pre-existing condition is

  • minor, there is no reduction

  • moderate, there is a 25% reduction

  • major, there is a 50% reduction.

Moreover, as the worker featured in the article discovered, the Board will reduce benefits to zero whenever it decides that the impact of the pre-existing condition on the impairment has “overwhelmed” the impact of the original work-accident injury – to cite the Board’s new policy language.  And it should be very concerning to injured workers dependent for their livelihood on WSIB benefits to see the article’s confirmation that the Board is continuously searching for benefits that can be cut on that basis.

So, no, the new policy is not compatible with the thin-skull doctrine.

Yours truly,

Ron Ellis.

 

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