Another in the Ontario workers’ compensation series.  (For the introduction to the series, see Post #1  referenced below.)

INTRODUCTION

As recounted in workers’ comp post #3 – my hijacking post – the WSIB has deemed, incorrectly in my view, that the WSIA’s direction to it to “provide benefits in a financially responsible and accountable manner” (section 1) applies not only to its role as the system’s administrator, but also to its role as the system’s adjudicator – not only, that is, to the provision of benefits but also to the determination of the benefits that are to be provided.

The result is that in the exercise of its adjudication function the Board has abandoned the rule of law’s principle of impartiality and embraced what I have called a cost-averse bias.

Post #3 addressed the influence of that bias in the part of the Board’s adjudicative role that relates to the interpretation of the law – in that case to the interpretation of the statute respecting the meaning of “results from” relative to the impact of pre-existing conditions on permanent impairments.

The Board decided to abandon the system’s decades-old interpretation that the thin-skull doctrine pertained to the workers’ compensation system and prevented discounting permanent impairment benefits because of the impact of asymptomatic, pre-existing conditions. It made that decision principally because of the notable cost-savings that abandonment would achieve.

But the influence of an institutional cost-averse bias in a workers’ compensation board’s exercise of its adjudication function cannot be expected to be limited to the interpretation of the law.  Once set in motion by a board’s management, that cost-averse bias might be expected to have a prejudicial potential for injured workers benefits in many, or even in each, element of a board’s adjudication function.

When I speak of the “elements” of a board’s adjudication function, I am referring to the various categories of discrete adjudicative decisions which the board or its adjudicator employees or agents must make in the course of arriving at a final determination of the benefits to which an injured worker is entitled.

In what follows I identify twelve such adjudicative elements.

And what this post suggests is that to understand the potential, overall, impact on benefits of a workers’ compensation board’s embrace of a cost-averse bias in the exercise of its adjudication function, one needs to examine the board’s exercise of each of the individual elements of that function in particular cases for evidence of that bias at work, in that element, in that case or in that category of case.

ONE EXAMPLE: APPLYING THE STANDARD OF PROOF

For example, one of the elements of the adjudication function in each particular case is the selection of the standard of proof and the weighing of the evidence against that standard.

In any non-criminal litigation, including in a workers’ compensation system, the law is settled that the applicable standard of proof is the balance of probabilities.

THE STANDARD OF PROOF AND THE EMPLOYABILITY ISSUE

Consider for a moment the standard of proof issue in the context of a board’s adjudicative finding on the question of an injured worker’s future employability.

Future employability is a factual issue requiring an adjudicative finding of fact by a workers’ compensation board’s adjudicator based on sufficient relevant evidence.  And it is obviously an issue of great importance to both the worker and the board. If the evidence proves that the work-related injury has rendered the worker unemployable, the benefit entitlement and the board’s costs are both dramatically increased.

In the adjudication of an issue such as this, how one frames the question depends on what standard of proof one is applying.

Applying the balance of probabilities standard to the employability issue, one would ask this question: “Is it more likely than not that this worker is unemployable?”.

But if, perchance, a compensation board’s adjudicators were found to be framing the employability question in this fashion: “Is it conceivable that this worker could find employment?”, that would be evidence of the application of an unlawful standard of proof and of that board’s cost-averse bias at work.

Framed in that fashion, the question would reflect that board’s rejection of the standard of proof the law requires on the employability question and its substitution of a standard of proof at least as severe as the criminal law’s beyond-a-reasonable-doubt standard, with, of course, a great saving to that cost-averse board’s bottom line.

Each adjudicative element in the exercise of a board’s adjudication function can be similarly examined through the cost-averse bias lens.

ADJUDICATIVE ELEMENTS INHERENTLY SUSCEPTIBLE TO BIAS

The elements of adjudication that should be examined for the influence of bias include:

1. The structuring – and the administration in each particular case – of the methods of ensuring that decisions in individual cases are as consistent and as congruent as possible with decisions in like cases.

(These methods might include routinely subjecting benefit-granting decisions by front-line adjudicative employees to review by senior supervisors. And certainly one of the goals of a consistency-ensuring strategy would be to ensure that a board’s cost-averse bias has its desired role in the exercise of all adjudicative elements.)

2. The identification and interpretation of the applicable law by a board and the writing of a board’s policies and guidelines.

(The writing of the WSIB’s November 2014 policies respecting the discounting of impairment assessments where asymptomatic pre-existing conditions are deemed to be impacting on the consequences of the work-place injury, would be one example; the Board’s institutional policy of ignoring Appeals Tribunal decisions on interpretation issues another.)

3. The selection and interpretation of the applicable law, board policies and guidelines in individual cases.

(The reference here is to the interpretive work entrusted to a board’s front-line adjudicators or appeals officers. If there is bias here, it will be found in the interpretations themselves, in the training and supervision of the personnel, and in a board’s practices and policies concerning the assignment, retention and promotion of individual adjudicators.)

4. Determining the issue agenda in each case.

(This is an element inherent in any inquisitorial adjudication process (which, of course, is the nature of the adjudicative process at the WSIB).  One example at the WSIB is the Board’s choice to make the impact of asymptomatic pre-existing conditions on the consequences of a work-related injury an issue in all impairment cases starting in 2012.  There is no evidence in the January 2012 cases that this issue was raised by an employer party.  Another example is the choice to put all previously decided benefit-related questions back in issue whenever a worker chooses to challenge one of those questions.)

5. Selecting the mode of hearing – oral (face-to-face, telephone, or video) or written.

(Written hearings are cheaper, avoid the unpredictable influence on an adjudicator of personal testimony and oral advocacy, and minimize the risk of a worker engaging the empathy of the adjudicator.)

6. Selecting the employees who are to be entrusted with the Board’s adjudicative function in each individual case.

(This speaks for itself.)

Ellis Note: I ran out of steam here.  I leave the intuiting of the possible bias influences in the rest of these adjudication elements to the reader.

7. Making rulings on the relevance of evidence.
8. Deciding in each case whether the evidence before the adjudicator is sufficient or insufficient and whether the board’s investigative powers need to be exercised.
9. Defining the terms of reference for the investigation and selecting the investigator.
10. Judging the credibility of relevant evidence and assessing its relative weight.
11. Making findings of fact by measuring the accumulated evidence against the applicable standard of proof while recognizing and respecting the location of the burden of proof.
12. Making reasoned decisions through applying the decided law to the findings of fact.

THE INSTITUTIONAL AND INQUISITORIAL NATURE OF THE WSIB’S ADJUDICATION FUNCTION

Many of the foregoing adjudication elements reflect the fact that the adjudicator in each case is the Board, acting through its employees and agents, and that the Board’s adjudication function is an inquisitorial function, not an adversarial function.

The factors which demonstrate the inquisitorial nature of the WSIB’s adjudicative responsibilities include the following:

• The Board’s implicit, as well as self-proclaimed role as the “trust agency for administering the Province’s compensation system”.

(See the Board’s characterization of its role in those terms at page 30 of the 2014 Q4 Report to Stakeholders.)

• The statutory direction to the Board to make its decisions “based upon the merits and justice of a case …”.  See WSIA, section 119(1).

(This may be contrasted with an adversarial adjudicator’s role of deciding which of the cases presented to it by the parties is most persuasive.  Unlike an adversarial adjudicator, an inquisitorial adjudicator has the obligation to get his or her decision “right” on the objective merits, whatever the weaknesses of either party’s evidence or arguments may be.)

• The Board’s broad statutory powers of investigation which it is free to initiate at any time on its own motion.
• The fact that it is inherently the case that there is commonly only one party to the Board’s adjudicative proceedings.

 

RE