This post is the first in a series focused on justice issues in Ontario’s workers’ compensation administrative justice system.
In that system, as in so many others, the rule of law has been disrespected and in this series of posts I will be counting the ways.
ONE HALLMARK OF THE MALAISE – THE WSIAT BACKLOG
TEN THOUSAND APPEALS
I will begin the discussion with the most obvious evidence of the system’s malaise – the backlog of appeals waiting to be heard at the system’s appeals tribunal (the Workplace Safety and and Insurance Appeals Tribunal – WSIAT).
That backlog now stands at approximately 10,000 appeals.
HOW TO ACCOUNT FOR IT
The unprecedented growth in the Tribunal’s backlog has been caused by the regime change in the Workplace, Safety and Insurance Board’s management in 2010 and the commitment of that new regime to a radical reduction in the Board’s benefits costs.
The truly miraculous degree to which the new regime has in fact reduced what the Board pays in benefits will be described in future posts.
For purposes of this first post it is enough to note that the Board’s transformation beginning in 2010 resulted in a jump in the proportion of Board decisions being appealed to the Tribunal and, with the resources available to the Tribunal remaining the same, the increase in the backlog inevitably followed.
THE BOARD’S POLICY OF TRIBUNAL DENIAL
However, the growth in the proportion of Board decisions being appealed was not attributable only to the new regime rejecting a higher proportion of claims. It was also compounded by the Board’s policy of deliberately ignoring the Appeals Tribunal decisions on legal issues.
For ease of reference, I will call the latter policy the Tribunal-Denial policy.
HOW THE POLICY WORKS
The Tribunal-Denial policy plays out like this:
The Board rejects or reduces an injured worker’s claim on the basis of its interpretation of an applicable provision in the Act or in one of its published “policies”. The worker appeals that interpretation to the Tribunal. The Tribunal finds the Board’s interpretation of that provision to be wrong and in a fully reasoned decision allows the worker’s appeal.
The Board is required to implement the Tribunal’s decision in that particular case for that particular worker, which it does; but, in subsequent cases in which that same issue presents itself, it continues to apply its own interpretation. And when those decisions are appealed, the Tribunal allows the appeals, confirming each time that the Board’s interpretation is not correct.
The Board is, of course, aware of the Tribunal decisions regularly confirming the Tribunal’s view that what the Board is doing is wrong in law, but continues to ignore the Tribunal’s interpretation and persists in issuing decisions that decline or limit benefits on the basis of its own interpretation.
The Board would appear to have standing to challenge the Tribunal’s interpretation through a judicial review application, but it chooses instead to simply ignore it.
Injured worker counsel appearing before Board adjudicators and seeking to rely on the Appeals Tribunal’s jurisprudence soon learn that the Board is not interested in what the Tribunal has had to say.
HOW THE TRIBUNAL-DENIAL POLICY WORKS – AGAINST INJURED WORKERS AND FOR THE BOARD
Assume you are a worker who has been injured at work and the injury has prevented you from continuing to work. You apply for the compensation benefits to which, in accordance with the Act as interpreted by the Appeals Tribunal, you are in fact entitled. But the Board, on the basis of ignoring the Tribunal’s decisions and continuing to apply its own interpretation, denies or reduces your benefits. It does so knowing that, in accordance with the settled Tribunal jurisprudence on this interpretation issue, you are entitled to these benefits; that if you appeal, the appeal will be allowed and the benefits awarded as claimed.
But, as the Board knows, a significant proportion of injured workers in your position will not have the financial or emotional wherewithal or personal capacity to appeal, especially when an appeal will take a number of years to complete.
And, even if you do appeal, and many in your situation of course do, it will take two or three or more years for you to finally reach the point where the Board will actually have to start sending the cheques it should have been sending from the beginning.
The Tribunal-Denial policy takes a chunk of the Board’s inherent financial obligations off its books. Much of that chunk disappears permanently when appeals are not filed, and the rest is effectively hidden away for two or three years in the Appeals Tribunal’s backlog.
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?
In the last five years, the Board has achieved remarkable reductions in its costs and in its unfunded liability and earned serious praise from the employer community for those achievements. But one of the things the system’s stakeholders should want to know is what part of those reductions have in fact been derived directly or indirectly from the Tribunal-Denial policy – from the denial of benefits to which injured workers were, to the Board’s knowledge, in fact entitled.
Final question: Is there not a remedy?