Administrative Justice in Workers’ Compensation – Post # 7: Mass Adjudication and its Shortcomings

Another in the Ontario workers’ compensation series.

For the introduction to the series, see Post #1 in this series, linked below

Mass Adjudication: Keeping An Eye on the Ball

INTRODUCTION

The adjudication of claims by a benefit administrator in its adjudication role, typically involves adjudication structures designed to deal with the problems of mass adjudication.

And, in the effort to deal efficiently with large numbers of claims, such structures can distort the focus on the getting-it-right quality of the adjudication in the small percentage of cases that actually present contentious issues.

Workers’ compensation systems are a classic case of the need for mass adjudication structures and of the possible distortion of that focus.

This post proposes to sharpen that focus a bit.

HISTORICAL BACKDROP – WEILER

The 1980 Weiler Report on Ontario’s Workers’ Compensation System records that in 1979, the Ontario Workers’ Compensation Board (now WSIB) dealt with 460,000 claims – 1,800 new files opened every working day.

In an effort to ensure that the focus on the getting-it-right quality was not lost in the push for efficiency in the adjudication of that vast number, the Board’s practice at that time was to take  all cases in which front-line adjudicators denied claims and automatically refer them to the Board’s “Claims Review Branch” for correctness review.

(That practice may be contrasted with the WSIB’s current practice which anecdotal evidence suggests now requires an internal review only for adjudicator decisions that grant benefits in contentious cases.)

Weiler reports that out of those 460,000 initial claims-adjudicator decisions in 1979, 20,000 denials were sent for review to the Claims Review Branch and, of those, 40% (8,000) were reversed or revised.

In that same year, there were 3,600 appeals to the Board’s “Appeal Adjudicators”, of which 33% – 1,200 – were wholly or partially successful.  There were also 1,500 Appeal Adjudicator decisions appealed to the Board’s “Appeals Commissioners” and 600 of those were revised or reversed.

Thus, Weiler’s study can be taken to show approximately that, of 460,000 claims that were mass adjudicated in 1979, 20,000 claims were denied in whole or in part by the front-line adjudicators, and those denials were found to be wrong in some significant measure nearly half the time. **

** This figure is only roughly right as it does not take into account the proportion of successful employer appeals as I don’t have that data.

(For the references to Weiler, see Unjust by Design, Introduction end notes 21 and 24).

ONLY 5% OF THE CASES ARE CONTENTIOUS

It is also of interest that Weiler’s figures show that the number of contentious cases adjudicated by the Workers’ Compensation Board in 1979 amounted to no more than about 5% of the total number of initial claims.

(By “contentious”, I mean cases with debatable issues, which is to say those which in 1979 were initially denied and sent to the Claims Review Branch for review some of which then found their way to the Appeal Adjudicators and Appeals Commissioners. )

That the proportion of contentious cases was as low as 5% may be surprising to some readers, but a misapprehension is natural in that regard as, of course, it is only the contentious cases that one ever hears about.

Proportionately, very few injured worker claims are contentious in any way; typically, an injury occurs at work – an ankle is broken; time-off is taken as required; accommodation is provided during the healing; the worker returns to his original work with no permanent impairment and with no permanent loss of earnings; the claim is made by the employer, or with the employer’s support, and the Board, with no possible grounds for questioning the claim, and very limited cost exposure, accepts the claim, writes the cheque and closes the file.

While the overall numbers have changed dramatically since Weiler, there is no reason to think the nature of the business, or the limitations on getting things right that are inherent in any mass adjudication have changed fundamentally.  It is, therefore, reasonable to expect that the relationship between the number of straightforward claims and the number of claims with issues that are likely to lead to denials in the first instance will have remained much the same – ie., roughly, 95% straightforward and 5% candidates for denial.

That surmise – that it is still only about 5% of claims that present issues of an inherently contentious nature – is supported in a back-handed way by a report in the WSIB’s 2014 Q4 “Measuring Results Report”.   That report tells us that, during its reporting period, 93.3% of decisions were made on registered claims “within two weeks”.

It is reasonable to presume that decisions that can be made within two weeks of registration are not decisions that are dealing with issues of significant contention.

BUT FIVE PERCENT IS STILL A LOT OF CASES

Now 5% of claims is a small proportion but still a significant number of actual cases.  If the total number of claims in a year for a workers’s compensation board were, in the modern world, say, 250,000, then, applying the 5% figure, the number of claims that one would expect to be candidates for denial in the first instance in that board’s mass adjudication structures would be in the order of 13,000 per year.

And, of course, it will be on that 5% that any workers’ compensation board’s cost-averse adjudication bias will be focused, and, for critics of a workers’ compensation system, that is the “ball” on which they need to keep their eye.

Thus when the WSIB reports in its Q2 2015, “Measuring Results” report that:

“customer satisfaction among injured workers reached 80 per cent, the highest recorded since the quarterly survey began in 2011. Both ‘informing of the progress of a claim’ (85 per cent) and ‘being referred to the right person as quickly as possible’ (80 per cent) were strong contributors to these results …

it is well to remember that the claims of about 95% of the injured workers who would have been asked to respond to that survey will be workers with whose claims the Board will have had no reason to quarrel.

Number of Workers Denied Benefits to which they are Entitled

A CONJECTURE

It is not unreasonable to assume that the “incorrectness” rate of “nearly half” for front-line denials of benefits in the Ontario Workers’s Compensation Board’s system of mass adjudication in 1979, as reported by Weiler, will be replicated in some significant measure in any modern workers’ compensation system’s adjudicative structures.

It is especially not unreasonable to make that assumption with respect to the WSIB’s structures, given that its mass adjudication environment must be taken to be operating under the influence of its acknowledged cost-averse institutional bias.

That assumption would lead one to the conclusion that a workers’ compensation system that received 250,000 claims a year could be expected to incorrectly deny in the first instance roughly 6,500 of those claims – that is, 13,000 claims denied and 50% of those denials incorrect in whole or in part.

And with those denials no longer automatically subjected to internal review at the WSIB’s more senior levels, the correction of these denials now apparently depend solely on the affected injured worker launching an appeal.

It would be useful to have actual data on what proportion of workers with meritorious claims that have been incorrectly denied in a typical workers’s compensation system do in fact appeal.  (And, indeed, there is a good deal of data on a multitude of issues in our benefits systems for which empirical research is self-evidently needed.)

Meanwhile one can only rely on educated guesses.

The educated guess of some experienced advocates about those appeal rates is that only about a third of injured workers will in fact appeal incorrect front-line denials of meritorious cases.  The other two-thirds of workers with denied meritorious claims will not have the understanding, the professional support, or the emotional or financial wherewithal, to commence or sustain an appeal.

If that educated guess were about right, we would then expect that of the 6,500 claims incorrectly denied in a year in this workers’s compensation system’s mass adjudication structures only 2200 would be exposed to correction on appeal.

If those guesstimates were reasonably within the ballpark, that would leave, each year, 4,300 – call it 4,000 – injured workers entitled to benefits, in need of those benefits – often in dire need of those benefits – but without access to those benefits.

As I have made clear, this is conjecture based on educated guesses, but if the guesses were out by even 50%, that would still leave 2000 injured workers each year who, by reason of the shortfalls in system structures, will have been deprived of needed benefits to which they were in fact entitled.

And, then, of course, there are those with meritorious cases who do appeal and have to wait two or three years to get their benefits.

 

RE

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