Disability Benefits Conflict Eliminatus
A Call For Conflict-Free Initial Adjudication
The Conflict Problem
The organizations that administer statutory disability benefit programs are also the organizations that adjudicate the claims for those benefits. And it is self-evident that in their statutory role as the system’s adjudicator they are intrinsically and egregiously conflicted. As the adjudicator they get to decide what as the administrator they must pay. They are both the judge and the opposing party.
This conflict is characteristic of the initial adjudication of all disability benefit claims including workers’ compensation, provincial disability support programs such as the ODSP, the Canada Pension Plan disability pension program, and the Veterans disability program administered by the Department of Veterans Affairs. It is a conflict that is incompatible with the principles of procedural fairness but one that is never challenged. Historically, it has been deemed acceptable as long as claimants have a right to appeal the conflicted decisions to a tribunal that is independent of the administrator.
In Unjust by Design, this author went along with that conventional thinking and accepted that if claimants had a final appeal to an independent tribunal that was enough to satisfy the rule of law.[1] *
*Square-bracketed numbers refer to end notes set out below
But that conventional thinking developed in an era when trust in the administrators had not eroded.
In recent years, government preoccupation with policies of fiscal restraint and deficit reduction have heightened the pressure on benefit administrators to cut their expenditures and thus intensified the impact of their conflicting interests within their adjudicative processes.
In Ontario’s workers’ compensation system, for instance, the pressure on the WSIB to radically cut its expenses took a noticeable jump and came to public notice when the Ontario Auditor General warned the Government in 2009 that, if the WSIB did not get its unfunded liability under control, the amount of that liability – 12 billion dollars at the time and rising – would be added to the public debt for which the government is responsible.
The Consequences
The heightened pressure to reduce costs has so activated the influence of the administrators’ conflicts of interest within their adjudicative processes that we are now at the point where cultures of pro-active denial have become the hallmark of those processes.
See, for example:
The 2010 statement of the then Veteran’s Ombudsman, Pat Stogran, decrying the “insurance-company culture of denial” in the Department of Veterans Affairs’ adjudication of veterans’ disability-benefit claims. [2]
The 2015 Auditor General review of the CPP disability claims appeals in the out-of-control backlog of the Social Security Tribunal that indicated that 30% of the claims languishing in that backlog should never have been denied in the first place. [3]
The unreasonable – but, for the government, notoriously profitable – delays in the adjudication of claims under Ontario’s Disability Support Program by the Ministry of Community and Social Services’ DAU (the Disability Adjudication Unit) [4] – and the infamously high success rates of appeals of DAU decisions to the Social Benefit Tribunal.
The overwhelming evidence of a culture of proactive denial in the adjudicative processes of Ontario’s Workplace Safety and Insurance Board (WSIB) [5]; a culture that has, to quote the report of the “Revised Sir William Meredith Royal Commission, changed the system from one that promised “justice speedily and humanely rendered, to one that starts from no”. [6].
When these cultures of denial led to markedly higher denial rates, and thus soaring numbers of appeals, the same policies of fiscal restraint and deficit reduction left the appeals tribunals without sufficient resources to cope with the increased caseloads, leading to out-of-control tribunal backlogs.
So, when conflicted adjudication processes produce life-altering denials of valid claims, the victims of those denials are left – without benefits – for two or three years or more while their appeals wait for a hearing in the appeals tribunals’ backlogs. Most importantly, the majority of the victims of these invalid denials do not have the financial or emotional resources, or rights awareness, required to begin an appeal in the first place or, if begun, to support one through to the end. For the latter victims these unwarranted denials permanently destroy what should have been life-enhancing benefits.
Unjust and Undemocratic
Systemic cultures of denial in the adjudication of claims for disability benefits are not only incompatible with principles of procedural fairness, and the hallmark of a disreputable system of justice, they are also an affront to democratic principles. The legislature has decided what benefits the disabled need and has enacted legislation to meet that need. But, then, through infecting adjudication processes with cost-averse biases and pro-active cultures of denial, the executive branch undermines the legislative branch’s intentions.
Time to Look for Where it is Not
The egregious personal and social consequences of these conflicted adjudications are painfully apparent to advocates for the disabled and to their medical advisers and should be foreseeable by all. They are consequences that no caring person, no responsible government, no democratic society, should be prepared to tolerate. And they are consequences that will continue to mount until the systemic problem of conflicted adjudication is resolved. It is time, in short, to eliminate the conflicts of interest, to search (as Dr. Seuss has advised) for where conflicts are not. And where they are not is in initial-claims-adjudicator organizations that are independent of the government and of the executive-branch bureaucracy and that are divorced from the responsibility for funding the benefits they award.
Workers’ Compensation Claims Adjudication
Let me propose a specific solution for getting rid of the conflict of interest in the initial adjudication of disability benefit claims in Ontario’s workers’ compensation system.
Begin by recognizing that in the workers’ compensation system the conflict of interest only impacts in significant measure on a small percentage of claims – not the approximately 200,000 claims the system receives annually, but about 5% of that total – say, 10,000 claims; call these the “complex claims”. It is these claims that are the principal drivers of the WSIB’s costs and thus the ones in which the Board is instinctively motivated to search for reasons to deny or limit benefits. [7]
Next, move the adjudication of those complex claims from the WSIB to an adjudicative organization that is independent of the WSIB and of the government; an adjudicative organization that is not responsible for funding or administering the benefits it grants; an adjudicative organization whose mission is to go without fear or favour wherever the evidence and the law fairly takes it; an organization that might be called “The Workplace Safety and Insurance Complex Claims Adjudicator” (the “CCA”).
Three questions present themselves:
1. How could such an organization be structured so as to ensure its independence?
2. How would it be funded?
3. How would its jurisdiction be defined and, also, constrained?
Structure
1. By statute, create a “Workplace Safety and Insurance Complex Claims Adjudicator” as a stand-alone corporate entity.
2. Provide for that entity to be governed by a Board of Directors comprised of, say, six members selected for appointment – and re-appointment – not by the government but by, respectively, a partisan worker organization (perhaps the OFL), a partisan employer organization (perhaps the Canadian Manufacturers and Exporters Association), and an organization that could be seen to have a non-partisan interest in rule-of-law compliant adjudication of the rights of injured workers and their employers (perhaps the Law Society).
3. Authorize that Board of Directors to recruit, select, appoint and re-appoint both the Board Chair (giving the Board a total complement of seven with the Chair having a casting vote) and the CCA’s Chief Executive Officer.
4. Provide for the Complex Claims Adjudicator’s host Ministry to be the Ministry of the Attorney General, not the Ministry of Labour.
5. Provide for the CCA’s reporting relationship with the government to be between the Board Chair and the Attorney General.
6. Authorize the CCA to administer itself, with all the support services needed for an adjudicative organization integrated within its corporate entity in the ordinary course.
7. Require the CCA’s adjudicators to be full-time employees of the CCA at various levels of qualifications and experience, recruited, selected, employed and promoted – or terminated – pursuant to processes supervised by the CCA Board of Directors.
8. Authorize the CCA to utilize expert advisors or to commission outside expert witnesses, with the use of advisors and the commissioning of witnesses also pursuant to processes supervised by the CCA Board of Directors.
Funding
Provide for the Complex Claims Adjudicator’s annual operating budget to be developed by its CEO, approved by its Board of Directors, and by the Attorney General, and funded by the WSIB’s Accident Fund.
Jurisdiction and Accountability
1. Begin with a statutory definition of “complex claim”. That definition might be developed based on the WSIB’s knowledge of the type of claims that typically become contentious – perhaps claims that predictably lead to permanent impairments. Or it could possibly be defined in reverse terms as, perhaps, all claims that are not self-evidently simple and obvious.
2. Assign the jurisdiction to determine which claims fall within that definition to a branch of the Complex Claims Adjudicator – call it the CCA’s Claims Allocation Branch.
3. Provide for all new claims under the Workplace Safety and Insurance Act to be channeled from the outset to the CCA’s Claims Allocation Branch for review by that Branch against the definition of complex cases, and the allocation by it to either the CCA or the WSIB.
4. Specify that benefit awards by the CCA are binding on, and are to be administered and funded by, the WSIB.
5. Provide for CCA decisions to be appealable by worker or employer parties, first to internal CCA appeal panels and then to the Workplace Safety and Insurance Appeals Tribunal (WSIAT); with WSIAT decisions on law and policy issues binding on the CCA, subject to reconsideration by WSIAT upon the request of the CCA, followed where necessary by judicial review.
6. By statute confirm that, because of its role as the system’s administrator, the WSIB is a party (with the option to be represented by counsel) in every CCA adjudicative proceeding, but limit its rights of appeal to generic issues of general law and policy.
7. Provide that justiciable issues that arise in the course of the WSIB’s administration of CCA-awarded benefits be referred, as they arise, to the CCA for adjudication.
8. Provide that claimants may at any time request reconsideration of the allocation decision, with the reconsideration request to be decided by the Claims Allocation Branch.
END NOTES
[1] “Unjust by Design – Canada’s Administrative Justice System”, UBC Press, 2013, at pp. 11-12 and end-note 22 at pp. 292-293
[2] Ottawa Citizen, 27 October 2010, column by Janice Tibbetts.
[3] Auditor General of Canada 2015 Fall Reports – Report 6 – Canada Pension Plan Disability Program, section 6.102
[4] Ontario Ombudsman, May 2006, Final Report , Investigation into Unreasonable Delay at the Ministry of Community and Social Services’ Ontario Disability Support Program’s Disability Adjudication Unit – “Losing the Waiting Game”.
[5] See the Ontario Federation of Labour (OFL)/Ontario Network of Injured Workers Groups (ONIWG) report, “Prescription Overruled”; IAVGO’s “No Evidence” and “Bad Medicine” reports; the Board’s acknowledged discounting of benefits based on asymptomatic pre-existing conditions in contravention of the thin-skull doctrine; and the financial miracle that led to the elimination of the enormous unfunded liability over the course of a few years that is only explainable by the Board’s enlistment of its adjudicative processes in aid of the Board’s relentless pursuit of its post-2009, imperative cost-reduction mission;, all as referenced in previous posts on this website as linked below.
[6] See the 2015, “Final Report of the Revived Sir William Meredith Royal Commission”, commissioned by Justice for Injured Workers and written by Robert Storey and Carolann Elston, Co-Commissioners, at page 7.
[7] See Professor Paul Weiler’s report to the Ontario Minister of Labout,” Reshaping Workers’ Compensation for Ontario”, November 1980, for the analysis of the Board’s workload at that time, indicating that only about 5% of the, then, 400,000 claims a year would invite a denial by the Board’s initial adjudicators. Current WSIB statistics indicate that the proportion of contentious cases to run-of-the-mill cases remains roughly the same in the modern system.
RE