No Evidence
A Clarion Call for a Public Inquiry
Introduction
IAVGO Community Legal Clinic recently released its 86-page report, “NO EVIDENCE”.[1]
The report is a game-changer. It is a game-changer because it proves, on the basis of unimpeachable evidence, that, under its post-2009 management regime, Ontario’s Workplace Safety and Insurance Board’s adjudicative factual findings are routinely not “evidence-based”.
With this report on the table, a public inquiry into the Board’s post-2009 conversion of its adjudicative culture to a culture of pro-active denial has become a necessity.
CONTEXT
THE WSIB’s TRIAL-COURT FUNCTION
The WSIB has two distinct functions in Ontario’s workers’ compensation system. It is, of course, the system’s administrator, but it is also the system’s trial court – the institution in which claims of entitlement to compensation benefits are heard and adjudicated.
In its role as the system’s trial court, the Board is exercising a judicial function. It is not, however, the traditional judicial function exercised by courts in common law jurisdictions; it is an inquisitorial judicial function. (This is evidenced by, amongst other things, the fact that the Board is directed by its statute to make its decisions based on the “merits and justice” of the case – WSIA, s. 119(1) – and by its unlimited, statutory powers of investigation.)
However, the fact that an adjudicative function is “inquisitorial” does not detract from the judicial nature of that function.[2]
EVIDENCE-BASED ADJUDICATION
In its traditional common-law formulation, a judicial function may be described as the application of applicable law (interpreted in accordance with the established principles of statutory interpretation) to findings of facts made on the basis of the impartial weighing of the relevant evidence presented by the parties, against appropriate standards of proof, and all in a fair hearing.
The difference when the judicial function is an inquisitorial function is that the adjudicator cannot depend solely on the evidence presented by the parties. The burden of proof is ultimately on the adjudicator, not on the parties.
Thus, in its exercise of its trial-court function, the WSIB is duty-bound to ensure that its factual findings extend to all pertinent facts and that those findings are based on evidence that is not only relevant (and not irrelevant) but also sufficient. Its findings of fact (including of medical facts) must be based on evidence that is sufficient to actually satisfy the Board’s adjudicators that each pertinent fact has been proven – or not – as judged against the correct standard of proof.
But while the Board is responsible for ensuring that the evidence is sufficient, it does not follow that the evidence presented by the parties is not of central importance. Evidence presented by the parties is an integral part of the evidence package the Board in its trial-court function must consider. Board adjudicators are not entitled to ignore, or to arbitrarily discount, any relevant evidence that comes to their attention, including especially evidence presented by an injured worker (or by his or her employer).
If the decision-making in the exercise of the Board’s trial-court function is not “evidence-based”, it is not lawful. And it is not, in law, evidence-based if it is not grounded in findings of all pertinent facts based on the impartial weighing of sufficient, relevant – and not irrelevant – evidence, including the evidence presented by the parties.
THE CONFLICT OF INTEREST INHERENT IN THE BOARD’S DESIGN
A central conundrum in the design of the Board’s structure is the egregious conflict of interest that exists between the Board’s role as the system’s trial court and its role as the system’s administrator. As the trial court it generates the costs which as the administrator it must pay.
THE ENHANCED CONFLICT OF INTEREST POST-2009
It is a conflict that was greatly exacerbated when the Auditor General reported in 2009 that the WSIB’s costs had so outstripped its revenues that it had accumulated an unfunded liability which was threatening to collapse the system. In that report, the Auditor General warned the government that unless urgent steps were taken to bring the unfunded liability under control, the government would have to add that liability (then about 12 billion dollars and rising) to the general liability of the province.
The government’s response was to appoint David Marshall to a five-year term as the new President and CEO with marching orders to master the unfunded liability; marching orders that were underscored by the grant to him of an annual bonus in the amount of 20% of his $400,000 annual salary. Each of these annual bonuses was conditional on the approval of the Minister of Labour, and thus conditional, presumably, on the Minister being satisfied that the Board’s performance was matching the government’s pressing need for improved performance on the financial front.
THE POST-2009 TRANSFORMATION OF BOARD FINANCES
Since the regime change in the WSIB’s management that began with Mr. Marshall’s arrival at the Board on January 1, 2010, there has, in fact, been a remarkable turn-around of the Board’s financial position.
At a surprisingly quick pace (in a series of speeches to Employer organizations, in the spring of 2014, Mr. Marshal was already claiming victory), the Board has reduced its unfunded liability by nearly 11 billion dollars (since its high of 14.2 billion in 2011), and has saved another 2.3 billion dollars which it holds in reserve against future liability for occupational health claims. It was also able to voluntarily reduce its revenue stream (the premiums paid by employers) by 6.2% in 2017, with the Board projecting further reductions reaching 50% in three years. [3]
The Board acknowledges that these achievements are due mainly to its success in dramatically reducing its benefit costs. It has reduced the amount it pays in benefits each year by 1.2 billion dollars; cut the amount of NEL benefits each year by a third; reduced the number of 100% loss-of-earnings pensions that are locked-in each year by 80% – to mention only a few of the cost-cutting highlights.
HOW WAS IT DONE?
In his 2013 report on the WSIB’s Benefits Policy Review Consultation Process in 2012/2013[4], Jim Thomas, the independent chair of that Consultation process, advised the Board’s new management that in his opinion the “appropriate vehicle” for addressing changes in entitlement “substantial enough to impact the cost structure” would be legislative amendments to the law.[5] But there have been no cost-reducing amendments to the law. The Board has achieved this complete turn-around of its desperate financial position without the benefit of any change in the law’s definition of benefit entitlement and, indeed, while at the same time absorbing the cost of some legislated, add-on benefits.
Thus, the question fairly arises: how was it done?
The Board itself attributes its dramatic financial success mainly to historic improvements that it claims to have achieved in the proportion of injured workers who return to work and in the timing of those returns.
But based on their own daily experience in dealing with the Board since 2010, injured workers and their advocates have long believed that the Board’s financial miracle is mainly the result of the Board’s enlistment of its adjudicative function in aid of its cost-cutting mission – of the conversion of the culture of its trial-court function from one of reasonable impartiality and fairness to a culture of pro-active denial.
The game-changing nature of IAVGO’s NO EVIDENCE report is to be found in the fact that it proves the latter belief to be justified.
THE EVIDENCE BEFORE NO EVIDENCE
The evidence that a culture of pro-active denial has been the dominating influence in the Board’s trial-court function, beginning in 2010, has been accumulating.
Of course, experienced workers’ compensation advocates consider that the most important of that evidence is to be found in the egregious, unwarranted denials littering their client files.
But, in terms of accessible evidence, the accumulating evidence is to be found in the November 2015, Ontario Federation of Labour (OFL)/Ontario Network of Injured Workers Groups (ONIWG) report, Prescription Overruled, and the subsequent, January 2016, Submissions to the Ontario Ombudsman by the same organizations based on supplements to Prescription Overruled; in IAVGO’s earlier, 2017 report BAD MEDICINE; in the work of the Toronto Star’s investigative journalist, Sara Mojtehedzaden; in the Castrillo class action; and in the recently launched court action by Injured Workers’ Consultants Community Legal Clinic, ONIWG, and others, in which the Board’s determined refusal to apply the law concerning the constitutional invalidity of WSIA chronic stress provisions is being challenged.
THE NO EVIDENCE EVIDENCE
The NO EVIDENCE report is the clincher in this accumulating evidence.
The culture of pro-active denial to be found in the Board’s exercise of its trial court function materializes in a number of cost-avoiding strategies. These include the deliberate application of bad law (the negation of the thin-skull doctrine is one prominent example; the persistence in applying constitutionally invalid chronic stress statutory provisions is another), and the application of standards of proof higher than specified by the Act, to name only two of those strategies.
But the strategy on which NO EVIDENCE is principally focused is the Board’s abandonment of evidence-based fact finding.
And the report is the game-changer because, as was said at the outset of this paper, on the basis of unimpeachable evidence it confirms that the WSIB’s decisions in the exercise of its trial-court function are routinely not “evidence-based”.
NO EVIDENCE does not rely on anecdotal evidence – does not depend on stories told by individual injured workers or by their advocates whose self-interest and evident partisanship are always grounds for doubt. Instead, it relies on the objective views of the Workplace Safety and Insurance Appeals Tribunal as those are found in appeal after appeal, after appeal.
NO EVIDENCE records the results of IAVGO’s in-depth review of all the appeals decisions published by WSIAT in 2016.
These are appeals in which, in the course of a full hearing, the Tribunal has had the opportunity of assessing the Board adjudicative decisions in light of the evidence available to the Board’s adjudicators. In these appeal decisions, the Tribunal has published fully reasoned conclusions concerning the merit and appropriateness of those adjudicative decisions, and NO EVIDENCE tells us what those conclusions are.
And the point of overriding importance is that no one can doubt the reliability of those conclusions.
The Tribunal’s independence, expertise, and competence, and its reputation for impartial judgments are widely acknowledged. So when, after a full hearing, the Tribunal concludes, for instance, that a Board adjudicator in a particular case has denied a worker’s entitlement to benefits on the basis of no evidence, or on the basis of arbitrarily disregarding relevant evidence, that is a decision one can take to the bank. If the Tribunal has found that that happened, then that happened.
NO EVIDENCE reports that, in the appeals the Appeals Tribunal decided and published in 2016, the Tribunal found 629 occasions when, in fact, that, or something like that, happened; 629 instances of Board entitlement decisions that were not evidence-based.
Thus, there is now unchallengeable evidence that the Board’s relentless push for cost reductions – its creation of an adjudicative culture of pro-active denial – has at the very least corrupted its fact-finding function on over six hundred occasions.
Moreover, as shocking as that number alone is, it is, of course, clearly evidence of something much larger.
It is well known, for instance, that, by far, most of the Board’s entitlement denials are not appealed. Appeals require financial and emotional support and a rights-awareness that not all injured workers have. Accordingly, what the Appeals Tribunal discovers in the appeals it hears is always only a small part of the actual story. Moreover, 629 is only the number of non-evidence-based Board decisions discovered by the Appeals Tribunal in one year of its work.
Because of backlogs at the Appeals Tribunal and procedural hurdles at the Board, one knows that appeals decided by the Tribunal in 2016 will have involved entitlement decisions made by the Board in roughly the period from 2013 to 2014. And there is no reason not to expect that the Board was making the same proportion of non-evidenced-based decisions throughout the six-year period from, say, 2011 (by which time the cost-cutting mission’s influence on the Board’s trial-court function would presumably have taken hold) through 2016.
If that were true, then one would expect to find that the appeal decisions the Tribunal will publish in 2017 and 2018, and those that it has already published in, say, 2013, 2014 and 2015, will identify in each of those years approximately the same proportion of non-evidenced-based Board decisions as were identified in its appeal decisions in 2016.
It is a hypothesis that could be tested by anyone with the resources to have experienced counsel read and assess and categorize the appeal decisions published by the Tribunal in each of 2013, 2014, and 2015 and in 2017 and 2018 (and 2019 if the situation were allowed to persist that long) – resources that, incidentally, could be brought to bear by a Public Inquiry.
Given, then, the implications of the typically small proportion of Board denials that are appealed all the way to the Appeals Tribunal, and the likelihood that a similar level of non-evidence-based decisions would be found in Appeals Tribunal decisions published in six other years, the 629 adjudicative decisions the Appeals Tribunals found in the appeals it heard in 2016 not to have been evidence-based may be reasonably taken as showing the existence during the period 2011 to 2016 of non-evidence-based Board decisions numbering in the thousands.
Moreover, there is no reason to think that the Board’s non-evidence-based adjudicative strategies will not continue until the government intervenes. Thus, until the results of a public inquiry require the Board to revert to a culture of impartial adjudication, NO EVIDENCE projects large numbers of non-evidenced-based decisions every year going forward.
CONCLUSION
As was said at the outset, NO EVIDENCE is, indeed, a game changer. It presents a clarion call for a Public Inquiry that cannot be responsibly ignored.
RE
END NOTES
[1] NO EVIDENCE was written by Maryth Yachnin, IAVGO staff lawyer, and the extensive review of WSIAT’s 2016 decisions on which it is based was accomplished with the help of Pro Bono Students Canada and eight volunteer law students. The final report (86 pages) may be found at: http://iavgo.org/wp-content/uploads/2013/11/No-Evidence-Final-Report.pdf, and the 234 page Chart of all the cases reviewed (with quotations from the decisions) may be found at: http://iavgo.org/wp-content/uploads/2013/11/IAVGO-March-10-2017-WSIAT-2016-review-chart.pdf
[2] Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350, at paras. 50-51 (“there are two types of judicial systems …”).
[3] The author has relied for the analysis of the Board’s financial data on the work of Carmine Tiano, Ontario Building Trades, in his paper “Hard Times for Injured Workers: WSIB by the Numbers 2009-2015” and the work of the law firm Fink and Bornstein as reported in its August, 2017 Newsletter.
[4] WSIB Benefits Policy Review Consultation Process, Report to the President and CEO of the WSIB, Jim Thomas, Independent Chair, May 2013.
[5] Ibid, page 7.