The Issue and The Context

The Board’s post November 2014 operational policies in which the level of permanent impairment  resulting from a workplace injury is to be determined by discounting for asymptomatic pre-existing conditions constitute an arbitrary and unlawful repudiation of the thin-skull doctrine in Ontario’s workers’ compensation system.

The law governing the application of the thin skull doctrine to claims for benefits under the Ontario Workplace Safety and Insurance Act (WSIA) may be found described in a Memorandum by the author entitled “The Thin Skull Law in Workers’ Compensation Claims” which is dated September 19, 2016 and was offered to interested parties through my post of September 21, 2016, the link for which may be found below.

The repudiation of the thin skull doctrine made its first appearance in the Ontario workers’ compensation system in or about January 2012 when the WSIB’s decision-makers began the practice of discounting NEL benefits whenever asymptomatic pre-existing conditions were seen to be contributing to the impairment.  That repudiation was finally adopted as official WSIB policy in a series of new or amended Operational Policies published after November 2014 and principally on November 3, 2014.

There are five, November 2014 WSIB Operational Policy documents in which the Board’s decision-makers are given their instructions respecting limiting or denying WSIA benefits when asymptomatic pre-existing conditions are contributing to the dimensions of a permanent impairment.

In another memorandum, “Tracking the WSIB’s Thin Skull Policy”, also dated September 19, 2016, the author tracked the details of these instructions line-by-line through the text of each of these documents, and attempted to measure each particular instruction against the principles of the thin skull doctrine.   This memorandum was also offered to readers of the website in my post of September 21, 2016, the link for which is the same as referred to above.

It is apparent from the latter analysis that many of the instructions in these Operational Policies concerning benefit entitlement for permanent impairments are in direct conflict with the thin skull doctrine, are thus not authorized by the WSIA and, being ultra vires the Board’s powers, are therefore invalid.

The Board’s policy decision to dispense with the thin skull doctrine came to the attention of the injured worker community initially through the Board’s discounting of NEL Benefits on the basis of asymptomatic pre-existing conditions.  But the policy’s implications for injured worker benefits is considerably more significant for the system than just its impact on NEL benefits.  The problem is that it implicitly reflects a new and restricted interpretation of the WSIA’s “resulting from” language – language that is at the heart of the Act’s definition of all of the benefits attendant on permanent impairments.

If that interpretation were allowed to stand in the NEL decision-making, it may be expected to bleed over into the discounting of all benefits whenever asymptomatic, pre-existing conditions are seen by the Board to be contributing to the extent of the post-accident impairment, and clearly has already done so.

The legal issue is the interpretation of the Legislature’s intent when in its definitions of benefit entitlements in the WSIA it uses the phrase “resulting from”.

That phrase, or some version of it, appears in the following sections of the Act.

THE WSIA:

2.(1)  (Definitions) …

“impairment” means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. …

“permanent impairment” means “an impairment [that results from an injury] that continues to exist after the worker reaches maximum medical recovery”;

33. (1) A worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury and is entitled to make the initial choice of health professional for the purposes of this section.

41. (1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

41. (2) Based on the results of the assessment, the Board shall decide if a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury.

43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, …

(d) the day on which the worker is no longer impaired as a result of the injury.

46.(1) If a worker’s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss.

46.(2) The amount of the compensation is calculated by multiplying the percentage of the worker’s permanent impairment from the injury (as determined by the Board) and …

47.(1) If a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment.

48. (1) This section applies when a worker’s death results from an injury for which the worker would otherwise have been entitled to benefits under the insurance plan.

118. (2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters: …

7. Whether loss of earnings has resulted from an injury.

8. Whether permanent impairment has resulted from an injury, and the degree of the impairment.

In the determination of the amount of compensation owed to accident victims, the courts, WSIAT (and prior to January 2012 the WSIB) have consistently interpreted the phrase, “results from” in accident benefit cases as denoting the Legislature’s intent that the thin skull doctrine – the must-take-one’s -victims-as-one-finds-them-doctrine – applies.  See the Memorandum on the thin skull law referred to above and particularly the description in that memorandum of the 2008, Ontario Court of Appeal decision in Monks.

The Board’s new Operational Policies concerning benefit entitlements for permanent impairments ignore that law and now, effectively, grant entitlement only for the degree of permanent impairment that the work-place injury would have caused in the opinion of the Board’s adjudicators had the worker’s pre-injury physical and mental condition been what the Board would consider “normal” – the antithesis of the thin skull doctrine.

The purpose of this article is to examine how this historic debasement of workers’ compensation benefits in Ontario can be brought before the courts and stopped.  It has been three years since the policies were formally published and their depredation of injured worker benefits continues, unchallenged[1] and, in the public eye, largely unnoticed.

THE LITIGATION DILEMMA

The formal, statutory procedure for challenging the lawfulness of Board policies is to be found, of course, in sections 126(4) to 126(8) of the Act.

Section 126(4) directs that, when the Tribunal is of the view that a Board policy that is determinative of an issue in an appeal before it is inconsistent with or not authorized by the Act, the Tribunal is to refer that opinion, complete with reasons, to the Board for review, meanwhile putting its decision on the merits of the appeal on hold.  The Board is then required under section 126(8) to deliver its own reasoned opinion to the Tribunal concerning the lawfulness of that policy with a direction to the tribunal to “determine” the appeal in accordance with that opinion.

The path to the courts pursuant to that procedure would appear to be by way of an application for a judicial review of the Board’s direction, or perhaps through an application for judicial review of the Tribunal’s final decision on the merits in which the Board’s direction has been followed.

I am assuming, of course, that the Tribunal would find the policy unlawful and that the Board would not agree with the Tribunal’s opinion.

So that’s the path to the Courts that the Act now provides:  administrative referral/administrative review/administrative direction/perhaps administrative decision/judicial review.

It is not, however, a path that is compatible with the public’s interest in the administration of justice in the workers’ compensation system.  This is self-evident given the fact that three years have passed since the impugned policies were first published without anyone putting a single foot on that path; not a single foot, even though the Board’s pillaging of the system through the unauthorized repudiation of the thin skull doctrine has been perfectly clear from the beginning and continues unabated with thousands of workers being victimized by those policies every year.

What are the problems with that path?

To begin with there is the built-in delay attendant on the fact that any court review of the issue of the lawfulness of a Board policy must await the issue being first presented to the Tribunal in the context of the hearing of an appeal in a particular case in the ordinary course.  With the ubiquitous backlogs at the Tribunal – indeed, at any tribunal – a case presenting the issue of the repudiation of the thin skull doctrine could not have reached the Tribunal in the best of circumstances until late 2016 – two years after the policies were first published and implemented by the Board.  The section 126 procedures thus impose what is effectively a statutory, structural waiting period of unwarranted length during which a Board’s unlawful adjudication of benefits can continue without interruption.

The procedures also present an indeterminate structure that is inimical to the public interest in that they make the timing of a court challenge to the lawfulness of a Board policy dependent on a series of happenstances:

• First, on the Tribunal happening to feel it necessary to address the lawfulness issue in a particular case.  (And as we have seen the Tribunal is currently apparently not anxious to confront the lawfulness issue of the policies that repudiate the thin skull doctrine if that confrontation can be avoided.  See the author’s previous post on the missed opportunities so far.)
• Second , on the injured-worker appellant in that particular case happening to be a person who has the awareness of rights, financial means, and emotional strength necessary for anyone considering a challenge of a section 126(8) direction through judicial review;
• And, third, on that injured-worker happening to elect to make that challenge.

So, here we are three years into the era of the Board’s official policy of discounting for asymptomatic pre-existing-conditions and, still, there has been no occasion on which the Tribunal has felt the need to confront the legality of that policy.  Neither is there any guarantee that when it does it will be a case in which the appellant injured worker is willing and equipped to initiate the judicial review of the Board’s section 126(8) direction on which the test of the lawfulness of the policy is ultimately dependent.

Meanwhile, the victims pile up.

WHAT CAN BE DONE?

One way of cutting through the amorphous procedural landscape defined by section 126 in search of a timely, systemic correction would be for a public-interest applicant to by-pass WSIAT altogether and go straight to the Divisional Court seeking a declaration that the Board’s pre-existing conditions policy is inconsistent with the WSIA and therefore unauthorized and invalid.

The public-interest applicant could be an injured workers’ association such as ONIWG, or an injured workers’ clinic such as IAVGO or IWC, or a union organization such as the OFL – organizations that would easily satisfy the SCC’s criteria for public-interest standing as set out in Downtown Eastside. 

It is an application that could be usefully modeled on a comparable application approved by the Federal Court of Appeal in its June 9, 2016, decision in Lukács v. Canada (Transportation Agency), 2016 FCA 174 (CanLII)

In Lukács the Federal Court of Appeal, relying on Downtown Eastside, ruled that one Gabor Lukács, a well-known activist  advocate for airline passengers’ rights, had standing as a public interest litigant to seek judicial review of the Canadian Transport Agency’s decision respecting a Delta Airline policy concerning the sitting of obese passengers.  Most importantly, Mr. Lukács’  standing was not affected by the fact that he himself was not obese, had not been personally affected by the policy, and did not purport to represent anyone who had been personally affected.

Following the Lukács precedent would avoid the problem of involving an individual injured worker as one of the applicants in the litigation and expecting that worker to sustain the resulting delay to his or her own benefits while the litigation made its way through the judicial system to a final result.

But What About the Prematurity Doctrine?

Any such application would, of course, have to confront and surmount the judicial review doctrine of “prematurity” – the doctrine that holds that courts will not exercise their discretion to entertain applications for judicial review of administrative decisions unless the procedures available in the administrative system – in this case, the section 126 procedures – have been exhausted.  Thus, a public-interest application for judicial review of the policy will have to rely on persuading a court that the Board’s abrogation of the thin skull doctrine has created a situation in which the interests of justice demand that the courts exercise their discretion to set aside the prematurity doctrine and hear a judicial review application before the administrative system’s own procedures have been exhausted.

It is true that the courts rarely do allow applications for judicial review to proceed until applicants have exhausted the process available to them in the administrative system.  But it is also true that the courts have always recognized that they do have a discretion in the matter.  And the public interest arguments in support of the courts exercising that discretion and waiving the prematurity doctrine in respect of a direct challenge to the lawfulness of the Board’s repudiation of the thin-skull doctrine are impressive, and so self-evident that I will not take the time to elucidate them here.

And, even if such an application were dismissed through the court’s enforcement of the prematurity doctrine in the light of the section 126 procedures, the application would still have served to imbed a public monument to the existence of the issue, and to the worker community’s determination to challenge the policy before the courts when the first opportunity arises.

One final note: This article has not included a class action as one of the possible litigation strategies because of the difficulties, procedural complications, and delays that one hears from professional colleagues are inescapable in such actions.  What is most needed, as a matter of first priority,  is for the Courts to instruct the WSIB that it cannot abrogate the thin skull rule absent legislative amendment of the WSIA, and that can be accomplished without the complications of a class action.

RE

END NOTES

[1] The practice of ignoring the thin-skull doctrine that the Board inaugurated in 2012 and pursued until the publishing of official policies in November 2014 has been challenged in the Castrillo class action, but the lawfulness of the published official policies remains unaddressed. The Board’s problem with the pre-November 2014 practice was that it was clearly inconsistent with the then existing policies, as WSIAT confirmed on many occasions.