Workers' compensation trends for 2021

by Jason Mandlowitz, President of Mandlowitz Consulting and Paralegal Services in London, Ontario. 

Much of our attention since March 2020 has focused on COVID-19.  The Ontario Workplace Safety and Insurance Board (WSIB) has been part of the government’s $1.9 billion employer support program.  The WSIB developed new COVID-19 adjudicative guidelines and defined a flexible service approach where claims are addressed on a case-by-case basis. As of February 5, 2021, the WSIB has allowed 14,823 claims while 190,000 businesses accessed the financial relief program. 

At the same time, other important systemic changes are occurring, and these should not be disregarded. The WSIB publishes an annual policy agenda covering system-wide and focused initiatives.  Broader workplace safety and insurance trends are suggested below.

1. WSIB Policy Agenda 2021

The WSIB Policy Agenda for 2020 and 2021 list a number of priority areas including:

•  responding to COVID-19;
• providing operational implementation of the Rate Framework;
• revising RTW policies which were published in 2020;
• developing an Occupational Disease Strategy in response to the 2019 Value for Money Audit of the Occupational Disease and Survivor Benefits Program and external review;
• reviewing the Government’s Operational Review of the WSIB; and
• reviewing the 2019 Medical Cannabis policy.

2. Presumptive Legislation

The Workplace Safety and Insurance Act (WSIA) allows compensation for certain work-related issues based on “presumption”.

Section 13(2) of the WSIA states that if an accident arises out of the worker’s employment it is presumed to have occurred in the course of the employment unless the contrary is shown.  Similarly, if the accident occurs in the course of employment it is presumed to have arisen out of the employment unless the contrary is shown.

Schedule 3 and 4 of Regulation 175/98 provide an occupational disease presumption.  In the case of Schedule 3 the presumption is rebuttable. 

Section 14(6) of the WSIA provides that PTSD is presumed to have arisen out of and in the course of employment unless shown to the contrary.

Section 15.1(1) of the WSIA provides a firefighter’s heart injury is presumed to be a personal injury arising out of and in the course of employment unless the contrary is shown.

Other jurisdictions have applied “presumption” to COVID-19 exposures.

In August 2020, British Columbia became the first province to add COVID-19 to its list of occupational illnesses. Employees who contracted COVID-19 and made a claim to WorkSafe BC did not have to prove it occurred at the workplace if they’re jobs put them at an increased risk for exposure.

On September 17, 2020, California created a rebuttable presumption that an employee’s COVID-19 illness or death arose out of and in the course of employment and where there was a COVID-19 outbreak at a specific place of employment.

New York state is now considering presumptive workers’ compensation benefits for fire truck mechanics, school teachers and correction service workers.  The legislature is also debating A.B. 1770 which, if passed into law, would hold that death due to opioid overdose or overuse (resulting from a work-related accident) was related to the original injury and death unless proven to the contrary.

Advocacy efforts are underway in Ontario seeking both a legislative presumption for COVID-19 claims to include persons who come into contact with the public while performing their work duties and to extend WSIB coverage to workers in residential facilities.

3. Health Care

Part IV- Health Care of the WSIA establishes the legislative standard for entitlement to health care.  The Act requires the WSIB arrange and pay for health care or related services provided under the insurance plan.

With COVID-19 significant health care changes have occurred largely out of necessity. Perhaps the most important change is the expansion of telemedicine.  This has involved an increase in telephone calls to health care providers and virtual medical assessments, while there has been a decrease of in-person appointments.  The requirement for a medical certificate(s) to diagnose and confirm a work-related injury/illness has been temporarily suspended in Ontario during COVID-19.

In the short term, that the continuation of telemedicine challenges many of the established legislative provisions and WSIB policies addressing medical causation. Temporary or permanent suspension of medical certificates challenges disability management best practices and some collective agreements. 

At the dissolution of the Ontario Legislature, Bill 200 was introduced and referred to a Standing Committee.  Bill 200 proposed to permanently remove the requirement for an employee to produce a medical certificate.  While retaining the right of employers to make an employee show evidence they were entitled to sick leave, employers would not be permitted to require a certificate from a qualified health practitioner.

4. Meredith Principles

Since the 1910 Meredith Commission on workmen’s compensation and 1914 Workmen’s Compensation Act a core set of principles have been accepted as a historical compromise between employers and workers. 

The Meredith principles are recognized to be:

• collective liability and employer funding,
• no-fault compensation,
• income replacement,
• no right of action, and
• independent arms-length administration.

Meredith argued that coverage should not be mandatory for all employers.

Arguably, the evolution of the workplace safety and insurance system has led to other principles being added to the compensation scheme. These include, but are not limited to, prevention of workplace injuries and diseases, presumptive coverage for certain occupational diseases, early/safe/timely return to work, employer experience rating, and separate independent appeal bodies.

COVID-19 has challenged the no-fault compensation principle.  COVID-19 exposure and the need for objective medical causation have created challenges for the compensation scheme resulting in the debate about adding COVID-19 to the list of occupational diseases and “presumption”.

More broadly, it is arguable whether the no-fault compensation principle has been eroded.

Section 17 of the WSIA states that if an injury is attributable solely to the serious and wilful misconduct of a worker no benefits shall be provided unless the injury results in death or serious impairment. 

Decisions of the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) have enhanced our understanding of the application of this section and WSIB policy.  WSIAT decisions have stated that Section 17 clearly contemplates that a worker who commits an act of serious and wilful misconduct may still be considered to be in the course of employment and that a worker’s benefit entitlement should not necessarily be precluded where a worker is at fault.  WSIAT case law generally holds that a worker’s conduct must be egregious in nature to break the employment nexus and must go beyond carelessness or recklessness taking on the intent to cause harm. WSIAT has found that breaching a workplace safety rule is not sufficient for the application of Section 17, and for serious and willful misconduct to be determined to have occurred, the worker’s breach would have to be deliberate and intentional with an appreciation of the danger associated with a breach of the rule.

What results is a gray area when the WSIA and OHSA are considered together. 

Part III – Duties of Employers and Other Persons of the OHSA establishes the duties of the workplace parties.  Section 25 and 26 addresses employers, Section 27 addresses supervisors and Section 28 addresses workers. The OHSA, therefore, places reciprocal obligations and penalties on the workplace parties in the event of breach of the legislation.

2021 provides an excellent opportunity for dialogue on these issues in order to clarify their application and prevent unnecessary penalties.

5. Levels of Compensation, Premiums and Coverage

Since 2010, the workplace safety and insurance scheme has needed to address issues of appropriate coverage and compensation benefit levels. 2021 affords an opportunity to return to the Meredith principle of fair and affordable compensation.

Questions linked to worker coverage need to be asked, such as:

• Should the maximum or cap on benefit levels and insurable earnings used to calculate employer premiums be removed and replaced with actual earnings?
• Should wage replacement benefits be set at a statutory rate for the full duration of a claim or should benefits lower or increase with claim persistency?
• Should worker benefit levels be eligible for a financial top-up to 100% from non-WSIB income sources?
• For low earning workers should the minimum level of benefits be set at 100% of the provincial minimum wage?
• Should worker’s pensions based on levels of impairment be reviewed to ensure awards more accurately reflect level of disability?
• With changes to the nature of work and especially with the advent of remote work, independent or self-employment and the gig/on-demand economy, should individuals be recognized to be entrepreneurs or covered as workers under the WSIA?

The impact of COVID-19 has resulted in recommendations for extending WSIB coverage for uninsured health care workers in residential facilities and volunteers. 

The Workplace Safety and Insurance Board Operational Review Report (authored by Linda Regner-Dykeman and Sean Speer) recently released by the Ministry has recommended the WSIB should move to an “exclusionary model” for coverage on a go-forward basis for new employers and industries (Recommendation 6) and the Government should extend mandatory coverage to developmental support workers and those working in residential care facilities (Recommendation 7).  The report further recommended the consolidation of the current Schedule 2 into the collective liability framework with a
transition plan (Recommendation 8). 

6. Mental Health Benefit Entitlement

The WSIA and WSIB policy articulates that benefit entitlement must be work-related and have focused largely on physical injuries and occupational diseases.  In recent years, the WSIB has been asked to address complicated psychological conditions arising from psycho-traumatic disability and mental stress.  Post COVID-19 the WSIB will certainly be required to address residual mental health issues.  These will take the form of depression, anxiety, chronic fatigue, PTSD, etc.  

2021 may very well be the year that mental health claims begin to overwhelm all other claim types.

Employers have learned that all aspects of a mental health claim are far different from physical and occupational disease conditions. Nowhere is this more evident than in concussion and mild traumatic brain injury claims. 

2021 and beyond will require the WSIB to respond and establish an effective/efficient adjudicative, medical assessment and treatment, and rehabilitation model which emphasizes expedited care from qualified medical professionals (psychiatrists and psychologists) in a timely manner. A WSIB Program of Care for Mental Health claims would also be helpful. 

Mental health is not the sole responsibility of a WSIB.  However, given the significant mandate of the WSIB in claims administration and management in 2021, the WSIB must become a leader in addressing worker mental health needs. 

Jason Mandlowitz is President of Mandlowitz Consulting and Paralegal Services in London, Ontario.  Jason brings thirty years of experience in the fields of workplace safety and insurance, occupational health and safety, return to work, absence and disability management, and other related human resource areas. 

Jason is formerly Vice President of Consulting Services at Hicks Morley Hamilton Stewart Storie LLP.  He served as the first Director of the Office of the Employer Advisor and as a Senior Director at the Workers’ Compensation Board with responsibility for stakeholder consultation and policy implementation.  Since 1993, Jason has provided consulting and paralegal services to private and public sector employers.   Jason is certified as a Paralegal by the Law Society of Ontario and holds certificates in First Aid/CPR and Mental Health First Aid.