In May of 2019, an external review of the Ontario Workplace Safety and Insurance Board (WSIB) was initiated by the Ontario government. The purpose of this external review was to provide the government with an analysis of the operations of the WSIB and make comparisons to other jurisdictions and insurance agencies to identify best practices.
On November 6, 2020, the Ministry of Labour, Training and Skills Development (MOLTSD) released the final report, outlining 25 recommendations for the WSIB to increase effectiveness, efficiency, and sustainability of their operations. The recommendations focus on legal, operational, and policy changes. It also includes some adjustments that will allow the WSIB to better serve both the employers and the employees of Ontario, while simultaneously developing a more sustainable financial state. Here is our summary of those recommendations, followed by our comments:
Summary of Recommendations (As stated in the Final Report. For full report, please click here):
- The government should adopt a regulation that prescribes a sufficiency ratio corridor of 115% and 125% for the WSIB for the five-year period between 2020 and 2025.
- The regulation should also establish the parameters for surplus distribution, including prescribing the WSIB to consider surplus distribution when the insurance fund exceeds 115% and require it distributes surpluses if the sufficiency ratio hits or exceeds 125%.
- The government should amend the Workplace Safety and Insurance Act to clarify that any legal or policy changes that impose costs on the WSIB should come into effect in the year in which the Workplace Safety and Insurance Board can account for these costs in its rate-setting process.
- The Workplace Safety and Insurance Board should develop a predictive modelling capacity within the organization as part of its effort to improve its pricing and rate-setting processes.
- As part of the transition to a new rate framework, the Workplace Safety and Insurance Board should establish the position of Industry Class Manager with whom employers, industry associations, and unions can engage about their issues and circumstances related to specific industry classes.
- The Workplace Safety and Insurance Board should move to an “exclusionary model” for coverage on a go-forward basis for new employers and industries. This would not affect currently non-mandatory covered industries, but it would apply to any new firms or industries operating in the province.
- The Workplace Safety and Insurance Board and the government should extend mandatory coverage to developmental support workers and those working in residential care facilities.
- The Workplace Safety and Insurance Board and the government should consider consolidating all Schedule 2 employers in the collective liability framework. Moving in this direction would require a transition plan for industry classes, premium rates, and Schedule 2 employers who may have ongoing claims. It would also involve consultations on the necessary legislative and regulatory changes, as well as the appropriate timeframe for implementation.
- The Workplace Safety and Insurance Board should modernize the claims process by expanding digital submission of documents and enabling individuals to register online in order to monitor the status of their files through a secure personal portal as soon as possible.
- The Workplace Safety and Insurance Board should move to a self-service model for no-lost-time claims, in particular, and simple claims in general, using a system of online claims and fast-tracked adjudication.
- The Workplace Safety and Insurance Board should set separate targets for processing timelines for no-lost-time claims and lost-time claims.
- The Workplace Safety and Insurance Board should continue to adjust and refine its process for claims adjudication to ensure that claims are being managed by the right people at the right time.
- The Workplace Safety and Insurance Board and the government should consider consolidating the Workplace Safety and Insurance Board’s multiple layers of appeal into a single appeals function within the WSIB, before appeals move to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Moving in this direction would require consideration of the format and design of the new appeals function within the Workplace Safety and Insurance Board, timelines for appeals decisions, human resource issues, and possible incremental resources to the WSIAT to address any resulting increases in its appeals caseload.
- The Workplace Safety and Insurance Board and Workplace Safety and Insurance Appeals Tribunal should establish a new Quality Table to identify and anticipate trends through data analytics and actual case outputs, in order to better inform adjudication guidelines and decision-making.
- The Ministry of Labour, Training and Skills Development should work with the Attorney General to ensure that legal representatives (including paralegals) participating in the occupational health and safety system are meeting a high ethical standard and properly serving their clients.
- The Workplace Safety and Insurance Board should maintain a statistically relevant number of audits related to claim suppression through the implementation of the new Rate Framework.
- The Ministry of Labour, Training and Skills Development should increase budget funding for the Office of the Worker Adviser and the Office of the Employer Adviser to better serve workers and employers.
- The government should amend the Labour Relations Act to clarify that labour unions must provide representation on behalf of their members in the occupational health and safety system, including the Workplace Safety and Insurance Board.
- The Office of the Chief Prevention Officer should work with the Workplace Safety and Insurance Board and the Ministry of Labour, Training and Skills Development to coordinate better data collection and analysis – including developing a set of future-oriented indicators to better anticipate workplace trends.
- The government should change its funding model for prevention-related programming by providing dedicated funding to the health and safety associations for specialized training and services and launching a competitive funding pool for more general health and safety services and training.
- The government should enter into three to five-year transfer agreements with the Health and Safety Associations.
- If the government changes the funding model for prevention-related programming, it should consider increasing the overall funding available for these activities.
- The WSIB board of directors should regularly prepare and provide a list of required board competencies to the minister to help inform appointment decisions.
- Appointment to the Workplace Safety and Insurance Board’s board of directors should have staggered expiration dates to ensure that several directors’ terms to not expire at the same time.
- The Workplace Safety and Insurance Board and the government should work with an independent adviser (such as Infrastructure Ontario) to conduct a review of the organization’s real property portfolio, including how the Workplace Safety and Insurance Board manages it, in order to identify possible efficiencies.
Commentary on the Recommendations
These recommended changes have been long awaited and support what stakeholders have been requesting for years. Many of these recommendations are obvious, with an external review bringing about the opportunity for change. The modernization of the claims process to a more efficient model is a valuable concept, yet it is one that did exist in the 70’s and 80’s and resurrecting that type of streamlined adjudication, coupled with enhanced technology, should be welcomed. Even prior to the release of the report, the WSIB had begun to address technology related limitations and modernization with efforts to upgrade and expand their systems access through the online portal; providing users with the ability to upload documents, view entitlement and benefits, update information, and access clearance letters, along with other functionality. Certainly, the COVID-19 pandemic has only acted to reinforce the need for technology upgrades, with further changes towards modernization being initiated or expedited in the implementation plan.
Generally, the recommendations provided by the review team align with and support the WSIB’s initiatives regarding the modernization of experience rating programs; the elimination of the unfunded liability; and the establishment of a sound or sufficient financial plan/model. On the other hand, some of the recommendations, such as the consolidation of Schedule 2 (self-insured status) into the collective liability group or moving towards an exclusionary application model (e.g. 100% mandatory coverage), represent a substantive departure from the existing and historical legislative framework. Although some of these recommendations appear to be relatively simplistic to initiate, many are quite complex, involving substantial negotiations with stakeholders to ensure a level playing field and/or substantial amendments to the Labour Relations Act and the Workplace Safety and Insurance Act, with multiple levels of approval to enact these changes.
The recommendation of changing the WSIB appeal system into one single appeals function requires clarity, as this is the current approach, and any tinkering should involve the stakeholders. The suggestion of a Quality Table (a dialogue with WSIAT and WSIB) to enhance consistent and quality decision making is self-evident and should have been previously implemented to reinforce consistency.
Finally, the suggestion of Industry Class Managers is an applauded consultive approach for stakeholders. Clear parameters must be defined however, to understand how they will be used, their goals, authority, and how they will benefit stakeholders, rather than simply adding a layer of bureaucracy.
Although the report hints at the urgency of implementing these recommendations, at this point the WSIB has not indicated any time frame for implementation nor have they confirmed that they will be accepting all recommendations. We believe that many of these recommendations are long overdue, and we hope that this report will positively impact WSIB practices and establish a more efficient system for all stakeholders.
Michael Mitchell, Senior Consultant and Paralegal
With over 30 years of experience with Workers’ Compensation legislation and consultation, Mike’s knowledge has resulted in significant cost recovery/avoidance achievements, as well as successful WC program design and implementation.
Mark Gordon, Director – Workers’ Compensation
Mark has over 25 years’ experience in workers’ compensation as an employer consultant and paralegal in a wide range of industries. His knowledge of legislation, policy and WC practice, WC program design, implementation, training, and audit has successfully guided clients in WC related matters and resulted in significant cost recovery/avoidance achievements. He also has a proven record of success with employer representation at Appeals and the Tribunal.
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Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.