On November 6, 2020, the Ontario Ministry of Labour, Training and Skills Development (“MOL”) released the final report on the review of the Workplace Safety and Insurance Board (“WSIB”). The review was led by Special Advisors Linda Regner Dykeman and Sean Speer.
They were tasked with analyzing financial oversight at the WSIB, including the sustainability of the insurance fund and controls over it, the WSIB’s administrative structure, including the effectiveness of the WSIB’s governance model and leadership structure, and the effectiveness and cost efficiency of the WSIB’s operation, including comparisons to other jurisdictions and private sector insurers.
Their final report makes 25 recommendations to transform the WSIB:
- The government should prescribe a sufficiency ratio corridor of 115% and 125% for the WSIB for the five-year period between 2020 and 2025. The sufficiency ratio measures whether there are sufficient funds to meet the WSIB’s future project claim payouts.
- The government should establish parameters for surplus distribution. The WSIB should consider surplus distribution when the insurance fund exceeds 115% and must distribute surpluses if the sufficiency ratio hits or exceeds 125%.
- The Workplace Safety and Insurance Act, 1997 should be amended so that any legal or policy changes that impose costs on the WSIB come into effect in the year in which the WSIB can account for these costs in its rate-setting process.
- The WSIB should develop 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 WSIB 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 WSIB should move to an exclusionary model for coverage on a go-forward basis for new employers and industries. This means coverage would be universal for new employers and industries with few if any exclusions. This would not affect current non-mandatorily covered industries.
- The WSIB and the government should extend mandatory coverage to developmental support workers and those working in residential care facilities.
- The WSIB 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 WSIB 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 WSIB should move to a self-service model particularly for no-lost-time claims generally for all simple claims. This would require using a system of online claims and fast-tracked adjudication.
- The WSIB should set separate targets for processing timelines for no-lost-time claims and lost-time claims.
- The WSIB 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 WSIB and the government should consider consolidating the WSIB'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”). This would require consideration of the format and design of the new appeals function within the WSIB, possible changes in timelines for appeals decisions, human resource issues, and increased funding to the WSIAT to address any resulting increases in its appeals caseload.
- The WSIB and WSIAT 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 Minister 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 WSIB should maintain a statistically relevant number of audits related to claim suppression through the implementation of the new Rate Framework.
- The MOL should increase funding to 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, 1995 to clarify that labour unions must provide representation on behalf of their members in the occupational health and safety system, including the WSIB.
- The Office of the Chief Prevention Officer should work with the WSIB and the MOL 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. Currently, transfer agreements are limited to one year renewals.
- If the government changes the funding model for prevention-related programming, it should consider increasing the overall funding available for these activities.
- The WSIB’s board of directors should regularly prepare and provide a list of required board competencies to the Minister to help inform appointment decisions.
- Appointments to the WSIB's board of directors should have staggered expiration dates to ensure that several directors’ terms do not expire at the same time.
- The WSIB 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 WSIB manages it, in order to identify possible efficiencies.
The WSIB has reported that a number of the recommendations included in the report have already been implemented, including adding a number of online services that improve services for employers, workers and health care providers. Some of those changes include the ability to upload claim-related documents, tracking individual claim status, payment, health care and medication coverage, filing an online reconciliation and automatically receiving clearances if their business is in good standing.
The recommendations to modernize and streamline processes at the WSIB represent positive changes for employers, allowing easier access to information, and for documentation to be provided to the WSIB. However, some recommendations, such as those contained in recommendations #6 and #8 represent a significant departure from a framework that has been in place for a very long time. Those changes would likely require substantial legislative amendments. Only time will tell which recommendations are implemented and how.
If you have any questions about the recommendations or need assistance with a workers’ compensation matter, please contact the author or your regular Fasken lawyer.