WSIB acknowledges error, but has not corrected it & Addendum June 2016

Commission still seeking redress for worker treated unfairly by WSIB in 2015

A loss of earnings case remains open several months after the Commission began seeking fairness for a worker whose benefits were reduced even though the WSIB set aside the decision that led to the reduction.

“I am still in talks with senior management at the WSIB to achieve fairness for a worker who was harmed by an appeal that was decided without his knowledge,” said Commissioner Tom Irvine. “WSIB officials have so far not accepted my recommendation to make this right even though they acknowledge the mistake is theirs.”

A worker’s representative contacted the Commission about the case. In September 2013, a case manager decided that the worker was capable of earning $27 an hour. That rate was used to lock in loss of earnings benefits at 72 months after injury.

The employer appealed the decision and argued the worker was capable of earning more than $27 an hour, and should therefore receive lower benefits. Without notifying the worker’s representative, the appeal was decided in favour of the employer. The appeals resolution officer (ARO) ruled in January 2015 that the worker was capable of earning
$36 an hour.

The WSIB implemented the decision two weeks later and substantially reduced the worker’s loss of earnings benefits.

The worker’s representative contacted the Appeals Services Division (ASD) about how the appeal had been handled. The ASD agreed that the failure to notify the worker constituted a procedural flaw and, under ASD Practices and Procedures, declared the January 2015 ARO decision void. In a new written decision issued in October 2015, the ARO upheld the January ARO decision which reduced the worker’s benefits.

In the 10-month period between the two ARO rulings, however, the worker’s loss of earnings benefits remained at the lower level. The commissioner told the WSIB that once the January appeal decision was set aside, benefits should have been restored to the higher level and remained there until the second decision in October. Although that second appeal decision sided with the employer, the worker received notice and had input.

“To set aside a ruling due to WSIB procedural errors, yet leave the effects of that ruling in place, is fundamentally wrong. I have said this to the vice-president of the Appeals Services Division,” said Irvine.

“This case goes to the heart of our mandate at the Commission. Our job is to review fairness issues brought to us on a case-by-case basis. There is no question that what happened to this worker is unfair. The case remains unresolved. Our work is not done.”

 

ADDENDUM – JUNE 2016

 “WSIB ACKNOWLEDGES ERROR, BUT HAS NOT CORRECTED IT”

As noted in the Commission’s 2015 Annual Report, the commissioner recommended that a worker’s benefits be restored for the period between January 2015 and October 2015.

It is the practice of the Fair Practices Commission to continue to raise a fairness concern with the WSIB at whatever level is necessary until it is resolved to the satisfaction of the commissioner.  In May 2016 the commissioner met with the president and chief corporate services officer of the WSIB to discuss his fairness concerns.

Following that meeting, the WSIB agreed to implement the commissioner’s recommendation on the basis that what occurred in this case was not consistent with the Practices and Procedures document of the Appeals Services Division.

The WSIB wrote to the representatives of both the worker and employer advising that benefits would be restored for the January to October 2015 period. The worker received these benefits in June, 2016.

“This issue is now resolved.” – Tom Irvine, Commissioner