Jun 7, 2018

Did a “Secret Policy” Deprive Hundreds of Workers of Their Full WSIB Injury Awards?

Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121 (CanLII)

That is what a proposed class action lawsuit wants to prove.

A representative plaintiff and other members of the class action will argue that they were wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act from 2012 to 2014. The lawsuit contains some fairly serious allegations: misfeasance in public office, bad faith and negligence. The February 2017 Ontario Court of Appeal decision to allow the the class action to proceed came after it was initially denied in 2015.

The key issue at stake is whether the WSIB applied what was essentially a secret policy that allowed them to reduce NEL (non-economic loss) awards based on pre-existing conditions, even if those conditions had never shown any symptoms prior to the accident. The class action alleges that the WSIB used this policy to save money.

The representative plaintiff was a sewer worker in Brampton who seriously and permanently damaged his shoulder at work in 2011. He was awarded a lump sum for non-economic loss, but the WSIB “then reduced the award by 50% to $1,229.50 because of a ‘pre-existing condition’, identified as osteoarthritis in the injured shoulder.” This, despite the fact that his osteoarthritis had been asymptomatic and never affected his shoulder’s functionality.

He was successful in appealing the decision, and his award was restored to its full amount. Afterwards, he learned that there were other workers who had had their NEL awards reduced on the same basis, only to be restored on appeal. He also discovered there was an internal WSIB document that supported the reductions for pre-existing conditions.

According to the Toronto Star, “the overwhelming majority of appeals from workers who had benefits slashed because of so-called pre-existing conditions have been overturned by the WSIB’s own independent appeals tribunal since 2012. But because of backlogs, it often takes workers’ years to win the entitlements they were owed in the first place. ”

Curious if you or someone you know could be eligible to join the class action? The proposed class is defined as:

(a) All workers whose Non-Economic Loss (“NEL”) awards for workplace injuries were reduced by the Defendant due to pre-existing medical conditions that were not impairments negatively impacting upon their pre-accident functioning; and

(b) who also incurred expenses pursuing administrative appeals of the Defendant’s decision to reduce their NEL awards.

[This post first appeared on the Van Dyke Law Office Blog]