Sara Mojtehedzadeh (STAR TOUCH)
For 17 years, Mark Winegarden dedicated himself to the care of others as a Wasaga Beach paramedic. But he says that when he needed care himself following a workplace injury, the system failed him.
Four years after making a successful Workplace Safety and Insurance Board claim for an injured lower back, Winegarden was abruptly cut off benefits when the board revisited his file. The sudden ruling concluded his symptoms actually stemmed from a “pre-existing condition” rather than his traumatic accident — a reversal that advocates for injured workers say is unlawful but increasingly common.
Indeed, the board’s own independent appeals tribunal is systematically rejecting decisions to slash benefits based on alleged pre-existing conditions, a Star analysis has found. Since 2012, about 80 per cent of injured workers’ appeals on that issue have been successful, according to a tally of tribunal rulings.
“It’s depressing in the extreme to witness a major institution like the board operating in a manner that puts the administration of justice into disrepute and being allowed to get away with it,” said Ron Ellis, a noted legal expert who served as the first chair of the board’s independent tribunal from 1985 to 1997.
“The impact on the injured workers it affects is dramatic, but the rest of us should be ashamed of it from a rule-of-law perspective.”
Critics say the rate at which the WSIB’s decisions on the issue are being slapped down suggests it regularly violates the legal tenet underpinning the entire workers’ compensation system: the thin-skull doctrine, which says injured workers cannot be denied benefits for health conditions that never interfered with their work abilities before an accident.
The result, critics argue, is that vulnerable workers are forced into protracted confrontations with the board if they want to win the compensation they are legally entitled to.
Responding to a list of questions from the Star, board spokesperson Christine Arnott said the board had recognized there was a “growing challenge in adjudicating claims with pre-existing conditions” and a “risk of inconsistency.” As a result, the WSIB introduced a new policy on pre-existing conditions in 2014, which Arnott said is compatible with the thin-skull principle and “provides consistency in decision making and alignment with other jurisdictions.”
Because of the backlog at the Workplace Safety and Insurance Appeals Tribunal (WSIAT), the board’s 2014 guidelines have yet to be tested. But Ellis believes the new policy, which says pre-existing conditions can be considered if they are shown “to contribute to the degree of (a worker’s) permanent impairment,” could still be unlawful.
“I have yet to see the legal opinion in which (the board) argues the legal merits of their new policy,” Ellis told the Star. “They appear to have decided it was cheaper to overrule the thin-skull doctrine.”
Reviewing WSIAT’s rulings over the past three years on files involving pre-existing conditions, the Star found at least 60 successful appeals. The board’s decisions were upheld just 15 times.
The thin-skull doctrine has been repeatedly affirmed as a vital part of workers’ compensation. In 1950, a Royal Commission on the subject decreed that “all workmen are entitled to the full protection under the Act without any discrimination based on their physical condition.” In 1998, the WSIB’s own legal counsel, Paul Holyoke, called the thin-skull principle the “cornerstone” of the province’s workers’ compensation system.
Yet it took Mark Winegarden three years to win back the benefits he was legally entitled to based on that principle.
“You hate being judged as that guy who is abusing the system. And it comes from your peers. It comes from your neighbours. It comes from a lot of people. It’s demoralizing,” he told the Star.
The 54-year-old hurt his back in 2007 while lifting a 200-pound patient, forcing the previously active and energetic paramedic to undergo surgery. The board gave him a relatively high permanent impairment rating at 32 per cent.
But in 2012, the board suddenly cancelled Winegarden’s claim. According to his case documents, the WSIB reviewed his file, drawing on the advice of a medical consultant who had never even examined Winegarden.
That consultant said his ongoing suffering was related to a pre-existing condition rather than his workplace accident.
In 2015, the appeals tribunal ruled that the board’s medical consultant was not “persuasive” because he “did not provide reasons to support his conclusion.” While Winegarden did have a pre-existing back condition, the tribunal found there was “no evidence of significance” to suggest it had interfered with his work until his accident — meaning he could not be denied benefits by the board.
The WSIB did not comment on Winegarden’s case, but said in an emailed statement that it “operates under a wage loss system which is designed to provide ongoing compensation to injured workers for wages they’ve lost as a result of workplace injuries/illnesses. Because of this, we have an obligation to assess entitlement to benefits throughout the life of a claim on an ongoing basis.”
Critics argue the board has sought to more aggressively identify pre-existing conditions as a means of reducing benefit entitlement since 2010, when then-president David Marshall was tasked with cutting the WSIB’s $12 billion unfunded liability.
The change has been most marked since 2012, Ellis says, when the board hired a Dr. Christopher Brigham to review its policy on permanent impairments. The ensuing report suggested the board consider any pre-existing conditions workers might have had when ruling on compensation.
As reported by the Star, Brigham previously ran a U.S.-based “workers’ compensation cost containment” company, and is embroiled in a legal battle there over an alleged “scheme” to unfairly cut accident victims off insurance benefits. The allegations have not been proven in court. Brigham described himself to the Star as a “strong advocate for those who are recovering from injury.”
While the WSIB has now been forced by its appeals tribunal to revive his benefits, Winegarden says it’s been something of a pyrrhic victory.
The board has since told him he could be working at a customer service job — and has cut back his entitlement accordingly.
Meanwhile, Winegarden says, he suffers from chronic pain after his surgery left him with severe keloid scarring, an overgrowth of scar tissue on his spine. The pain leaves him bed-bound three to four times a week, he says; he uses a catheter to empty his bladder and is on 200 mg of morphine daily to treat his symptoms.
“There are days that I just feel like a complete failure,” he said.
“I had so much guilt because of all the people I had picked up over the years (as a paramedic) who I had decided that they were just seeking medication,” he added.
But even when accident victims are in the right, Winegarden says, he believes the emotional toll of fighting the board’s decisions is too high for many.
“The (board) knows a certain percentage are just going to abandon their claims. A certain percentage are going to fight, but they won’t have the resources,” he said.
“There’s no penalty for the board having behaved like that.”