Three recent decisions at the Workplace Safety and Insurance Board (WSIB) have raised serious questions of mismanagement of our province’s workers’ compensation system. Tasked with making decisions on claims of workplace illness or injury, the WSIB mistakenly allowed three claims, each which attributed the death of a worker to an Ontario masonry company, the most recent of which was successfully appealed in September of 2014. The appeals of London lawyer Cézanne Charlebois have compelled the WSIB to halt ongoing benefits, but the substantial sums already paid out are entirely unrecoverable. Charlebois, a Certified Specialist in Workplace Safety and Insurance Law, estimates that the cost of these incorrectly decided claims is likely over $1 million dollars.

The case facts present a damning picture of the struggling WSIB, who are currently carrying a multi-billion dollar unfunded liability, which, according to the Board, will take until 2027 to eliminate.

Two of the three claims were filed within six months of each other by a Toronto-area worker representative who alleged that employees of the masonry company were required to mix and spray asbestos, and were left to work alongside similar uses of asbestos by coworkers. The representative used these two claims to validate each other as independent allegations of asbestos exposure.

Particularly alarming is the fact that the paralegal who had misled the Board into paying nearly a million dollars in undeserved benefits was a 25-year veteran of the WSIB. This connection had neither been publically disclosed by the paralegal nor admitted by Board employees until after Charlebois disclosed that she found the connection. Charlebois maintains that these claims were accepted “without question, verification or investigation” on behalf of the WSIB adjudicators, some of whom were on a first-name basis with the worker representative. “It’s definitely very interesting that a former Board employee would appear to be blatantly misrepresenting the job duties of the worker, and even more intriguing that her claims went through with barely any scrutiny,” Charlebois asserts.

“The ease with which the Board allowed such unsound claims at such high cost to the employers of Ontario is astounding”, says Charlebois. According to the case files, one of the workers was quoted in a medical report denying any contact with asbestos. However, a family member of that (then deceased) worker later testified to the Board that the worker had told stories of “white asbestos powder falling out of the air.” Despite the contradictory nature, this hearsay statement was deemed sufficient to validate the alleged exposure and used by the WSIB to justify nearly a million dollars in benefits.

When Charlebois took the file, these claims had already been allowed and the Board had already paid out substantial lump sum payments of up to $300,000. The estates of the workers were given numerous other benefits, including funeral and retroactive health care benefits, and a monthly survivor benefit of more than $2500 per month. Charlebois has since had both claims overturned, and benefits have stopped, but she worries about the damage that has already been done and what it means for the future of the Board.

“That the WSIB would make such reckless decisions is very disconcerting to my clients. These are Ontario businesses; their premiums fund the entire system. How can they have faith in a system that throws away their money so easily?”

In the third and most recent decision in which entitlement was overturned by Appeals Branch, the Board revealed an alarming unwillingness to examine their own decision making for these claims which pinned the death of three workers on one employer. Once the first two claims were overturned based upon the lack of exposure to asbestos, the Board then vigorously defended its incorrect entitlement decision by asserting that the lung cancer was now caused by exposure to silica. This new justification for the faulty decision making was made in February 2014, despite the fact that it had clearly been pointed out to them that here had never been any previous medical findings or diagnosis of silicosis before the unfortunate diagnosis of lung cancer. The Board’s own Respirologist consultant had told them in 2010 that with years of clear chest x-rays right up until the months before the onset of cancer, that this was non-occupationally caused lung cancer. In their lengthy February 2014 re-consideration decision in which they stubbornly affirmed initial entitlement for an occupational fatality that was now caused by silica exposure, the WSIB supplied their own internal “scientific research paper” as support. But even their own internal paper stated conclusively that a causative link between lung cancer and silica exposure could not be made without a diagnosis of silicosis.

Further exacerbating the problem is that fact that in the Occupational Disease division, the costs are shared among all employers. Employers (read: Ontario businesses) are reluctant to spend money challenging a decision that will not immediately financially harm them, and therefore many claims go unchallenged. The strain on the system is rarely a consideration for employers. According to the WSIB’s 2011 review, occupational disease claims are on average four times more expensive than regular injury claims. Asbestosis (not including death benefits) has accounted for over $84 million in Board spending since 1990, and in 2009, 261 deaths were attributed to occupational disease, suggesting nearly $100 million spent on survivor benefits and death settlements.

Eugene George, founder of GA Masonry, and the contractor noted in all three claims, hoped that his experience was not representative of the nature of the Occupational Diseases division.

“We took these appeals upon ourselves out of principle. They painted a picture, not just of us, but of our industry, and it was completely incorrect.”

Both George and Charlebois worry that these cases are not outliers, and that the WSIB does not critically examine each case as much as they should prior to making such costly determinations.

Mr. George (now deceased) managed his masonry company for 65 years and said that he was very proud to be a part of the masonry industry. “The Board did not even try to understand what we do. We feel we operate on a very professional basis, so it shocked us that the WSIB would defame our industry with these assumptions.”

In spite of the initial errors, Charlebois believes these decisions to be a coup of sorts for Ontario employers:

 “It’s encouraging that after years of bureaucratic defensiveness from a WSIB unwilling to admit its errors, AROs can and will find the truth. The Board itself displays organizational tolerance towards poor decision-making, which is frustrating to employers because they feel like it is inevitable that their objections will be disregarded. They need to understand that independent AROs are separate from, and not personally vested in the institutional resistance of the Board’s Operations Division. ”

Nevertheless, it is apparent that the burden of proof for the WSIB’s most costly decisions must be raised if employers are to have any faith in the sustainability of the workers’ compensation system.

And many thanks to Eugene, the incredible man that he was for fighting the good fight for Ontario employers.