Examining workers’ compensation trends for 2021

A growing number of mental health conditions/claims have emerged related to COVID-19, writes Jason Mandlowitz. (zimmytws/Adobe Stock)

Much of our attention since March 2020 has focused on COVID-19. At the same time, other important systemic changes are occurring, and these should not be disregarded.

The question raised by this review of key workers’ compensation changes for 2021 in North America is: to what degree has the historical foundation for workers’ compensation been alerted from the inception of the scheme in the early part of the 20^th century?

Let’s unpack five current trends.

Presumptive legislation

In Ontario, the Workplace Safety and Insurance Act (WSIA) allows compensation for certain work-related issues based on “presumption.”

Section 13(2) of the WSIA states that if an accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. Similarly, if the accident occurs in the course of employment, it is presumed to have arisen out of the employment unless the contrary is shown.

Schedule 3 and 4 of Regulation 175/98 provide an occupational disease presumption. In the case of Schedule 3, the presumption is rebuttable.

Section 14(6) of the WSIA provides that PTSD is presumed to have arisen out of and in the course of employment unless shown to the contrary.

Section 15.1(1) of the WSIA provides a firefighter’s heart injury is presumed to be a personal injury arising out of and in the course of employment unless the contrary is shown.

Across North America, “presumption” has been broadly applied largely in reaction to the COVID-19 pandemic.

In August 2020, British Columbia became the first Canadian province to add COVID-19 to its list of occupational illnesses. Employees who contracted COVID-19 and made a claim to WorkSafeBC did not have to prove it occurred at the workplace if their jobs put them at an increased risk for exposure.

Expansion of telemedicine

Workers’ compensation programs have established a legislative standard for worker entitlement to health-care benefits. Boards arrange and pay for health-care and related services prescribed under the various insurance plans.

With COVID-19, significant health-care changes with the most important being the expansion of telemedicine.

This has involved an increase in telephone calls to health-care providers and virtual medical assessments and a decrease of in-person appointments. In Ontario, the requirement for a medical certificate(s) to diagnose and confirm a work-related injury/illness has been temporarily suspended in Ontario during COVID-19.

In the short term, the continuation of telemedicine challenges many of the established legislative provisions and WSIB policies addressing medical causation. Temporary or permanent suspension of medical certificates challenges disability management best practices and some collective agreements.

Meredith principles

Since the 1910 Meredith Commission on workmen’s compensation and the 1914 Workmen’s Compensation Act in Ontario, a core set of principles have been accepted as a historical compromise between employers and workers.

This compromise also forms the foundation of workers’ compensation regimes across North America and included:

• collective liability and employer funding
• no-fault compensation
• income replacement dispensed in a timely manner
• no right of action (civil litigation)
• independent arms-length administration.

Arguably, the evolution of the workplace safety and insurance system has led to other principles being added to the compensation scheme.

These include, but are not limited to, prevention of workplace injuries and diseases, presumptive coverage for certain occupational diseases (other than COVID-19), early/safe/timely return to work, employer experience rating, and separate independent appeal bodies.

COVID-19 has challenged the no-fault compensation principle. COVID-19 exposure and the need for objective medical causation have created challenges for the compensation scheme resulting in the debate about adding COVID-19 to the list of occupational diseases and “presumption.”

This change may be seen as either the erosion of the Meredith principles or modernization of workers’ compensation.

Levels of compensation, premiums and coverage

Historically, workers’ compensation has considered issues of employer coverage and employee compensation benefit levels.

As different North American workers’ compensation schemes apply different standards, it is likely that the question of what constitutes fair and affordable benefits will continue to be a matter of stakeholder concern.

Questions linked to worker coverage need to be asked:

• Should the maximum or cap on benefit levels and insurable earnings used to calculate employer premiums be removed and replaced with actual earnings?
• Should wage replacement benefits be set at a statutory rate for the full duration of a claim or should benefits lower or increase with claim persistency?
• Should worker benefit levels be eligible for a financial top-up to 100 per cent from non-WSIB income sources?
• For low earning workers should the minimum level of benefits be set at 100 per cent of the provincial minimum wage?
• Should worker’s pensions based on levels of impairment be reviewed to ensure awards more accurately reflect level of disability?
• With changes to the nature of work and especially with the advent of remote work, independent or self-employment and the gig/on-demand economy, should individuals be recognized to be entrepreneurs, or covered as workers under the WSIA?

The impact of COVID-19 has resulted in recommendations for extending WSIB coverage for uninsured health-care workers in residential facilities and volunteers, self-employed individuals, independent contractors and gig/on-demand providers.

Mental health benefit entitlement

Over time, workers’ compensation authorities have been asked to adjudicate increasingly complicated psychological conditions arising from psycho-traumatic disability and mental stress.

A growing number of mental health conditions/claims have already emerged related to COVID-19.

2021 may very well be the year that mental health claims begin to overwhelm all other insurance claims.

Workers’ compensation authorities must respond and establish an effective/efficient adjudicative, medical assessment and treatment, and a rehabilitation framework which emphasizes expedited care from qualified medical professionals (psychiatrists and psychologists) in a timely manner.

A WSIB program of care for mental health claims would also be helpful.

Mental health is not the sole responsibility of workers’ compensation, but boards must become a leader in this field.

Jason Mandlowitz is president of Mandlowitz Consulting and Paralegal Services in London, Ont.