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Ontario WSIB More Aggressive on Return-to-Work Issues


Once upon a time, if an employer was outside the NEER window and was finding it difficult to reintegrate a worker who had a workplace injury, it was relatively straightforward to arrange to have the worker go into the WSIB’s “Labour Market Re-entry” program. For the employer, this often effectively solved the problem of trying to “accommodate” the worker’s restrictions, usually at little or no cost to the employer. However, LMR was an enormously expensive program for the WSIB.

The WSIB is now in serious financial difficulty. The 2009 Report of the Auditor General of Ontario makes for some difficult reading:

The WSIB’s funding ratio represents the percentage of assets it has available to meet its financial obligations. As of December 31, 2008, its funding ratio was 53.5%—significantly lower than any of the four large provincial boards with which we compared Ontario (British Columbia, Alberta, Manitoba, and Quebec), which averaged 102%. In each of these four provinces, legislative and policy differences are key factors that contribute to their higher funding ratios. A Board’s funding ratio is largely determined by the size of its unfunded liability, which is the amount by which the Board’s financial obligations exceed its assets. As of December 31, 2008, the WSIB’s unfunded liability was $11.5 billion—an increase of $3.4 billion from December 31, 2007. One factor that had a significant negative impact on the unfunded liability in 2008 was the global economic downturn. However, there are also a number of other systemic issues that have affected the size of the unfunded liability.

The WSIB advised us that its 2008–12 strategic plan,The Road to Zero, contains a number of initiatives that target and support the financial sustainability of the system. … However, despite these initiatives, the WSIB advised us that, because of the significant financial losses resulting from the global financial market downturn, its target of full funding by 2014, which was originally established in 1984, will not be achieved. The WSIB has not set a new target date. On the basis of February 2009 projected estimates, the unfunded liability may not be eliminated until 2022—eight years past the 2014 date targeted by the WSIB and successive governments since 1984.

So … perhaps tightening belts make for more aggressive measures. An obvious area for reducing cost would be ensuring that workers remain at the “accident employer” rather than on the WSIB’s benefit rolls, especially in circumstances where the WSIB cannot recover any of the outlay.

What employers are seeing on the ground is an assertion from the WSIB that they have human rights obligations toward injured workers (which is of course true), and demanding written explanations for why employers are unable to find suitable work. For technical reasons, outside the two-year re-employment window it is arguable that the WSIB has no jurisdiction to deal with “accommodation” issues, but adjudicators are hinting that a “non-cooperation” penalty might result from a refusal to accommodate.

Employers are also seeing the WSIB cobble together jobs that they will say are suitable and available, and it is then up to the employer to explain why that isn’t the case.

The bottom line is that we can expect to see the WSIB taking a much more pronounced interest, and taking a much heavier hand with employers, in returning employees to work rather than putting them through a retraining program.

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