A growing number of mental illnesses / claims related to COVID-19 have emerged, 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 that should not be ignored.
The question that arises from this review of the key changes to workers ‘compensation for 2021 in North America is: To what extent has the historical basis for workers’ compensation been alarmed since the system began in the early 20th century?
Let’s unpack five current trends.
Presumed legislation
In Ontario, the Workplace Safety and Insurance Act (WSIA) allows compensation for certain work-related problems based on “guesswork”.
According to Section 13 (2) WSIA, it must be assumed that an accident resulting from the employee’s employment occurred in the course of the employment, unless the contrary is proven. If the accident occurs in the course of the employment relationship, it is assumed that it arose from the employment relationship, unless otherwise proven.
Annex 3 and 4 of Regulation (EC) No. 175/98 contain a presumption about occupational diseases. In the case of Appendix 3, the presumption is rebuttable.
According to Section 14 (6) WSIA, it can be assumed that PTSD has arisen from and in the course of employment, unless otherwise stated.
According to Section 15.1 (1) of the WSIA, a heart injury to a firefighter is presumably bodily harm that results from and during employment, unless proven otherwise.
Across North America, the “guess” has been used largely in response to the COVID-19 pandemic.
In August 2020, British Columbia became the first Canadian province to add COVID-19 to its list of occupational diseases. Employees who contracted COVID-19 and made a claim to WorkSafeBC did not have to demonstrate that this was the case in the workplace if they were exposed to an increased risk of exposure due to their work.
Expansion of telemedicine
Employee compensation programs have set a legal standard for employees’ entitlement to health benefits. The Boards organize and pay for the health care and related services required under the various insurance plans.
With COVID-19, healthcare is changing significantly, with the expansion of telemedicine being the most important.
This has led to an increase in phone calls to healthcare providers and virtual medical reviews, as well as a decrease in face-to-face appointments. Ontario has temporarily suspended the requirement for a medical certificate to diagnose and confirm work-related injury / illness during COVID-19 in Ontario.
In the short term, the continuation of telemedicine calls into question many of the established legal provisions and WSIB guidelines that address medical causes. The temporary or permanent suspension of medical certificates calls into question disability management best practices and some collective agreements.
Meredith principles
Since the 1910 Meredith Commission on Workers ‘Compensation and the Ontario Workers’ Compensation Act of 1914, a number of principles have been accepted as a historic trade-off between employers and workers.
This compromise also forms the basis for employee compensation schemes across North America and includes:
- collective liability and employer funding
- error-free compensation
- Income replacement submitted on time
- no right of action (civil procedure law)
- independent management on market terms.
The development of the system of safety and insurance in the workplace has arguably led to further principles being added to the compensation system.
These include, but are not limited to, workplace injury and illness prevention, suspected coverage of certain occupational diseases (excluding COVID-19), early / safe / timely return to work, employer experience assessment, and separate independent appeal bodies.
COVID-19 has questioned the principle of error-free compensation. Exposure to COVID-19 and the need for objective medical causation have challenged the compensation system, which has led to the debate about the occupational disease listing and “presumption” of COVID-19.
This change can be viewed as either an erosion of the Meredith Principles or a modernization of employee compensation.
Amount of remuneration, premiums and coverage
In the past, issues of employer coverage and the amount of employee compensation were taken into account in employee compensation.
With different North American compensation schemes applying different standards, it is likely that what constitutes fair and affordable benefits will continue to be a concern for stakeholders.
Questions related to employee coverage need to be asked:
- Should the maximum or upper limit for the level of benefits and insurable income used to calculate employer premiums be removed and replaced with actual income?
- Should wage replacement benefits be set for the entire duration of an entitlement to a statutory rate or should the benefits be lower or higher with the duration of entitlement?
- Should workers’ performance levels be eligible for 100 percent funding from non-WSIB sources of income?
- Should the minimum benefit level be set at 100 percent of the provincial minimum wage for low-income workers?
- Should workers’ pensions be reviewed based on the degree of disability to ensure that the premiums more accurately reflect the degree of disability?
- Should individuals be recognized as entrepreneurs or covered as employees under the WSIA, given changes in the nature of work, and particularly with the emergence of remote working, self-employment or self-employment and the gig / on-demand economy?
The impact of COVID-19 has led to recommendations for expanding WSIB coverage to uninsured residential healthcare workers and volunteers, self-employed, independent contractors and gig / on-demand providers.
Entitlement to mental health benefits
Over time, workers’ compensation authorities have been asked to rule on increasingly complex psychological conditions arising from psycho-traumatic disabilities and psychological stress.
A growing number of mental illnesses / allegations have already emerged in relation to COVID-19.
2021 could very well be the year when mental health claims start to overwhelm all other insurance claims.
The workers’ compensation authorities must react in a timely manner and establish an effective / efficient assessment, medical assessment and treatment as well as a rehabilitation framework in which accelerated care by qualified medical professionals (psychiatrists and psychologists) is in the foreground.
A WSIB program to address mental health claims would also be helpful.
Mental health is not the sole responsibility of employee compensation, but boards of directors need to become leaders in this area.
Jason Mandlowitz is President of Mandlowitz Consulting and Paralegal Services in London, Ontario.
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