Lawyer slams payout cuts to injured workers

Workplace safety board sued for reducing benefits based on pre-existing health conditions Laurie Monsebraaten
The Toronto Star, May 11, 2014

A Toronto lawyer has launched a multimillion-dollar class action lawsuit on behalf of injured workers against Ontario’s Workplace Safety and Insurance Board for discounting pain and suffering awards due to pre-existing medical conditions.

“For 22 years, the board has calculated non-economic loss awards based on a point system that recognized the impact of injuries on degenerative disease,” said lawyer Richard Fink.

“But several years ago, the board instructed case managers to deduct for pre-existing conditions without any formal changes in policy, regulations or law,” he said in an interview Friday. “What they are doing is illegal.”

As reported by the Star, injured workers’ advocates are alarmed by a proposed board policy on pre-existing conditions they say would legitimize this practice.

Before the election call, they wrote an open letter to Premier Kathleen Wynne, saying the change would contravene the “historic compromise” behind Ontario’s 100-year-old no-fault insurance plan, which saw injured workers give up their right to sue in exchange for fair and just compensation for as long as a workplace disability lasts.

A WSIB spokeswoman said the board considers Fink’s lawsuit to be “completely devoid of merit and will vigorously defend all allegations.”

“We are committed to ensuring that every injured worker receives the appropriate level of benefits,” Christine Arnott said in an email. “The WSIB is proud of its record in providing service to injured workers in Ontario.”

Non-economic loss awards are granted by the Workplace Safety and Insurance Board (WSIB) to cover pain and suffering for injured workers who suffer permanent physical and psychological impairments from a work-related injury or illness.

Fink’s lawsuit, filed with Ontario Superior Court last month, claims the board reduced legitimate non-economic loss claims due to pre-existing medical conditions which had not previously caused any impairment.
It alleges the WSIB acted in bad faith and committed “malfeasance in public office” when it reduced these awards for thousands of injured workers in Ontario without legal authority.

The lawsuit seeks damages from the board for its behaviour, including expenses incurred by workers challenging decisions on their claims.

“The Board moved aggressively to reduce its costs by clawing back legitimate awards to injured workers, forcing them into lengthy and costly legal battles to win back what they should never have lost,” said Fink.

Pietro Castrillo of Brampton is just one of the many injured workers whose non-economic loss award was wrongfully reduced by the WSIB due to a “secret policy” the board adopted to cut costs in 2011-12, Fink alleges in his statement of claim.

The 61-year-old man tore his rotator cuff and permanently injured his shoulder while working for a sewer construction company in 2011.

He was eligible for a non-economic loss award of about $2,500. But since medical tests found evidence of osteoarthritis in his shoulder, the WSIB reduced his award by half to $1,230, according to the lawsuit. Castrillo appealed and won because this pre-existing condition had never impaired his ability to work in the past.

However, the appeal process doesn’t grant legal costs, so Castrillo had to pay Fink’s legal fee of about $630.

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