Re: Putting fault back into a no-fault system (Legal Connection, November-December 2008)
I am writing concerning the article “Putting fault back into a no-fault system” in the Legal Connection column of the November/December issue of Canadian Occupational Safety.
The author notes that the new policy adopted by the WSIB (“Fatal Claim Premium Adjustment” policy, dated June 13, 2008) injects fault back into a no-fault system. He may not have appreciated that “fault” has been seeping back into the Ontario workers’ comp system since 1986 when the then WCAT began awarding claims for occupational disease on the basis of ‘significant contribution’.
The then tribunal chair stated publicly that a worker should be entitled to the same benefits under the law that accrue to all citizens under civil law, referring of course to the succession of Supreme Court precedential decisions in tort cases that incorporated ‘significant contribution’. The significant contribution policy has been increasingly used by the tribunal, and beginning in the early 90s, by the board itself in OD awards. The 2004 final report of the chair of the Occupational Disease Advisory Panel (ODAP), a panel struck by the board to advise it on OD policy issues, recommended that significant contribution be enshrined in board policy. The draft OD policies floated by the board for discussion last summer put into effect the ODAP chair’s recommendations. Despite efforts by employers to return to the ‘balance of probabilities’ standard for the adjudication of OD claims, there has been no suggestion that the board as of this date will back off of its intentions to proceed on this matter or to continue to enlarge the scope of workers’ comp practice that is based on fault.
So, I have to object to the author’s conclusion by suggesting that fault-based policies have been seeping into Ontario workers’ comp for more than 20 years! Your readers may be interested to know that I wrote an article on this very same subject (“The Public Good in Workers Compensation”) for the Policy Perspective column in your magazine back in September 2004.
James G. Heller, PhD, DECH
Toronto, Ontario
Last modified on Monday, 06 April 2009 13:14
I am writing concerning the article “Putting fault back into a no-fault system” in the Legal Connection column of the November/December issue of Canadian Occupational Safety.
The author notes that the new policy adopted by the WSIB (“Fatal Claim Premium Adjustment” policy, dated June 13, 2008) injects fault back into a no-fault system. He may not have appreciated that “fault” has been seeping back into the Ontario workers’ comp system since 1986 when the then WCAT began awarding claims for occupational disease on the basis of ‘significant contribution’.
The then tribunal chair stated publicly that a worker should be entitled to the same benefits under the law that accrue to all citizens under civil law, referring of course to the succession of Supreme Court precedential decisions in tort cases that incorporated ‘significant contribution’. The significant contribution policy has been increasingly used by the tribunal, and beginning in the early 90s, by the board itself in OD awards. The 2004 final report of the chair of the Occupational Disease Advisory Panel (ODAP), a panel struck by the board to advise it on OD policy issues, recommended that significant contribution be enshrined in board policy. The draft OD policies floated by the board for discussion last summer put into effect the ODAP chair’s recommendations. Despite efforts by employers to return to the ‘balance of probabilities’ standard for the adjudication of OD claims, there has been no suggestion that the board as of this date will back off of its intentions to proceed on this matter or to continue to enlarge the scope of workers’ comp practice that is based on fault.
So, I have to object to the author’s conclusion by suggesting that fault-based policies have been seeping into Ontario workers’ comp for more than 20 years! Your readers may be interested to know that I wrote an article on this very same subject (“The Public Good in Workers Compensation”) for the Policy Perspective column in your magazine back in September 2004.
James G. Heller, PhD, DECH
Toronto, Ontario
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Mari-len De Guzman
Mari-Len De Guzman is the editor of Canadian Occupational Safety magazine and www.cos-mag.com.
