The review has reached 25 recommendations for the WSIB and the government. The goal of these recommendations is to help the Workplace Safety and Insurance Board manage the series of transitions that are currently undergoing while still protecting and maintaining its financial sustainability and ultimately better serving the workers and employers in Ontario.

The final point is fundamental: as a public institution, the WSIB must dedicate itself to earning the trust and confidence of Ontarians on an ongoing basis. These recommendations will hopefully help to achieve this goal.

Recommendation 1

The government should adopt a regulation that prescribes a sufficiency ratio corridor of 115% and 125% for the Workplace Safety and Insurance Board from 2020 to 2025.

Updating Regulation 141/12 – Insurance Fund with a new sufficiency ratio corridor between 115% and 125% in the short-term will help to protect the Workplace Safety and Insurance Board's financial position as it unwinds the past claims costs from its premium rate and transitions to the new rate framework. It may be a more conservative target than some employers would prefer. But there is a good case for erring on the side of stability as the WSIB goes through this period of transition. The government should revisit the proposed sufficiency ratio corridor in 2025 to determine if it can or should be adjusted at that time.

Recommendation 2

The government should prescribe the parameters for surplus distribution — namely, instructing the Workplace Safety and Insurance Board to consider surplus distribution when the insurance fund exceeds 115% and to require it distributes surpluses if the sufficiency ratio hits or exceeds 125%.

Setting out clear parameters for surplus distribution will help to protect against the risk of overfunding and the potential for ad hoc or politicized decisions. The related parts of the new regulation can be informed by the Alberta Workers’ Compensation Board’s funding policy, which sets out an effective, principle-based model.

Workplace Safety and Insurance Board should consult with stakeholders on the best design for surplus distribution — including possibly a dividend model or a premium credit. There may be scope for a differentiated model depending on how much a firm would be entitled to receive. It may be more efficient, for instance, to deliver small payments in the form of a premium credit on the subsequent year’s premiums and larger payments in the form of dividend. The review will not prejudge the conclusions of the WSIB’s consultations. But it is important that the parameters around surplus distribution, including how it will be implemented, are codified in the name of transparency, predictability and accountability.

Recommendation 3

The government should amend the Workplace Safety and Insurance Act to clarify that any legal or policy changes that impose costs on the Workplace Safety and Insurance Board should come into effect in the year in which the Workplace Safety and Insurance Board can account for these costs in its rate-setting process.

This recommendation, which was previously proposed in the Arthurs report, would help to protect against the risk that in-year policy changes enacted by the government harm the WSIB’s financial position. Codifying this principle in the statute would not constrain the government’s ability to make policy changes. It would just affect their implementation timing in order to give the WSIB adequate time to account for the effects in its pricing and rate-setting processes.

Recommendation 4

The Workplace Safety and Insurance Board should develop a predictive modelling capacity within the organization.

As the Workplace Safety and Insurance Board continues to refine and strengthen its pricing and rate-setting processes, it should develop a predictive modelling capacity to reflect industry best practices in order to proactively identify future trends and developments and price their costs.

Recommendation 5

The Workplace Safety and Insurance Board should establish the position of Industry Class Manager with whom employers, industry associations, and unions can engage about their issues and circumstances related to specific industry classes.

As part of the transition to the new Rate Framework, the WSIB should assign a manager position for each of the 34 industry classes who will be responsible for acting as a point of contact for employers, industry associations, unions and others who have questions or issues with the classification system.

This will help to manage the transition and better resolve issues that may stem from the consolidation of 155 rate groups into 34 industry classes.

The review’s consultations heard that British Columbia’s workers’ compensation model has such a role. The Workplace Safety and Insurance Board may wish to consult with their BC counterparts to determine if there are any lessons or best practices that can be derived from their human resource model.

Recommendation 6

The Workplace Safety and Insurance Board should move to an exclusionary model for coverage on a go-forward basis for new employers and industries. This would not affect currently non-mandatory covered industries, but it would apply to any new firms or industries.

The Workplace Safety and Insurance Board’s inclusionary model is not well-suited to the province’s dynamic economy. Moving to an exclusionary model whereby firms would be subject to mandatory coverage unless the WSIB and the government deliberately exclude them would rationalize how these judgments are made and ensure the system is better positioned to manage new and emerging occupations and industries.

The review does not recommend revisiting the treatment of currently non-mandatory covered industries. Industries and firms have operated according to the current framework for more than a century, and some have made alternative insurance arrangements for their workplaces. Changing their treatment now would create disruption and possibly unintended consequences such as employment losses or diminished business investment. The shift to an exclusionary model should therefore apply on a go-forward basis and apply to new firms or industries in Ontario’s economy. The timing for the new model would need to account for possible consultations or legislative and regulatory changes.

Recommendation 7

The Workplace Safety and Insurance Board and the government should extend mandatory coverage to developmental support workers and those working in residential care facilities.

The Workplace Safety and Insurance Board and the government should extend mandatory coverage to developmental supporter workers and those working in residential care facilities as envisioned in Bill 145, which died on the order paper in the 41st Parliament. This would solve for an unjustified anomaly that risks causing distortions in the labour market.

Recommendation 8

The Workplace Safety and Insurance Board and the government should consider consolidating all Schedule 2 employers in the collective liability framework.

The Workplace Safety and Insurance Board has run parallel liability schemes for 105 years. The vast majority of firms belong to the Schedule 1 collective liability model. Fewer than 600 participate in the Schedule 2 individual liability arrangement.

The Workplace Safety and Insurance Board should consider consolidating Schedule 2 employers into the collective liability model. This would require transition planning to account for possible adjustments to the industry classes and premium rates, the treatment of Schedule 2 employers who may have ongoing claims under the individual liability system and would begin to pay premiums into the collective liability system for future claims, and any necessary legislative and regulatory changes. The timing for implementation would need to account for consultations and legislative and regulatory changes.

But consolidating the two models would simplify the Workplace Safety and Insurance Board's administration and bring greater cost certainty to Schedule 2 employers. The elimination of the unfunded liability creates an opportunity for the WSIB and the government to move ahead with this possible reform.

Recommendation 9

The Workplace Safety and Insurance Board should modernize the claims process by expanding digital submissions of documents and enabling individuals to register online in order to monitor the status of their files through a secure personal portal.

That people can only interact with the Workplace Safety and Insurance Board via telephone and fax not only produces sub-optimal services, it is a threat to the organization’s long-term credibility. The public’s expectations about how public institutions provide services are growing. If the WSIB cannot provide more responsive, timely and individualized services, there is a risk it will lose the public’s trust and confidence and lead to questions about its ongoing utility as a public institution.

The Workplace Safety and Insurance Board must modernize the claims process by replacing the reliance of paper processing, telephone interactions and faxing with easy-to-use online services. The organization should prioritize enabling digital submission of documents and online system for monitoring one’s status as soon as possible.

Recommendation 10

The Workplace Safety and Insurance Board should move to a self-service model for no-lost-time claims in particular and simple claims in general using a system of online claims and fast-tracked adjudication.

The vast majority of WSIB claims are no-lost-time or minimal lost-time claims. Yet its current model for managing claims and adjudication fails to distinguish between these simple claims and more complex ones. The result is a poor distribution of staffing and resources.

The Workplace Safety and Insurance Board should move to a self-service model for no-lost time claims in particular and simple claims in general that leverages online submission and fast-track adjudication (including the use of e-adjudication) in order to better dedicate staffing and resources to complex claims.

This will require a combination of digital and operational changes envisioned in the Core Services Modernization initiative. The WSIB should prioritize these reforms in the short term.

Recommendation 11

The Workplace Safety and Insurance Board should set separate targets for processing timelines for no-lost-time claims and lost-time claims.

Presently the WSIB’s target for its processing timelines does not distinguish between no-lost-time and lost-time claims. This inflates the organization’s performance metrics given the disproportionate number of no-lost-time claims, which can typically be processed much faster than lost-time claims. The WSIB should set separate targets for no-lost-time claims and lost-time claims and report on its performance on meeting the timelines separately in order to give Ontarians a clearer sense of its progress in improving the claims and adjudication processes.

Recommendation 12

The Workplace Safety and Insurance Board should continue to adjust and refine its process for claims adjudication to ensure that the claims are being managed by the right people at the right time.

The Workplace Safety and Insurance Board has been experimenting with different models for assigning cases within the organization in order to distribute staffing and resources in an efficient way. This makes theoretical sense, but it has caused some issues for workers and employers due to a lack of continuity. The review frequently heard about having to speak to different WSIB officials each time a worker or employer called about their file. The outcome can be greater inefficiencies rather than less.

There is a ‘sweet spot’ between a highly-specialized approach and a completely generalist one. Simple claims, as a general rule, can be resolved through a triage model. More complex ones (including mental stress and occupational disease cases) will require dedicated expertise. The goal must be to ensure that claims are being managed by the right people at the right time.

Shifting to a model that focuses resources and expertise on specific types of claims — particularly complex ones — will become even more important in anticipation of a rising number of occupational disease and mental stress cases in the future. The WSIB should, therefore seek to adjust its model to distinguish between different types of claims and dedicate staffing and resources accordingly.

Recommendation 13

The Workplace Safety and Insurance Board and the government should consider consolidating the Workplace Safety and Insurance Board's multiple layers of appeal and reconsideration into a single appeals function before appeals move to the Workplace Safety and Insurance Tribunal.

The Workplace Safety and Insurance Board’s multi-layer appeal process can contribute to considerable delays and yet do not tend to produce different outcomes from the initial adjudication. This does not serve the interests of workers or employers.

The Workplace Safety and Insurance Board and the government should therefore consider consolidating the two layers of appeals and reconsideration presently housed within the Workplace Safety and Insurance Board. A single appeals function could draw from the current approaches of the operating-level reconsideration process and the Appeals Services Division. It would provide workers and employers with an opportunity for appeal within the WSIB but not have them stuck in a lengthy, multi-layer process that does not typically produce different results than the initial adjudication. It would in effect accelerate appeals to the WSIAT which has a higher rate of overturning WSIB decisions.

The legal and operational framework for a new consolidated appeals function within the WSIB would require engagement on the part of the WSIB, the government, and the WSIAT. Considerations would include the design of the appeals function, including the role of in-person hearings; new timeline standards for appeals decisions; human resources; and incremental resources to the Workplace Safety and Insurance Appeals Tribunal, which would ostensibly receive more appeals as a result. These are serious considerations that should not be taken lightly.

But the rationale for maintaining multiple layers of appeal at the WSIB seems difficult to justify given the delays and outcomes. Reforming the system can ultimately contribute to a more responsive and timely process for managing claims and adjudication, including appeals.

Recommendation 14

The Workplace Safety and Insurance Board and Workplace Safety and Insurance Appeals Tribunal should establish a new Quality Table to identify and anticipate trends through data analytics and actual case outputs in order to better inform adjudication guidelines and decision-making.

The Workplace Safety and Insurance Appeals Tribunal overturns a high rate of Workplace Safety and Insurance Board decisions, and yet there is no mechanism for enabling a two-way conversation that would incorporate key WSIAT decisions into the WSIB’s adjudication guidelines. This seems counterproductive for the two organizations as well as the workers and employers who are affected.

There is scope to protect the necessary independence of the two organizations and still enable a process for engagement where key principles are at issue. The goal should be to avoid having cases with similar characteristics regularly returning to the WSIAT on appeal.

The creation of a Quality Table with key representatives from both organizations could help in this regard. The purpose of the group would be to identify and anticipate trends through data analytics and actual case outputs. The Quality Table could work to ensure (1) a common understanding of the Workplace Safety and Insurance Board’s procedural documents including those related to claims and employer accounts and (2) that noteworthy WSIAT decisions are used to update the WSIB’s adjudication guidelines.

Recommendation 15

The Minister of Labour, Training and Skills Development should work with the Attorney General to ensure that representatives (including paralegals) participating in the occupational health and safety system are meeting a high ethical standard and properly serving their clients.

Legal representation is a key part of the workers’ compensation system. Most legal representatives (including lawyers and paralegals) do an excellent job representing their clients.

But the review did hear that some bad actors can contribute to weaker system-wide outcomes by providing poor representation before the WSIAT and charging exorbitant fees (including success fees of up to 30%) to their clients. This is unfair to workers who may be facing financial insecurity.

The Minister of Labour, Training and Skills Development should work with the Attorney General and in turn, the Law Society of Ontario to ensure that paralegals and other legal representatives participating in the system have sufficient training and a clear understanding of their professional standards and obligations. This is important to protect the reputations of the vast majority of paralegals and legal representatives who play a critical role in serving injured workers and to ultimately ensure that workers are receiving the representation that they deserve.

Recommendation 16

The Workplace Safety and Insurance Board should maintain a statistically relevant number of audits related to claim suppression through the implementation of the new Rate Framework.

The Workplace Safety and Insurance Board is now conducting targeted audits for claim suppression. This is a positive development. Its risk-based approach is also sensible. It will ensure that audits are targeted and efficient.

But it is important that, as the new rate framework is implemented, the WSIB maintain sufficient staffing and resources to protect a statistically relevant number of annual audits. It is beyond the capacity of the review to judge the optimal number of annual audits. But it should be much higher than planned for the foreseeable future in order to ensure that number of audits is statistically relevant and, in turn, can provide a credible basis to make judgments about the system’s performance. This will be key in ensuring that the new rate framework does not contribute to higher rates of claim suppression.

Recommendation 17

The Ministry of Labour, Training and Skills Development should increase budget funding for the Office of the Worker Adviser and the Office of the Employer Adviser to better serve workers and employers.

The Office of the Worker Adviser and the Office of the Employer Adviser do tremendous work representing the interests of workers and employers, respectively. Both offices are increasingly under financial strain due to rising demands for their services and representation. Increasing their capacity could help the WSIB and WSIAT alleviate appeals caseloads and revolve issues within the system more efficiently and effectively. The government should therefore consider modest increases to their budgets in order to meet these demands.

Determining the right level of incremental funding is difficult for the reviewers to judge. The Ministry of Labour, Training, and Skills Development should, therefore, consult with the Office of Worker Adviser, Office of the Employer Adviser, and broader stakeholders to determine the right funding levels for the two offices.

Recommendation 18

The government should amend the Labour Relations Act to clarify that labour unions must provide representation on behalf of their members in the occupational health and safety system including the Workplace Safety and Insurance Board.

Labour unions, by and large, do an excellent job providing representation on behalf of their members in the occupational health and safety system including with the WSIB and before the WSIAT. However, unlike collective bargaining, they are under no legal obligation to do so. The review heard that it would be useful to clarify this responsibility and in so doing ensure that any outliers are not undermining the great work that most unions do in the occupational health and safety system. A minor legislative change would level the playing field among unions and reinforce their key role in the system.

Recommendation 19

The Office of the Chief Prevention Officer should work with the Workplace Safety and Insurance Board and the Ministry of Labour, Training and Skills Development to coordinate better data collection and analysis — including developing a set of future-oriented indicators to better anticipate workplace trends.

Improving the outcomes-orientation of the government’s prevention-related programming will require better use of data. The goal here must be to shift the government’s prevention activities from focusing on outputs to targeting outcomes.

The Office of the Chief Prevention Officer is at the centre of the government’s prevention activities and yet most of the data is held by the WSIB and the Ministry of Labour, Training and Skills Development’s enforcement arm. There is a need for greater coordination in order to improve data collection and analysis. This includes developing a set of future-oriented indicators to better anticipate workplace trends rather than relying on backward-looking evidence.

These changes do not necessarily require legislative or policy changes. But it may require the creation of a steering committee, led by the Office of the Chief Prevention Officer, to identify data gaps and facilitate real-time data analysis. The outcome of this collaborative work can then be better informed and more targeted prevention-related programming.

Recommendation 20

The government should change its funding model for prevention-related programming by providing dedicated funding to the Health and Safety Associations for specialized training and services and launching a competitive funding pool for more general health and safety services and training.

The Office of the Chief Prevention Officer’s primary prevention-related activities are delivered through transfer agreements to the six Health and Safety Associations (HSAs). These organizations have become the de facto service delivery vehicles for the government’s prevention strategy.

The Health and Safety Associations do excellent work. They have highly specialized capacity and expertise. These activities are unique in the occupational health and safety training marketplace. But the Health and Safety Associations also carry out more generalized training and services where there is more robust supply by different service providers.

The government should aim to distinguish between the Health and Safety Associations specialized training and services for which there are no market competitors and more general activities for which there are different options in the marketplace. It should continue to provide dedicated funding to the HSAs for the former. It should launch a competitive process involving a wider range of players for the latter.

It is important to note that the Health and Safety Associations may ultimately submit the winning bids in the competitive funding pool. That would be a satisfactory outcome that would in effect, validate that they are providing the best training and services in the industry. It may also catalyse new consortium and different models. The government can only learn the outcome by opening the system to competition.

The government should consult with unions, employers, the HSAs and other stakeholders to identify which services and training should remain subject to dedicated funding to the Health and Safety Associations and which can be subject to a new, competitive funding process.

Recommendation 21

The government should enter into three- to five-year transfer agreements with the health and safety associations.

It is inefficient for the WSIB and the Health and Safety Associations that their transfer agreements are limited to one-year renewals. It consumes considerable attention and resources that could be better directed on actually delivering prevention-related programming. It also harms multi-year planning and makes it difficult for the HSAs to acquire training equipment and other capital assets.

The government should move the HSAs to multi-year funding agreements. The proper duration is flexible. It could be three years or five years. But it should cease being one year.

Recommendation 22

If the government adopts recommendations #22 and #23, it may consider increasing overall funding available for prevention-related programming.

Current funding levels for the Health and Safety Associations is approximately $80 million. If the government accepts the proposal to separate the funding based on specialized and general services, public funding for the HSAs could fall — depending on whether they are successful applicants in the competitive process. Increasing the overall prevention budget would help to mitigate this risk.

It would also ensure that the level of funding in the new competitive pool was high enough to catalyse the creation of new and different service delivery models. This will help to encourage different providers to develop bids to access the funding pool and permit the government to test out the effectiveness of different arrangements and models.

The right funding level for the government’s prevention activities will need to be determined following consultations on what parts of the Health and Safety Associations’ current training and services should continue to receive dedicated funding and which parts should be subject to a new, competitive process. But there is an opportunity for a funding increase beginning in 2021 or 2022 as part of the transition to the new programming model.

Recommendation 23

The Workplace Safety and Insurance Board’s board of directors should regularly prepare and provide a list of required board competencies to the Minister to help inform appointment decisions.

The Workplace Safety and Insurance Board’s Governance Committee is notionally responsible for monitoring the board of directors’ skills and competency profile and identifying gaps and needs. Yet the appointment of new board members is the purview of the Minister of Labour, Training and Skills Development and there is minimal consultation or engagement between the board and the Minister as part of this process. The risk is that it could produce competency gaps on the board especially as a number of board terms will expire in the coming months.

The Governance Committee of the WSIB should communicate skills and competency needs and identify gaps for upcoming appointment vacancies. The Chair should communicate those needs to the Minister to help inform decision-making and ensure good governance. The committee could update the gaps list regularly. The list would not be public. It would represent private advice to the Minister and would enable the board to provide input into the process and mitigate the risk of competency or skills gaps.

Recommendation 24

Appointments to the Workplace Safety and Insurance Board’s board of directors should have staggered expiration dates to ensure that several directors’ terms are not expiring at the same time.

It is important that the WSIB’s board of directors maintains an institutional knowledge and diverse set of competencies as members’ terms expire. A number of directors have had their terms expire in the past several months. It highlights the challenge of having their expiration dates concentrated in a short period of time. The government should therefore appoint new WSIB directors using staggered expiration dates so as to avoid the challenge of multiple expirations in a short timeframe. This will enable greater continuity during this period of transition for the Workplace Safety and Insurance Board.

Recommendation 25

The Workplace Safety and Insurance Board and the government should work with an independent advisor (such as Infrastructure Ontario) to conduct a review of the organization’s real property portfolio, including how the Workplace Safety and Insurance Board manages it, in order to identify possible efficiencies.

The Workplace Safety and Insurance Board has a considerable real property footprint — including its main office in Toronto. The WSIB should work with an independent advisor to conduct a review of its real property portfolio, including how the organization manages it, in order to identify possible efficiencies.

Its ongoing work with Infrastructure Ontario to develop a long-term strategy for its realty portfolio may inform possible reforms. There may be opportunities, in particular, to further decentralize the WSIB’s operations outside of the City of Toronto to realize savings and better serve workers and employers or to restructure leases to secure better terms or partner with other government agencies to share office space. This review does not prejudge the outcome of such an analysis. But it seems like a worthwhile exercise that could help the Workplace Safety and Insurance Board operate more efficiently.