- Board policies (referral for review)
- Permanent impairment {NEL} (degree of impairment) (knee)
This was the final decision following the interim decision of Decision No. 1052/22I. The interim decision determined a number of issues involving the worker's Non-Economic Loss (NEL) entitlement and deferred making a final decision on other issues that also involved NEL entitlement, in order for a policy referral to the WSIB to take place under section 126 of the WSIA. The policy referral addressed the lack of compliance of the WSIB's Operational Policy Manual (OPM) Document No. 18-05-03, Determining the Degree of Permanent Impairment, with the requirements of section 47 of the WSIA that govern the manner in which NEL medical assessments are to be conducted under the Act. Specifically, the policy did not address the Act's requirement for NEL medical assessments to be conducted by a roster physician chosen by the worker.
Subsequently, on September 29, 2023, the WSIB issued an amended version of OPM Document No. 18-05-03, that not only amended the manner in which reports of medical examinations were provided to employers, but which also restored the ability of workers undergoing NEL medical assessments to choose from a roster of physicians maintained by the WSIB. The amendments addressed the concerns that were identified in the interim decision in this matter. The worker was now required to undergo a medical assessment for the purpose of obtaining the information that is required to appropriately rate his loss of range of motion in his left ankle. The Vice-Chair also disagreed with the WSIB's submission that a response to the policy referral was not required in the circumstances of the appeal. The Tribunal has the authority to reverse decisions of the WSIB pursuant to its exclusive jurisdiction to determine appeals under section 123 of the Act. The decision to order a medical assessment of the worker by the Tribunal in the interim decision was beyond the authority of the WSIB to reverse or ignore (see Decision No. 1643/18R). Section 126 of the WSIA allows for the Tribunal to bring concerns with the compliance of a WSIB policy with the WSIA to the attention of the WSIB in order to receive a direction with reasons from the WSIB. The procedural requirements of section 47 of the WSIA provide for the participatory rights of workplace parties in the NEL assessment process, which were not referred to or provided for in OPM Document No. 18-05-03, prior to the revised version. The WSIA does not authorize the WSIB to require the Tribunal to apply provisions of policies that the Tribunal finds to be unlawful unless the Tribunal's determination that the policy is unlawful is reversed by the WSIB pursuant to its authority to do so in a subsection 126(8) direction.Having concluded that the policy was not consistent with the Act, it was necessary to follow the requirements of subsection 126(4) of the WSIA which direct that a policy referral occur. Pursuant to subsection 126(4) of the WSIA, it is the Tribunal that gets to determine when a policy referral is initiated. Once the Tribunal initiates the referral, the WSIB is then obligated to provide direction on the policy referral that is received. Furthermore, what is being referred to the Board for its review is the Board's own policy and not the subject matter of the appeal being considered by the Tribunal, as that lies within the exclusive jurisdiction of the Tribunal under section 123 of the WSIA. Furthermore, the WSIB's authority to provide "direction" under subsection 126(8) of the Act is restricted to "the issue raised in the policy referral". The Tribunal's ability to initiate a policy referral to the WSIB and to receive direction from the WSIB on the provisions of its policies is a legislatively intended check on the WSIB's extraordinary combination of powers. The WSIB's requirement to respond to a policy referral is therefore mandatory and not discretionary.