Workers' compensation: key considerations for 2022

by Jason Mandlowitz, President of Mandlowitz consulting and paralegal services

The workers’ compensation landscape continues to evolve. Recent workers’ compensation reviews and reports, in British Columbia and Newfoundland and Labrador, have focused on the need to shift the system to a more worker-centered model.

In Ontario, a worker agenda was central to the Government’s recent election platform which included a statement supporting an increase in benefit entitlement from 85% to 90% of net average earnings. Let us consider what should be the major considerations for workers’ compensation for 2022 and beyond.

1. Return to the workplace and remote work

Numerous workplace surveys have demonstrated a large percentage of workers support remote work and, specifically, work from home.  During COVID and the necessity for remote work locations the typical application of Occupational health and safety legislation was largely relaxed.  Health and safety audits of remote work locations did not keep pace with inspections of established workplaces.   With the continuation of flexible work arrangements the question that arises is how will health and safety legislation and regulations be administered by Government officials?

2. Medical services – telemedicine

Medical services during COVID shifted to an on-line model including enhanced telemedicine.  One advantage was easier access by patients to health care providers. This was particularly helpful for overrun health facilities and for patients who normally had to travel substantial distances to see a physician.  Telemedicine was also helpful for providing telepsychiatry and teletherapy.  Use of company-paid Employee Assistance Programs increased.  It did not address concerns for those with no family physician.  Insurers came to characterize this change as “medical cost inflation”. With the continuation of telemedicine the question that arises is whether a replacement for in-person examinations and assessments is consistent with the adjudicative needs of the worker’s compensation system.

3. Mental health challenges

Before COVID, North Americans were already experiencing significant mental health challenges.  Surveys have found that as many as 20% of adults were experiencing mental health issues and, of these, 5% were severe. A response by the workers’ compensation system was to extend benefit entitlement on a presumptive basis to first responders and other designated workers.  With sizeable mental health issues the question that arises is whether presumptive legislation will continue or be scaled back as the effects of COVID reside and whether presumptive legislation will be adopted for communicable diseases and future outbreaks?

4. Worker classification

Workers’ compensation systems have grappled with the definition of worker as the economy evolves. Government reaction has been to introduce piecemeal changes to employment legislation.  We now have a patchwork of classifications covering workers, learners and students, deemed workers, independent operators, dependent contractors, executive officers and partners, and gig and platform workers.  For a worker-centered model to be introduced this confusion must be addressed.

5. Administrative changes

In recent years workers’ compensation authorities have replaced outdated systems with technological changes. This shows signs of continuing in 2022 affording stakeholders greater access to their claims and information. COVID necessitated the change agenda be significantly advanced. We have seen workers’ compensation boards streamline claims adjudication, render more timely decisions, allow expedite payment to workers through direct deposit, etc.  The balance is to achieve modernization without losing the integrity of the adjudicative system. With these changes the system must ensure that the investigation component central to workers’ compensation is not lost.

6. Complicated claims

There has been a significant increase in the number and severity of complicated/complex claims including minor traumatic brain injuries, concussions, mental stress, psychotraumatic disability, chronic pain, and diagnosed somatic conditions. Claims data shows these types of claims take significantly longer to adjudicate and resolve.  With this trend a worker-centered system must take proactive action to develop specialized case management, employ an early intervention care model, and better organize psychological/psychiatric services.

7. Financial issues – worker supports

Critics of workers’ compensation assert the system financially disadvantages injured worker forcing them to apply for welfare or other disability benefits schemes: all of which are inadequate. There is no question that workers’ compensation benefits, even at 90% of net average earnings, can place a worker at financial risk.  This trend points to the need for a comprehensive review which addresses adequacy of all temporary and permanent benefit entitlement.  

8. Worker-centered financial issues – fairness

Any jurisdiction seeking to adopt a worker-centered approach to workers’ compensation would be well advised to undertake a “holistic” review of a number of related financial issues.  Piecemeal changes may meet an immediate need but will not position the workers’ compensation system to be fair to stakeholders.  As part of a comprehensive financial review the issues to be addressed include, but may not be limited to, the amount of loss of earning benefits, fairness of the current non-economic loss model, claw backs of earnings while on workers’ compensation, treatment of loss of earnings for concurrent employment, integration with other income support programs, and termination of loss of earnings at age 65.

In summary, the chief take away, is that for a shift to a worker-centered workers’ compensation model a great deal of work must occur.