Phase two - Independent living policy consultation (Serious Injury Program value-for-money audit consultation)

Introduction

Under the Workplace Safety and Insurance Act, 1997 (WSIA), we are required to have an external firm review the cost, efficiency, and effectiveness of one or more programs through a value-for-money audit. Our Serious Injury Program was the focus of a recent value-for-money audit.

The main conclusion of the Serious Injury Program value-for-money audit is that the Serious Injury Program demonstrates value for money. The audit also identified challenges and opportunities that exist with our independent living policies, which we agree with. Separate from policy-specific issues, the audit identified a common challenge underlying the policies as a whole: the “severely impaired” threshold that forms part of the entitlement criteria for most of the benefits and services in our independent living policies. In some cases, this threshold limits our ability to provide the most appropriate benefits and services based on individual needs. Because the underlying challenge with the threshold impacts most of the related policies, we reviewed the policies in two phases. The focus of phase one was cross-policy issues, such as the severely impaired threshold. In phase two, we are sharing proposed revisions to address the cross-policy issues consulted on in phase one; and identifying and proposing revisions to address policy-specific issues.

Consultation

Phase one (September 16, 2022, to October 14, 2022)

We sought feedback from stakeholders to support our review and analysis of the entitlement criteria for the various benefits and services in the independent living policies (OPM documents 17-06-02 to 17-06-08). We asked a series of questions about the severely impaired threshold entitlement criteria, as well as questions about the timing and duration of entitlement. 

We received 15 submissions from stakeholders (see “Phase one stakeholder submissions” for a list of stakeholders and their responses). A general overview of stakeholder feedback is provided in the section, “External stakeholder feedback”. Thank you to everyone who submitted feedback.

Phase two

We have carefully reviewed and considered all stakeholder feedback in developing our proposed revisions to the independent living policies. We are now welcoming stakeholder input on the Serious Injury Program value-for-money audit review of independent living policies.

The draft policies include both the refreshed entitlement criteria proposed for each policy and revisions to address benefit and service-specific issues. 

To supplement stakeholder review of the draft policies, this consultation report includes: 

• a summary of the main themes we heard from stakeholder feedback in phase one of the consultation
• a discussion about the severely impaired threshold
• highlights of proposed revisions for each policy, and
• highlights of two new policies.     

Note: In the sections that follow, reference to “permanent impairment” or “temporary impairment” should be read to include a permanent disablement or temporary disablement for accidents before January 2, 1990.

Report back and proposed draft policies

External stakeholder feedback

Overall, while stakeholder feedback acknowledges the administrative ease offered by the non-economic loss or permanent disability rating threshold, there is strong support for focusing entitlement criteria on individual needs. Stakeholders offered a variety of thoughts about how to do this. For example:

• Maintain the current non-economic loss or permanent disability rating levels or move to a lower non-economic loss or permanent disability rating as a means of automatic entitlement, with decision-maker discretion for case-by-case entitlement for lower non-economic loss or permanent disability ratings.
• Consider the individual circumstances of each case – do not use a non-economic loss or permanent disability rating. 
• Consider the impact of the work-related injury or illness on the person’s function and quality of life. 
• Consider the person’s work-related injury or illness and its impact to their function given their individual circumstances (e.g., social determinants of health).

The feedback of many stakeholders suggests that non-economic loss or permanent disability ratings are not a reliable indicator or are not the only indicator of the impact the work-related injury or illness has on someone’s independent living or quality of life. The implication of this is that while many of the people who meet the current threshold are entitled to and receive the independent living and quality of life benefits and services they need, there are:

• some people who meet the rating threshold and therefore are entitled to be considered for all the independent living and quality of life benefits and services, but may not need every benefit and service 
• some people who do not meet the rating threshold and therefore are not entitled to be considered for the independent living and quality of life benefits and services, despite being unable to function independently on a permanent basis, and,
• some people who will not meet the rating threshold on a permanent basis and therefore are not entitled to be considered for the independent living and quality of life benefits and services despite being unable to function independently on a temporary basis.

Stakeholders also provided feedback supporting: 

• providing entitlement to certain benefits and services in the independent living policies sooner than currently occurs
• making short-term or temporary entitlement available, and, 
• reviewing entitlement to benefits and services as someone’s condition changes. 

Stakeholder feedback also suggested considering whether any of the benefits and services provided for in the independent living policies may be necessary, appropriate, and sufficient for workers with psychological injuries – most of whom do not currently meet the rating threshold. The WSIB provides supports and services specific to psychological injuries. In doing so, people with these types of injuries have access to the health care most appropriate for psychological injuries, which may include benefits and services in the independent living policy suite where they meet the applicable criteria. Despite this, several stakeholders expressed a view that the independent living policies focus primarily on addressing physical functional limitations and this does not adequately address the needs of people with psychological injuries. 

Among employer stakeholders, there was recognition of our obligation to administer the workers’ compensation system in a financially responsible and accountable manner. There were also questions about the fairness of the last employer of record bearing responsibility for all costs in claims where someone becomes severely impaired through injuries or illnesses with multiple employers. Our rate-setting model features various tools to ensure fairness when considering an employer’s individual claims experience, such as claim cost limits, a defined claim cost review period, and excluding claim costs for some long-latency conditions and diseases. Our Health and Safety Excellence program also helps make workplaces safer and reduces the risk of injuries and illnesses, thereby reducing claim costs. While changes to the rate-setting model and the last employer of record are outside the scope of this review, we have noted this feedback for the next time these items are subject to review. 

In addition to feedback about entitlement and its timing and duration, some stakeholders provided opposing feedback about specific benefits or services. For example: 

• The independent living allowance lump sum amount is adequate.
• The independent living allowance lump sum amount is inadequate given the services and equipment this benefit is intended to cover. 
• The current allowance amounts should be the minimum amounts paid, with the opportunity to pay more depending on the facts of the case. 
• The independent living allowance should continue to be provided as a lump sum, giving people discretion to choose which services and items to purchase to facilitate their independent living and improve their quality of life. 
• The independent living allowance should be replaced with a reimbursement model and/or fee schedule.
• Emotional support/therapy dogs should be included in the Guide and Support Dogs policy.

The above offers a summary of the main themes from the stakeholder feedback. Stakeholder feedback in its entirety is available in the individual submissions.

Entitlement threshold

As validated by the value-for-money audit and stakeholder feedback, using a 60% non-economic loss/100% permanent disability rating as the threshold for many of the independent living benefits and services is not the most appropriate or the best measure of the impact of the work-related impairment. It results in a misalignment between injured peoples’ needs and their eligibility for the benefits and services available to support independent living and quality of life following a work-related injury or illness. 

As we saw in the stakeholder feedback, the needs and potential of each person following a workplace injury or illness will depend on more than their non-economic loss or permanent disability rating. Individual circumstances such as age, general health, personal support network, socio-economic status, physical environment, and more, all play a role. 

We propose ending the use of a specific non-economic loss or permanent disability rating as a criterion for entitlement to the benefits and services in the independent living policies. This will better meet the individual needs of people whose serious work-related injury or illness impacts their independent living and/or quality of life, permanently or for more than the initial acute period following the injury or illness onset.

Going forward, we propose new entitlement criteria in the place of a specific non-economic loss or permanent disability rating. In developing or revising the criteria for each benefit and service, we considered: 

• the objective of providing the benefit or service (e.g., mobility, communication, self-care) 
• the other benefits and services available in the independent living policies and all our other health care policies that serve the same objective (e.g., attendant services instead of a personal care allowance), and 
• which measures are likely to be necessary, appropriate, and sufficient¹, and in which circumstances (e.g., a temporary ramp may be sufficient to meet the mobility needs of someone with a temporary impairment rather than structural modifications to their front porch). 

The intended outcome is to provide people with the benefits and services that are necessary, appropriate, and sufficient to support their independent living, and in some cases quality of life, as soon as they need them, for as long as they need them. 

Note: Despite proposing to end the use of the non-economic loss or permanent disability rating, we are committed to maintaining benefits and services already approved and provided under the existing independent living policies, such as the independent living allowance and personal care allowance, unless there is a material change in circumstances. We intend for the revised policies to apply to requests for benefits and services that result from a new entitlement or a material change in circumstances for an existing entitlement, and to requests for maintenance, repair, or replacement of previously approved and provided devices and equipment.

¹ Under s. 33 (1) of the Workplace Safety and Insurance Act, 1997, a worker who sustains an injury is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.

Independent living and quality of life policies

**NEW** 17-06-01, Independent Living and Quality of Life Measures - Overview and Definitions draft

This new policy defines serious injury, serious illness, and severe impairment for the purpose of independent living and quality of life benefits and services. It also provides information about the measures we consider appropriate to facilitate independent living and quality of life.

Highlights of new draft policy

• Define key terms used throughout the independent living and quality of life policies, including serious injury, serious illness, and severe impairment.
• Provide guidance about the injury and illness outcomes that may impact someone’s ability to live independently. 
• Explain that independent living measures are those that assist a worker in carrying out their activities of daily living and instrumental activities of daily living and identify the specific benefits and services we find appropriate to facilitate independent living.
• Explain that quality of life measures are those that that will increase a worker’s ability to participate in personal, family, and social activities and identify the specific measures the WSIB considers appropriate.
• Explain that entitlement to an independent living or quality of life benefit or service depends on a finding that it is necessary, appropriate, and sufficient based on the individual facts and circumstances of someone’s case. 
• Identify benefits and services available to someone whose injury or illness has a temporary, short-term impact on their ability to live independently. 
• Identify benefits and services available to someone whose injury or illness has a longer term or permanent impact on their ability to live independently or on their quality of life.
• Outline where a potential benefit or service is not considered to be necessary, appropriate, and sufficient, based on the individual facts and circumstances of someone’s case.

Independent Living Allowance (17-06-02)

The independent living allowance provides financial assistance to eligible people to offset the costs of services (e.g., home maintenance, taxis), devices under $250, and other items or expenses (e.g., increased insurance for modified vehicle) that improve their ability to function independently and improve their quality of life.

Key challenges and opportunities

• The 60% non-economic loss/100% permanent disability entitlement threshold prevents people with injuries or illnesses that significantly impact a person’s ability to live independently, but that have not resulted in severe permanent impairments from receiving the allowance, even where it could help improve their outcomes following the injury.
• The 60% non-economic loss/100% permanent disability entitlement threshold results in eligible people not receiving the allowance as soon as they could benefit from it. 
• The allowance structure of a single, annual lump sum covering a variety of services, devices, and expenses is not conducive to providing the right benefits and services to the people who need them, when they need them, for as long as they need them. 
• The dollar value of the allowance is insufficient given the range of services, devices, and expenses people must cover using the allowance.

Highlights of proposed revisions

To address challenges such as those listed above, we propose a number of revisions to 17-06-02, Independent Living Allowance. Some of these are described below. The changes we are proposing may be viewed in their entirety in the draft policy

• Replace the 60% non-economic loss/100% permanent disability entitlement threshold with criteria that take diagnosis into account and the temporary or permanent functional impairment resulting from the work-related injury or illness.
• Pending technological feasibility, separate the single, annual lump sum into four monthly allowances, each with a specific purpose: 1) home maintenance, 2) transportation, 3) additional expenses for WSIB-approved modifications or devices, and 4) quality of life. 

• Reduce the scope of services, devices, and items to be covered by the allowances. Entitlement to devices costing less than $250 would be considered under

  17-06-03, Independent Living Devices proposed revisions
  , similar to devices costing $250 or more. Entitlement to hobby-related expenses would be considered under the new policy,
  17-06-09 Quality of life benefits draft
  .

• Publish the dollar values for each allowance in 18-01-05, Table of Rates to preserve the opportunity to annually revisit the values of these allowances in future years.

Note: The proposed guidelines for the quality of life allowance are available in the new policy,

17-06-03, Independent Living Devices

We reimburse the costs of devices costing more than $250 that help restore eligible peoples’ ability to communicate, be mobile, engage in self-care, or help them avoid further injury or prevent future health complications due to the work-related injury or illness. Reimbursing the cost of these devices helps eligible people to function independently.

Key challenges and opportunities

• The 60% non-economic loss/100% permanent disability entitlement threshold prevents people with injuries or illnesses that significantly impact their ability to live independently, but that have not resulted in such a rating from being considered for independent living devices that could help them to function independently.
• The policy precludes reimbursing people for independent living devices costing less than $250 even where they may be necessary, appropriate, and sufficient. Instead, people are required to use their independent living allowance for such devices. 
• It is unclear which devices should be considered under the Independent Living Devices policy (17-06-03) versus other policies that provide for health care items (e.g., 17-07-04, Hearing Devices, 17-07-05, Orthopaedic, 17-07-06, Health Care Equipment and Supplies) and hobby equipment (e.g., 17-06-02, Independent Living Allowance).

Highlights of proposed revisions

To address challenges such as those listed above, we propose a number of revisions to 17-06-03, Independent Living Devices. Some are described below. The changes we propose may be viewed in their entirety in the draft policy

• Replace the 60% non-economic loss/100% permanent disability entitlement threshold with the criteria that the person have a permanent impairment as a result of the work-related injury or illness that results in a permanent or long-term functional limitation. In addition to this, similar to the current policy, the independent living device must serve one of the objectives outlined in the policy and meet the criteria for devices identified in the policy. 
• Consider entitlement to devices costing less than $250 rather than requiring people to use their independent living allowances for these expenses.

• Consider entitlement to hobby equipment under the new policy,

  17-06-09 Quality of life benefits draft
  .

• Cross-reference to policies that provide for other health care items someone may be eligible for to improve clarity about the scope of the independent living devices policy.

17-06-04, Guide and Support Dogs

We pay for the purchase and training of a guide dog or support dog, and for mobility training for the person. We also provide an allowance to cover routine veterinary care and maintenance costs (e.g., nutritional needs, annual examinations, and inoculations) and pay for extraordinary veterinary care and treatment.

Key challenges and opportunities

• The 60% non-economic loss/100% permanent disability entitlement threshold prevents some people with significant injuries from being considered for guide and support dogs that could help them to live independently.
• Key terminology is outdated and is not defined in the policy, making it unclear what types of service animals are eligible for coverage.

Highlights of proposed revisions

To address challenges such as those listed above, we propose revisions to 17-06-04, Guide and Support Dogs. The changes we propose may be viewed in their entirety in the draft policy

• Clarify that someone may be considered for entitlement to a guide or service dog where their ability to live independently is impacted as a result of a work-related designated condition, regardless of their non-economic loss/permanent disability rating.
• Clarify that the designated conditions listed are the only ones for which we consider there to be evidence of the effectiveness of animal-assisted intervention in reducing the impact of the work-related condition on someone’s ability to live independently. 
• Outlines the criteria for determining that a guide or service dog is necessary, appropriate, and sufficient for someone with a work-related designated condition.

Personal Care Allowance (17-06-05)

People who have difficulty with their activities of daily living are entitled to a personal care attendant arranged through an agency that we pay directly. Severely impaired people are entitled to a personal care allowance to hire their own attendants to help them complete their activities of daily living.

Key challenges and opportunities

• The policy does not address entitlement to an agency attendant for those who do not meet the 60% non-economic loss/100% permanent disability threshold.
• The 60% non-economic loss/100% permanent disability entitlement threshold prevents some people with injuries or illnesses that impact their ability to complete their activities of daily living from being considered for a personal care allowance that could help them.
• The three categories of attendant care, each with its own hourly rate, require complex calculations that may delay payments of the allowance.
• The policy does not address the provision of personal care on a temporary basis.

Highlights of proposed revisions

To address challenges such as those listed above, we propose revisions to 17-06-05, Personal Care Allowance. The changes we propose may be viewed in their entirety in the draft policy

• Clarify that people who need help to complete their activities of daily living on a temporary or permanent basis will be entitled to a personal care attendant provided by an agency, regardless of their non-economic loss/permanent disability rating.
• People who need help to complete their activities of daily living on a permanent basis or who need temporary personal care while undergoing treatment for a serious illness will be entitled to a personal care allowance to hire their own attendant, regardless of their non-economic loss/permanent disability rating.
• Pending technological feasibility, people who qualify for the allowance will be assigned to one of five levels of care based on their ability to complete their activities of daily living. Each level of care will have its own flat monthly rate which will be indexed annually. Monthly amounts currently being paid will not be reduced. 

17-06-06, Home Care

A person may be entitled to a home care program to receive health care services (e.g., nursing care, physiotherapy, occupational therapy) in their own home when their needs cannot be met on an out-patient basis.

Key challenges and opportunities

• The home care program is not clearly outlined in 17-06-06, Home Care.

Highlights of proposed revisions

• Clearly outline the home health care program, its purpose, and key features in the draft policy

  17-06-06 Home Health Care proposed revisions
  .

17-06-07, Vehicle Modifications

We reimburse the costs of vehicle modifications for eligible people where these modifications are essential to the safe operation of, or to the person’s ability to enter, leave, and operate their vehicle. Reimbursing the costs of vehicle modifications so that a person can perform their instrumental activities of daily living enables their independent living.

Key challenges and opportunities

• Greater clarity could be provided about which vehicles are eligible for modification. 
• Greater clarity could be provided about the scope of what we do and do not reimburse with respect to vehicle modifications (e.g., upgrades in new vehicles purchased by the person, multiple vehicles). 
• Greater clarity could be provided about responsibility for costs related to vehicle modifications (e.g., maintenance, repair and replacement, insurance, damage arising from motor vehicle accidents). 
• There may be circumstances where it is more timely or cost-effective to procure a purpose-built accessible vehicle, rather than modifying someone’s existing vehicle.

Highlights of proposed revisions

To address challenges and opportunities, such as those listed above, we propose revisions to 17-06-07, Vehicle Modifications. The changes we propose may be viewed in their entirety in the draft policy

• Introduce a definition of vehicle as well as criteria the vehicle must meet before we will consider it eligible for modification.

• Clarify our longstanding interpretation and/or practice to:  
  • reimburse the cost of features in a new vehicle purchased by the person that are required due to the functional impairment resulting from the work-related injury or illness, where these features are not standard in the base model of the vehicle
  • approve modifications to a subsequent vehicle once the useful lifespan of someone’s current modified vehicle expires or where there are permanent changes in the work-related injury or illness and it is not practical to further modify the current vehicle
  • reimburse for maintenance, repair, and replacement of modification equipment, and
  • not reimburse for general vehicle maintenance, insurance, and repairs arising from motor vehicle accidents.
• Introduce a new guideline where we will contribute a portion of the cost of a purpose-built accessible vehicle where this is a similar or lower cost than the value of someone’s current vehicle and the cost of modifying it.

17-06-08, Home Modification

We authorize home modifications to facilitate independent living where the person meets the 60% non-economic loss/100% permanent disability entitlement threshold due to a work-related injury or illness.

Key challenges and opportunities 

• People with a temporary need for home modifications, and those who do not meet the 60% non-economic loss/100% permanent disability threshold, are excluded from provisions of the policy.
• Provisions of the policy regarding secondary residences, rental properties, relocation, and the purchase of a home by the person are not clearly outlined.
• The policy does not address moving costs or increased rent following an approved relocation, or the ownership of home modifications and installed devices.

Highlights of proposed revisions 

To address challenges and opportunities, such as those listed above, we propose revisions to 17-06-08, Home Modification. The revised policy aligns with our practice. The changes we propose may be viewed in their entirety in the draft policy

• Clarify that entitlement is considered for people who need home modifications to live independently but who do not meet the 60% non-economic loss/100% permanent disability threshold.
• People with a temporary need for home modifications will be entitled to minor modifications (e.g., grab bars, railings, ramps), regardless of non-economic loss/permanent disability threshold. 
• People with a permanent need for home modifications will be entitled to major modifications (e.g., widened doorways, lifts, additions to the home), regardless of non-economic loss/permanent disability threshold.
• Clarify the criteria for modifications to secondary residences, relocations following a significant life change, and the reimbursement of the costs of accessibility features in a home purchased by the person instead of paying for modifications to a current home.
• Clarify that people who rent or lease their homes are entitled to the same home modifications as those who own their homes.
• Introduce reimbursement for moving costs and increased rent following an approved relocation or home purchase by the person.
• Clarify that the person owns all home modifications and installed items.

**NEW** 17-06-09, Quality of Life Benefits draft 

This new policy will introduce a quality of life allowance that is currently provided as a component of the independent living allowance. The policy will also address entitlement to hobby equipment and related expenses, as well as mental health supports for eligible family members.

Highlights of draft policy

• People with a work-related severe impairment that is permanent may be entitled to a quality of life allowance that covers physical fitness and recreational programs, and/or general interest courses.
• To be eligible, a maximum medical recovery date must have been determined, the person must be following their return-to-work activities, where applicable, and the work-related severe impairment must impact the person’s ability to integrate into or participate in personal, family, or social activities. 
• Pending technological feasibility, the quality of life allowance will be paid monthly, like the allowances related to independent living.
• People with a work-related severe impairment that is permanent may also be entitled to the reimbursement of certain hobby-related expenses. The same criteria as for the quality of life allowance apply, except the severe impairment must reduce the person’s ability to participate in the hobby. 
• The policy outlines that it must be feasible, safe, and practical for the person to participate in the hobby.
• Hobby-related expenses include required equipment and modifications, supplies, instruction or training, and start-up costs.
• The policy also includes mental health supports for eligible family members of people with a work-related severe impairment.

How to respond

We thank all stakeholders for their feedback and welcome any new or updated feedback in response to this next phase of the Serious Injury Program value-for-money audit consultation. 

We invite stakeholders to submit written feedback about the proposed entitlement criteria and proposed revisions addressing issues specific to benefits and services. All feedback is valuable to us and we will consider it carefully.

Please submit your response to the Consultation Secretariat. Written submissions will be accepted until June 12, 2024. We look forward to hearing from you.

Please note that all stakeholder submissions will be posted on this page following the consultation.

Appendix

Canadian Manufacturers and Exporters (CME)

Eugene Lefrancois

IAVGO Community Legal Clinic

Injured Workers Community Legal Clinic (IWCLC)

LA Liversidge, LLB

Mechanical Contractors Association Ontario (MCA)

Northumberland Community Legal Clinic 

Office of the Worker Adviser (OWA)

Ontario Federation of Labour (OFL)

Ontario Network of Injured Workers Groups (ONIWG)

Schedule 2 Employers Group (S2EG)

The Legal Clinic

Thunder Bay & District Injured Workers Support Group

United Steelworkers District 6 (USW)

Workers’ Health and Safety Legal Clinic (WHSLC)

Note: Submissions are posted in the format they were received. If you require them in an alternate format, please contact the consultation_secretariat@wsib.on.ca.

Phase one - Serious Injury Program value-for-money audit consultation - Review of the Independent Living policy suite

Introduction

Under the Workplace Safety and Insurance Act, 1997 (WSIA), the WSIB is required to have an external firm review the cost, efficiency, and effectiveness of one or more WSIB programs through a value-for-money audit (VFMA). The WSIB’s Serious Injury Program (SIP) was the focus of a recent VFMA.

The SIP provides people who experience serious injuries at work with the specialized treatment, equipment, and services they need to enable functional recovery; support return to work where possible; facilitate independent living to the extent possible; and improve quality of life.

The main conclusion of the Serious Injury Program VFMA is that the program demonstrates value for money. To further improve the program’s performance, recommendations were made across nine themes. The following observation (observation three) and recommendation (recommendation one) appear under theme 5.5, Policies, processes, and procedures:

• Observation summary: Specific policies have not been reviewed to determine if threshold criteria and benefits continue to match the needs of injured workers, and have not been updated to reflect changes in the needs of injured workers and/or workers' needs.
• Recommendation: Review and refresh benefits related eligibility criteria and services provided for in the suite of benefits policies to ensure they meet the needs of workers across the spectrum of service delivery, including seriously injured workers. As needed, engage key stakeholders as part of the consultation.

As identified in the VFMA, leading practice for eligibility criteria is to base severe impairment criteria on medical (e.g., diagnosis) and functional definitions (e.g., ability to participate in day-to-day activities) and tools, rather than solely or primarily a permanent impairment rating (whether through a single or multiple claims). Most Canadian workplace compensation boards consider the person’s needs and reduced abilities resulting from their work-related injury or illness, rather than an impairment percentage, when determining entitlement to benefits and services similar to those provided for in the independent living policy suite. The boards that do identify an impairment percentage as part of their criteria will still consider providing benefits and services despite the permanent impairment percentage in some circumstances.

The VFMA and its recommendations present the opportunity to assess whether the current entitlement criteria result in people with serious work-related injuries being provided with the personalized benefits and services they need for improved recovery and return to work outcomes, to facilitate independent living, and to improve quality of life.

The VFMA identified the challenges that exist with the independent living policy suite; challenges that SIP staff have validated. The common challenge underlying the suite as a whole is the “severely impaired” threshold that forms part of the entitlement criteria for most of the benefits and services covered in the policy suite. Noting this, the policy review will occur in two phases: 

• Phase one: The WSIB will seek information from stakeholders to support its analysis of the entitlement criteria for the benefits and services provided for in the independent living policy suite with a focus on the severely impaired threshold.
• Phase two: The WSIB will share its findings from phase one, and, if applicable, the refreshed entitlement criteria being recommended as a result. Revisions to improve the consistency and equity of benefits and services may also be proposed at this time.

Background

WSIB Serious Injury Program

The SIP is for people who experience a serious work-related injury (including those who are severely impaired as defined in the Operational Policy Manual).¹ The serious injury may result from a single incident, or a worsening of a prior impairment, or an accumulation of multiple impairments. Generally, this would be:

• a new catastrophic work-related injury (e.g., certain spinal cord injuries, major amputations, industrial blindness, extensive burns, moderate and severe brain injuries) with an anticipated non-economic loss (NEL) benefit of 60 per cent or greater,
• a new significant work-related injury that meets the criteria for acute care (e.g., certain bilateral fractures, bilateral hand burns, certain brain injuries),
• a 60 per cent NEL under one or more claims,
• a 60 per cent NEL equivalent after a composite rating which combines NEL and permanent disability (PD) benefits, or
• an injury prior to January 1, 1990, and a PD benefit of 100 per cent.

Legislation

A person who experiences a work-related injury or illness is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury or illness and as determined by the WSIB. The WSIA (s.32) provides that health care means:

• professional services provided by a health care practitioner
• services provided by or at hospitals and health facilities
• (prescribed) drugs
• the services of an attendant
• modifications to a person’s home and vehicle and other measures to facilitate independent living as in the Board’s opinion are appropriate
• assistive devices and prostheses
• extraordinary transportation costs to obtain health care
• such measures to improve the quality of life of severely impaired workers as, in the Board’s opinion, are appropriate.

Many of the aforementioned forms of health care are oriented toward recovery, to the extent possible, from the injury or illness itself (e.g., prescribed drugs) or minimizing the functional impact of the injury or illness (e.g., assistive devices and prostheses). These forms of health care are broadly available to all people with work-related injuries or illnesses, provided the WSIB finds they are necessary, appropriate and sufficient as a result of the injury or illness.

In addition to these more broadly available forms of health care, the WSIB has discretion to provide coverage for measures its finds are appropriate to: a) facilitate independent living and b) improve the quality of life for those with severe impairments. The WSIA does not define independent living, quality of life, severe impairment, or serious injury.

Policy framework

The OPM includes a suite of policies that provide guidance about the benefits and services the WSIB has determined are appropriate to facilitate independent living and/or quality of life: the independent living policy suite.

These benefits and services are primarily available to injured people within the SIP. Most of these benefits and services require that the severely impaired threshold is met. However, not all injured or ill people in the program meet that threshold, particularly those in the acute care stream, and are therefore not eligible for many of these benefits and services.

* Details about the benefit/service specific criteria are available in Appendix one: Entitlement criteria for independent living policy suite

Severely impaired entitlement threshold

Most of the benefits and services provided for in the independent living policy suite include the severely impaired threshold as part of the entitlement criteria. An injured person is considered severely impaired if their disabilities/impairments are:

• permanent and have been rated for either PD benefits totaling at least 100 per cent, or NEL benefits totaling at least 60 per cent, or
• likely to be permanent in the opinion of a WSIB medical consultant, and are likely to meet one of the criteria above.

The origins of the severely impaired threshold can be traced back to the pre-1989 Act², which provided for “…such other treatment, services or attendance as may be necessary as a result of the injury for those rendered helpless through permanent total disability”, which was interpreted as being a 100 per cent PD rating. The 100 per cent PD rating was thus established as the threshold for those benefits and services available to people with the most serious injuries.

The pre-1997 Act³ contained a similar provision to that in the pre-1989 Act, but identified people “rendered helpless through permanent total impairment”. The WSIA references neither total disability nor total impairment. Rather, the WSIA provides for health care measures specific to injured people with severe impairments.

The use of the 60 per cent threshold for NEL ratings (versus 100 per cent for PD ratings) arises from the difference between permanent disability and permanent impairment. As outlined in the pre-1997 Act, “disability” means “the loss of earning capacity of the worker that results from an injury”, while “impairment” means any “physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss”, and does not take into consideration the impact on ability to earn.

The basis for rating PDs is the Ontario Rating Schedule that estimates the impairment of earnings capacity in an average unskilled worker in more traditional jobs⁴. The basis for rating permanent impairments is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) that assesses “what is wrong with a body part or organ system and its functioning”⁵ as opposed to the impact of the impairment on employability. Of note, neither rating tool specifically measures the impact of the impairment on the person’s ability to carry out their activities of daily living and other activities outside of employment. Very few medical conditions are assessed as 100 per cent under the AMA Guides. Requiring a 100 per cent NEL rating would result in people with injuries the same as or similar to those rated at 100 per cent PD not having access to the same benefits and services. To address this, the WSIB sought to identify a NEL threshold that was equivalent to 100 per cent PD. It was concluded that setting the threshold at 60 per cent NEL would result in similar benefits being available for similar groups of injured people under both the PD and NEL systems.

Opportunity

The severely impaired threshold is a policy requirement for entitlement to certain health care benefits and services. While the threshold has been used as a way to identify which claims should be managed in the SIP, admittance into the program appropriately is not set out in policy. This is because the criteria for entitlement to the health care benefits and services set out in policy and the criteria for having a claim managed in the program are not necessarily the same.

In the past, admittance into the program was limited to those already rated or likely to be rated as meeting the severely impaired threshold. More specifically, catastrophic injuries, cumulative NELs/PDs, and worsening NELs/PDs were managed in SIP. The scope for admittance into the program has since expanded to include those with an injury meeting the criteria for acute care: those with a significant injury that temporarily requires specialized benefits and services similar to those required by an injured person who meets the severe impairment threshold.

People with injuries meeting the criteria for acute care often have immediate and significant needs given the impact of the work-related injury on their basic activities of daily living (ADLs). However, once maximum medical recovery is reached in these cases, the resulting permanent impairment does not usually meet the severely impaired threshold. The SIP temporarily manages these claims, immediately following the injury and up until the injured person reaches independence in their ADLs (typically up to nine months).

The benefits and services provided for in the independent living policy suite were not subject to a corresponding substantive review at that time, to take into consideration this change in scope for admittance into the program. Thus, while the SIP is able to leverage the benefit of the program’s specialized and dedicated case management in these acute care claims, the severely impaired threshold limits the benefits and services available in these claims relative to others in the program. This, despite the fact that an injured person with an acute care claim actually may have similar or greater limitations and needs than others in the program, whether on a temporary or permanent basis. 

As suggested in the VFMA, using the severely impaired threshold may be contributing to a misalignment between people’s needs and the benefits and services to which they are entitled, as demonstrated by the two personas below.

Some injured people in the SIP are not considered for entitlement to benefits and services that could improve functional outcomes, return-to-work outcomes (where applicable), independent living and quality of life.

Some injured people in the SIP are considered for entitlement to benefits and services they need and to benefits and services they may not necessarily need.

The VFMA and its recommendations present the opportunity to review the scope of benefits and services provided to people in the SIP and the associated entitlement criteria. In particular, to consider whether the current entitlement criteria result in people with serious injuries receiving the personalized benefits and services that:

• improve recovery and return to work outcomes
• facilitate independent living and improve quality of life by enabling participation in all aspects of life.

Questions for stakeholders

Below are questions about entitlement criteria, as well as the timing and duration of entitlement. Responses to these questions will support the WSIB’s review and analysis of entitlement to the benefits and services provided for in the independent living policy suite.

1. Does the severely impaired threshold continue to be a suitable criterion for considering entitlement to the benefits and services in the independent living policy suite?
2. Is someone’s permanent impairment rating or expected permanent impairment rating a reliable indicator of the scope and duration of the benefits and services they are likely to need as a result of the work-related injury or illness?
3. Does the severely impaired threshold result in people with serious injuries receiving the benefits and services they need as a result of the work-related injury or illness?
4. Identifying entitlement criteria for benefits and services supports consistent and predictable decision-making. Aside from the NEL and PD rating, are there other criteria or measures that would better indicate whether someone might need a particular benefit or service? For example, lack of independence with activities of daily living (ADLs), independence with instrumental activities of daily living (I-ADLs), combination of diagnosis and function, standardized tests or assessments.
5. Many of the benefits and services in the independent living policy suite contemplate long-term, permanent needs. Are there circumstances in which it would be beneficial to provide any of these benefits or services on a short-term or temporary basis?
6. Immediately following a work-related injury or illness, treatment and recovery are the primary focus.
   1. At what point in a person’s recovery should benefits and services to facilitate independent living be considered? Are there specific factors or indicators that should be considered?
   2. At what point in a person’s recovery should benefits and services to improve quality of life be considered? Are there specific factors or indicators that should be considered?
7. Are there benefits and services that should be provided immediately and reviewed as the injured person’s needs change?
8. Are there benefits and services that should be provided only once it is clear what the injured person’s long-term needs are/likely are?
9. Do universal benefit amounts (e.g., flat rate for the independent living allowance) continue to be appropriate for meeting the needs of people with serious injuries?
10. Aside from the severely impaired threshold, do the other entitlement criteria in each of the individual policies in the independent living policy suite allow for the provision of benefits and services that align to the needs of those with severe/significant injuries? 

¹The Occupational Disease and Survivors Benefit Program manages the claims of people with occupational diseases, including those who meet the severely impaired threshold as a result of an occupational disease.

² Workers’ Compensation Act, R.S.O. 1980, as amended. Applicable to accidents on or before January 1, 1990

³ Workers’ Compensation Act, R.S.O. 1990, as amended. Applicable to accident dates from January 2, 1990 and December 31, 1997 (inclusive)

⁴ Operational Policy Manual document 18-07-02, The Ontario Rating Schedule. WSIB. October 2004.

⁵ American Medical Association. Guides to the Evaluation of Permanent Impairment, Third Edition (Revised)