STEPHEN
ROBERTS
Ontario’s Workplace Safety
and Insurance Board (WSIB)
recently announced that it will
significantly change its Labour
Market Re-Entry (LMR) Program. The expense involved in
retraining and reintegrating a
worker back to work after an
injury can often be quite substantial, and the WSIB recognized that changes were necessary to both improve results and
reduce costs.
When a person sustains an
injury and is unable to return to
work in his or her pre-injury job
or in other suitable work with
the accident employer, it is then
necessary to retrain the person
and find them alternative, suitable employment. If this process is unsuccessful, then the
worker will be paid future loss
of earnings to age 65, which can
be very substantial.
Ontario’s Workplace Safety
and Insurance Act includes
numerous provisions to pro-
mote the early and safe return
to work of workers with the
accident employer, and to
ensure that accident employers
re-employ their workers after
an injury. However, in some cir-
cumstances, workers are left
with permanent impairments
and restrictions, and cannot be
accommodated with suitable
work with their accident
employer. In these cases, the
WSIB will assist with the
retraining and determination of
a new suitable employment or
business for the worker, and pay
for the costs involved.
The return to work process
remained within the WSIB to be
administered internally, but the
LMR process was outsourced to
external service providers.
However, after 10 years of
experience with this model,
problems were evident. In
2009, the WSIB retained
KPMG to perform a value for
money audit of the WSIB’s LMR
program. On Dec. 3, 2009 the
audit report was finalized and
provided to the WSIB. The
report concluded that the LMR
program required fundamental
changes to achieve its intended
objectives and outcomes.
Provide direct oversight by
the WSIB for all retraining ser-
vices for injured workers;
Increase worker input and
choice in their vocational goals;
Make greater use of Ontario’s
public education system for
injured worker re-training;
Provide workers with market-
able skills and valid creden-
tials.”
Both the worker and
employer communities appear
to accept these changes.
Employers need to be aware
that the WSIB will look to them
first and foremost to re-employ
the worker in a suitable position
after a work injury. The WSIB
will assist employers in any
retraining that may be required
to accomplish this goal.
It makes good sense to have
the WSIB’s return to work and
LMR efforts joined together in
one combined program. The
WSIB’s unfunded liability has
been increasing over the past few
years and efforts are definitely
needed to reduce costs. Hopefully,
the WSIB’s new work reintegration program will be successful in
returning workers to work and
saving the costs of ongoing loss of
earnings benefits.
“It makes good sense
to have the WSIB’s
return to work and
[labour market
re-entry] efforts joined
together in one
combined program.
Stephen Roberts of the
McTague Law Firm LLP in
Windsor represents employers
only on workplace safety and
insurance and other employ-
ment related matters. He has
been certified by the Law Society
of Upper Canada as a specialist
in Workplace Safety and Insur-
ance Law and is the current
chair of the Workers Compensa-
tion Section of the Ontario Bar
Association.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca
Current prudent insurer test holds insureds to overly high standard
Disclosure
Continued From Page 9
insured would have done in the
circumstances. Courts already
consider the perspective of the
reasonable insured in interpreting questions in the application process, and ask how
that person would have understood the question.
A reasonable insured test
should also determine ques-
tions of materiality. Emphasis
should be on what a reasonable
person in the insured’s situation
would have considered relevant
in underwriting the proposed
risk. Relevant factors for that
determination would include
the prospective insured’s experi-
ence with insurance contracts,
the nature of the proposed risk,
circumstances in which cover-
age is sought and the insurance
amount. Failure to consult
health care professionals or
seek advice on particular mat-
ters would be considered
unreasonable if a prudent per-
son would be expected to do so
in similar circumstances.
Elizabeth Adjin-Tettey is the
Associate Dean, Administration
& Research, of the Faculty of Law
at the University of Victoria.
