1. Introduction
From November 30, 2021 to February 28, 2022, the Workplace Safety and Insurance Board (the “WSIB”) held a public consultation on the draft Occupational Disease Policy Framework (the “Framework”).
Thank you to everyone who submitted feedback on the draft Framework. The WSIB carefully considered all feedback received and used it to inform revisions to the Framework. This consultation summary report includes background on the Framework, an overview of the consultation process, a summary of what the WSIB heard from stakeholders, and the WSIB’s responses.
2. Background
The Framework is a core component of the WSIB’s Occupational Disease Strategy. The goal of the strategy is to achieve a more responsive and sustainable approach to occupational disease policy development and to aid claims adjudication. The Framework together with the Scientific Advisory Table on Occupational Disease (the “Table”) and the WSIB’s Research and Grants Program make up the strategy’s three foundational activities that will move the WSIB closer to achieving this goal.
The Framework outlines a systematic, transparent, and evidence-based approach to the identification and recognition of occupational diseases in Schedules 4 and 3, and operational policy. Recognizing occupational diseases in schedules and policy enables the quick and efficient allowance of occupational disease claims. Schedules and policy streamline decisions on work-relatedness (i.e., whether the occupational disease is due to the nature of their employment), particularly in cases involving long-latency, multifactorial occupational diseases. They also bring greater transparency and consistency to these decisions.
The recognition of an occupational disease in a schedule or policy requires investigating and determining disease causation at the general level (i.e., is an occupational risk factor a cause of a disease?) rather than at the level of an individual (i.e., did the occupational risk factor(s) to which the worker was exposed significantly contribute to their disease?). This will involve some level of review and synthesis of the body of scientific evidence, typically, epidemiologic research, that has studied the relationship between the occupational risk factor and disease in human populations.
The role of scientific evidence in scheduling and policy development is well-established. The Occupational Disease Advisory Panel (“ODAP”) Chair’s Final Report, which remains the seminal report about the use of scientific evidence and legal principles in the compensation of occupational diseases in Ontario, recognized that schedule entries and occupational disease policies are primarily derived from scientific evidence on disease causation.1The Framework is based on the approach to occupational disease policy development outlined in the ODAP Report. More recent reports have also underscored the central role scientific evidence plays in scheduling and policy development.2
The existing Framework for Operational Policy Development and Renewal describes the WSIB’s general approach to operational policy development, but does not address the complexity of the occupational disease policy development process with its unique focus on scientific evidence and disease causation. The Occupational Disease Policy Framework breaks this complex process down into manageable steps that, once implemented, will serve as a guide for the WSIB to help support success and momentum in expanding the number of schedule entries and occupational disease policies. It will also enhance transparency and clarity about this process for workplace parties, other stakeholders, and members of the public, so that they better understand how the WSIB goes about its policy work in this challenging area.
3. The consultation process
The consultation for the draft Framework had two parts:
- Targeted sessions with representatives from employer and worker groups. The WSIB held virtual face-to-face sessions in January 2022 with stakeholders to discuss and receive feedback on the draft Framework. In total, 34 individuals representing various employer and worker groups attended these sessions.
- Written submissions in response to the draft Framework. Interested stakeholders and members of the general public were invited to submit written feedback on the draft Framework, which was posted on the WSIB website. In total, the WSIB received 16 submissions (i.e., nine from worker groups, four from employer groups, two from lawyer/paralegal groups, and one from a health professional).
4. Summary of findings
Overall, stakeholders are generally supportive of the Framework and a number of recurring themes emerge from stakeholders’ comments. In particular, the themes relate to:
- the Framework’s list of guiding principles for occupational disease policy development,
- the types of evidence used to support the recognition of an occupational disease in schedules and policy,
- the Framework’s levels of evidence thresholds for recognizing an occupational disease in schedules and policy,
- the use of adjudicative advice documents, and
- the consultation process outlined in the Framework.
Additional comments in many of the submissions were beyond the scope of this consultation, but will be addressed briefly below.
5. Detailed findings and responses
5.1 General support for the Framework
Stakeholder feedback
A number of stakeholders welcome the development of the Framework and the transparency and clarity it provides about the WSIB’s approach to identifying and recognizing occupational diseases in schedules and policy.
WSIB response
The Framework is the first of its kind among Canadian workers’ compensation boards. The WSIB is pleased that the Framework has been generally positively received and that stakeholders view it as fulfilling its purpose of enhancing clarity and transparency about the occupational disease policy development process.
5.2 The list of guiding principles of occupational disease policy development
Stakeholder feedback
Several worker submissions and a lawyer/paralegal submission argue that strategic direction and fiscal responsibility and the long-term sustainability of the system should not be overarching principles guiding the occupational disease policy development process. In relation to fiscal responsibility, this view appears to stem from the concern that this principle may be applied to limit benefit entitlement.
WSIB response
The WSIB has revised the Framework (section 3) to better explain how the list of guiding principles relate to the occupational disease policy development process and hopefully eliminate any confusion and unnecessary concern about how they may be applied.
The guiding principles in the Framework reflect the WSIB’s commitment to policy guidance that is grounded in the objectives of the WSIA and reflects the best available scientific evidence as well as any relevant stakeholder or expert input. These commitments are met through the steps of the occupational disease policy development process in the Framework. Policy guidance flowing from the Framework will be fiscally responsible because the costs associated with claims allowed under schedule entries and occupational disease policies will be properly borne by the system.
In addition, where a schedule entry or policy relates to a long-latency occupational disease, it enables the WSIB to make sufficient provision for future claims related to that disease and to collect sufficient premiums to fund that liability.
Policy guidance flowing from the Framework will also be consistent with the WSIB’s strategic direction. By helping to ensure decisions are timely, transparent, and evidence-based, the Framework will help the WSIB better meet customers’ needs and expectations: a key objective in the WSIB’s Strategic Plan.
5.3 The types of evidence used to support the recognition of an occupational disease in schedules and policy
Stakeholder feedback
Several worker submissions suggest that types of evidence other than systematic reviews (e.g., evidence from workers about their employment and exposure histories or evidence about the incidence of a specific health outcome at a workplace) should be given a more central role in the scheduling of an occupational disease or development of an occupational disease policy. There was also a suggestion that the WSIB should put more emphasis on workplace-based research and multiple exposures.
WSIB response
The WSIB agrees that more flexibility is needed regarding the types of evidence to support the recognition of an occupational disease in schedules and policy. The Framework has been revised to provide this flexibility. A new systematic review may not always be necessary or appropriate when there is existing, relevant, high-quality scientific evidence that the WSIB can leverage more quickly.3
The observation of a potential association between an occupational risk factor and disease does not mean there is a cause-and-effect relationship. High-quality scientific evidence is important because it provides reliable evidence of disease causation.
Types of evidence that are not scientific evidence have an important role to play in the occupational disease policy development process, primarily at the issue identification and prioritization stages of the process. These types of evidence are also considered by decision-makers in the case-by-case adjudication of initial entitlement and determining whether the occupational risk factor(s) to which the worker was exposed made a significant contribution to their disease.
5.4 The levels of evidence thresholds for recognizing an occupational disease in schedules and policy
Stakeholder feedback
Common themes in stakeholders’ submissions on the levels of evidence thresholds in the Framework (subsection 3.4) are:
- the language of “strong and consistent scientific evidence” is vague and requires further definition,
- legal principles should be used as the thresholds for recognition of an occupational disease in schedules and policy, and/or
- subsection 161(3) of the WSIA with its reference to “generally accepted advances in health sciences” reflects the appropriate threshold for recognition of an occupational disease in schedules and policy.
WSIB response
a. “Strong and consistent scientific evidence”
The WSIB has revised the Framework to clarify that scientific evidence will generally be considered “strong and consistent” when two or more high-quality studies find a statistically significant positive association between an occupational risk factor and a given disease. In other words, “consistency” refers to multiple studies (i.e., two or more) of similar quality with generally similar results. “Strength” refers primarily to study results about the strength of the association between the occupational risk factor and disease, and more detail has been provided in the Framework about what constitutes a strong positive association.
b. Legal principles as thresholds for recognition of an occupational disease in schedules or policy
The WSIB did not arrive at the levels of evidence thresholds in the Framework independently. As noted in the Framework itself, these thresholds are drawn from the ODAP Report. The ODAP Report was the product of an extensive public consultation and arrived at the levels of evidence thresholds after a thorough analysis that included a review of both adjudicative principles and s. 161(3) of the WSIA.
To recap, the purpose of recognizing occupational diseases in schedules and policy is to enable the quick and efficient compensation of occupational diseases when there is reliable scientific evidence supporting the link between an occupational risk factor(s) and a disease. The WSIB’s decision to recognize a disease in a schedule or policy is different than the adjudication of, and decision on, initial entitlement in a claim.
Decision-makers apply the relevant legal principles as part of the adjudicative process, including the legal causation test (i.e., the significant contribution test), the civil standard of proof (i.e., balance of probabilities) and the statutory benefit of the doubt in s. 119(2) of the WSIA, when determining initial entitlement. If there is no applicable schedule entry or occupational disease policy, or when the facts of a claim do not meet the criteria of an applicable schedule entry or occupational disease policy, decision-makers in a claim still go on to determine initial entitlement on a case-by-cases basis. In doing so, they determine whether it is more likely than not that a worker’s employment significantly contributed to the development of their disease, and when the evidence for and against this issue is equal in weight, the issue is resolved in favour of the worker or survivor.
c. Subsection 161(3) reflects the appropriate threshold for the recognition of an occupational disease in schedules and policy
The purpose of the duty to monitor in s. 161(3) of the WSIA is to ensure the WSIB stays abreast of scientific developments in the understanding of occupational disease, not to serve as a threshold for recognition of an occupational disease in schedules or policy. The Framework is clear that the WSIB is committed to continually monitoring scientific developments so that evidence linking workplace processes or exposures and diseases is reflected in policy guidance, as appropriate. As outlined in the Framework, this monitoring will enable the WSIB to identify both emerging occupational disease issues as well as any significant new developments related to existing recognized occupational diseases for further investigation.
5.5. The use of adjudicative advice documents
Stakeholder feedback
A number of worker and employer submissions express concerns that adjudicative advice documents will be used in place of policy to communicate initial entitlement guidelines for decision-making.
WSIB response
The WSIB agrees that initial entitlement guidelines related to occupational risk factors and diseases should generally either be reflected in a schedule entry (i.e., the disease and process description columns) or in policy, instead of an adjudicative advice document. As a result, the Framework (Subsection 3.4) has been revised to remove the header and other reference to “adjudicative advice” and to clarify that, where the scientific evidence does not meet the thresholds for scheduling or policy development, the WSIB may develop support documents that summarize the scientific findings rather than develop adjudicative advice.
5.6. The consultation process
Stakeholder feedback
Several employer and a few worker submissions express concerns about the approach to consultation set out in the Framework (section 4). They propose that consultation should be inclusive of all interested stakeholders and a regular part of the process rather than targeted in nature. One submission points out that the Framework incorrectly classifies experts as stakeholders.
WSIB response
Given the complex nature of disease causation, engagement is properly targeted to experts, such as members of the Table who have specialized knowledge and are qualified to provide input and advice on questions of general causation. However, the WSIB acknowledges the value of engaging with interested stakeholders on occupational disease issues and is currently exploring meaningful ways that it can provide regular opportunities for engagement as part of the occupational disease policy development process, particularly at the issue identification and prioritization phases.
The WSIB has revised the Framework (section 4) to clarify the distinction between stakeholders and experts.
6. Issues beyond the scope of the Framework
There is considerable interest amongst stakeholders in occupational disease issues beyond the scope of the Framework. In general, two themes emerge from the submissions: stakeholders are seeking guidance specifically related to the adjudication of occupational disease claims (e.g., rebuttal guidelines for Schedule 3, case-by-case adjudication) and they identify specific diseases and/or occupational risk factors of interest (e.g., adding benzene and leukemia to Schedule 3, moving the Schedule 3 entry for silicosis to Schedule 4, Trichloroethylene (“TCE”) exposure).
The WSIB appreciates that there is a general interest in more external guidance on issues related to the adjudication of occupational disease claims. While addressing all of these issues in the Framework would be incompatible with the Framework’s purpose, the WSIB is actively considering how it can provide more external guidance and improve transparency about the adjudication process for occupational disease claims.
In terms of the interest in specific diseases/occupational risk factors, the WSIB’s own issue identification and prioritization exercise also identified TCE/kidney cancer, benzene and AML, and silica/lung cancer, as issues of interest. These issues have been endorsed by the Table for further investigation, and may be included in a future Policy Agenda.
7. Other revisions to the Framework
In addition to the revisions outlined above, the WSIB has made a number of other revisions to the Framework for clarity, many of which were based on the comments from stakeholders.
- The introduction of the Framework has been revised to clarify that the Framework is intended to help the WSIB fulfill its obligations to all workplace parties
- Subsection 1.1 (Background) has been revised to:
- clarify that the reference to “work-related” means that the worker’s occupational disease is due to the nature of the worker’s employment, and
- delete footnote 1 because it is a substantive comment that relates primarily to claims adjudication.
- Subsection 2.4 (Recognition of occupational disease) has been revised to delete the information related to claims adjudication.
- Subsection 3.1 (Issue identification) has been revised to try to classify and simplify where potential issues may arise from, namely, by indicating that they may arise from information sources related to the workplace safety and insurance system, the occupational health and safety system, and the wider scientific and workers’ compensation communities, and giving specific examples of where they may come from.
1 Smith, Brock, Final Report of the Chair of the Occupational Disease Advisory Panel (February, 2005) (Occupational Disease Panel Report: WSIB).
2 See KPMG. (2019) Workplace Safety and Insurance Board - Value for Money Audit Report: Occupational Disease and Survivor Benefit Program. See also Demers, P.A. (2020) Using Scientific Evidence and Principles to Help Determine the Work-Relatedness of Cancer. Final Report. Occupational Cancer Research Centre, Ontario Health.
3 “High quality” with respect to factors including study design, methodology, and reporting of results.