Advocates want WSIB to reverse nearly decade-old policy on pre-existing conditions

An Ottawa woman injured in a fall at work says she feels abandoned after the agency that handles workplace insurance claims in Ontario said pre-existing conditions were to blame for her ongoing pain.

"I miss my work. I miss my stable income," said Sabreen Abu-Zeyada, 41, who has been unable to return to her job as a cashier and closing supervisor at a Food Basics grocery store in Ottawa's east end since June, when she slipped on the floor and her knee crumpled under her.

The Workplace Safety and Insurance Board (WSIB) covered three payments, but denied any further compensation, citing a pre-existing knee and lower back condition. 

In a letter dated Dec. 22, 2022, the WSIB cited an MRI on Abu-Zeyada nearly a month after her fall showed "patella femoral chondropathy" — the breakdown of cartilage on the underside of the kneecap — "which worsens over time," and that her medical file shows she had a pre-existing back condition.

"I am unable to establish there has been a worsening of the pre-existing conditions," the board wrote.

Abu-Zeyada hasn't been able to return to work, which led her to turn to employment insurance and then, subsequently, Ontario Works while she tries to recover.

"I want to be back to normal. I want to be … painless, not using medication, not using canes. I want to be able to walk by myself."

Abu-Zeyada's struggles are a familiar story to advocates for injured workers, who say the Workplace Safety and Insurance Board needs to reverse an eight-year-old policy shift they say has allowed it to wield pre-existing conditions as a tool to deny or reduce claims.

The board changed its policy for dealing with pre-existing conditions in 2014, to give case managers more "guidance and rigour" in evaluating workplace injuries, although the justification was likely in use years before.

Simultaneously the board made it a priority to reduce its unfunded liability — the difference between the money the board had versus the future payments it expected to make. That led worker advocates to allege the change was made for financial reasons, though the WSIB has denied that connection.

Since then, the agency's financial circumstances have reversed, said Maryth Yachnin, a lawyer at IAVGO community legal clinic in Toronto. In 2011, it had an unfunded liability of $14.2 billion. Last year, the WSIB announced it had given back $1.5 billion in surplus funds to eligible businesses.

Yachnin said the board owes workers the costs they have had to bear, and it has an obligation to do so.

In Ontario, more than 300,000 workplaces in the province subscribe to the WSIB, and when they do, injured workers must go through the agency, said Yachnin.

"It's fair to have to give up the right to sue in exchange for compensation that is fair, but where compensation is denied based on made-up reasons, it is not a fair system and it is not a fair compromise," she said.