Challenging Questionable Claims April 16, 2013 Representing Employers on Workplace Safety and Insurance Law 1
Welcome Who we are Representing employers on workplace safety and Insurance Law What is SafeProfit Series of short courses on WSIB claims management and OHSA 2
Housekeeping Emergency planning Washrooms Cellular phone Sign-in sheet Course Material Break Questions and Answers 3
Challenging Questionable Claims Course Objective How to Recognize Evaluate and Control questionable WSIB claims Course Topics 1. WSIB overview 2. Reporting Obligations 3. What is an Accident 4. Necessary Conditions for a Claim to be accepted 5. Red flags-five point check system 6. Preparing the Form 7 (checks and balances) 4
Understanding the Problem Recognize the problem Reporting from the worker to supervisor Reporting from the supervisor to you Drive-by phone calls from WSIB Evaluate the impact Impact on Experience Rating Plan CAD-7 and NEER Controls Control the flow of information Manage the outcome by Controlling the Process 5
Manage the Outcome by Controlling the Process By; Understanding WSIB policy Investigating the Accident (5 point check system) Developing SOP Training key staff 6
Introduction to WSIB Difference between WSIB & MOL An adversarial system Workplace Safety and Insurance Act (WSIA) Creates WSIB (the Board) Workplace Safety and Insurance Appeals Tribunal (WSIAT) No Fault Insurance System 7
WSIB Jurisdiction Power to determine its own policies, practices and procedures. Not bound by legal precedent, legal rules of evidence Decisions based on the merits and justice of a case Benefit of doubt-presumption 8
WSIB Regulatory Services Compliance-WSIA Non-compliance Penalties (WSIA) Individuals $25,000 or Imprisonment up to 6 months or Both Corporations $100,000 Fraud (ccc) Indictable offence exceeding $5,000 Up to 10 years imprisonment Summary conviction not exceeding $5,000 Up to 2 years imprisonment 9
Service Delivery Model Primary Adjudication (e-adjudication) Employer Accident Reports Worker report Medical If no issue decision is made quickly 10
Eligibility Adjudicator Forwarded from Primary Adjudication Additional investigation is required Questionable claims Gathers information as needed Drive-by telephone calls Reasonable medical causation Need to make decisions within a short time frame 11
Summary on why it is important to question claims at time of Reporting WSIB is re-structuring WSIB making decisions more quickly Medical consultants need not be consulted Form 7 and investigation evidence is essential and time sensitive 12
Summary on why it is important to question claims at time of Reporting Extremely important to have a system in place PRIOR to the reporting of an accident 13
Employer s Reporting Obligations Report the accident to the WSIB within 3 days if the worker: Loses time from work or Earns less than a regular day's pay or Requires health care treatment Requires modified work for 7 days or more No reporting required if: Only first aid is required 14
Worker s Reporting Obligations Report an accident as soon as possible Six months to file a claim Complete the Worker s Report of Injury (Form 6) Provide a copy of the Form 6 to the employer 15
Accident Injury-examples Wilful and intentional act, not being the act of the worker E.g. being assaulted by a co-worker Chance event Slipped on the ladder Struck by an object Falls or suffers a cut 16
Disablement claims Any condition that gradually emerges over time An unexpected result of work duties 17
Disablement Claim Case Study# 1 18
Necessary Conditions for a claim to be accept by WSIB Before WSIB will grant benefits to a worker, the following conditions are examined Five (5) point check system 1. Employer status 2. Worker status 3. Work-related injury 4. Proof of accident 5. Medical compatibility 19
1. Employer Status Most businesses must register within 10 days of hiring their first worker Some exemption s include: E.g. Banks, unions, law offices, doctor s practices, health clubs 20
2. Worker Status Worker status Direct employee Independent Operator (IO) No required coverage WSIB clearance certificate Does WSIB clearance certificate mean no liability under OHSA? 21
3. Work-related injury (Course of employment) PLACE whether the accident occurred: On the employer s premise e.g. parking lot Off premise e.g. attending a course; travelling TIME whether the accident occurred: Before or after normal working hours During lunch or break periods ACTIVITY whether the activity Involved assigned duties Social or personal Was controlled or supervised by the employer Fighting Horseplay 22
4. Proof of Accident Four Immediates 1. Immediate Reporting 2. Immediate medical attention 3. Immediate absence from work 4. Witnessed 23
5. Compatibility - Medical WSIB decisions based on Medical evidence The issue is its interpretation by decisionmakers Employer is not privileged to medical information WSIB Form 8 includes medical and RTW information 24
Compatibility - Medical Before submitting the Form 7 Carefully examine the accident history Review documentation received: FAF; Employer not entitled to diagnosis Ask are the complaints and the area of injury reasonable? 25
Off Premise Activities Case Study# 4 and #5 26
Off Premise Activities WSIB will consider entitlement when: Going to and from work (under the control and supervision of the employer) Participating in work-related sports activities Condoned by the employer The employer exercised a form of supervision and control 27
Fighting; Horseplay and Larking General denied by WSIB Was the incident over a personal matter? If incident was related to work, the claim may be accepted if; The injured worker was not the aggressor or Was an innocent bystander 28
Checklist Initial Entitlement (review) 29
Tips on completing the WSIB Form 7 (10 tips) Consider it as a blank Cheque (Designate one person only) 1. Have updated worker address and phone # 2. Pay attention Date of Hire (re-employment obligations) 3. Date of injury and reporting 4. Area of injury 5. Key phase worker states or worker is claiming 6. Third party identified 7. Prior history 8. Understand the difference between Lost Time v. No Lost Time Claims 9. Pay attention to type of employment 10.Provide additional comments Before submitting Review, Review and Review 30
Reporting a Recurrence (REO) Do not use the Form 7 Use REO7 Include details about original incident Outline recurrent symptoms and medical treatment dates from original accident Include any ongoing complaints 31
Traumatic Mental Stress s. 13(5) WSIA traumatic mental stress benefits are only to be awarded in the case of an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, not entitled to benefits for mental stress caused by actions relating to the worker s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment 32
Putting it all together Case Study 33
Documentation is Critical!! Form 7 (most important document employer will ever complete!) Worker s Statement of Fact Witness Statement of Fact Review claims management checklist Write your objection with clear facts Review all the information before submitting Retain confirmation slip Request written decision letter Time is critical Have a plan in place (time sensitive) 34
Key Consideration Drive-by Phone Calls Recognize that these calls will happen Evaluate the significance of these calls Control the outcome by controlling the process Develop SOP Train key staff on the SOP 35
Objecting to a WSIB Decision Section 120 of the Workplace Safety & Insurance Act indicates: You have up to 30 days to object to a WSIB decision about Return to Work (RTW) or Work Transition (WT) issues, including re-employment decisions. You have up to 6 months to object to any other WSIB decision 36
New Appeal System Strict timelines Written submissions will be norm One shot reason why documentation is key Appeal Process Intent to Object Form Preserves limitation period Receive file disclosure Participant Form Time sensitive and critical 30 days to file (Keep confirmation slip) Appeal Readiness Form Hearing in Writing Oral Hearing 37
Investigating the Incident Treat each claim as if it will become a problem One word can make the difference 38
Investigation Tips Interview everyone who could have seen the incident Injured worker Witness Direct witness Indirect witness Obtain written statements Each statement must be dated and signed Read and clearly understands the statement Report in persons own words Take pictures 39
Key Consideration Investigating WSIB claims Often is can be very difficult to identify the cause of claims Key points to consider Strenuous work (more than normal) Did an awkward position exist Unaccustomed strain (higher production, equipment issues) Exact size and weight of objects, production quotes, shift length, recent changes in job, tools or equipment Whether other workers are affected in the same way 40
Surveillance Knee jerk reaction on doubtful claims Avoid general shot gun surveillance Suspicion alone not sufficient to engage Focus on the issue and reasons for Before engaging Consider Privacy issues Office of Privacy Commissioner (OPC) Personal Information Protection and Electronic Documents Act (PIPEDA) 41
Hiring a Private Investigator Responsibility of organization and PI that Collection Use Disclosure of personal information Performed in accordance with privacy legislation Strongly encourage parties to enter into a written agreement Outlining Mythological, issues in dispute, duration, conforming to privacy law 42
Questions and Answers Contact Greg Sathmary 613-260-0600 43