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In my experience, many employers struggle to navigate the complex policies and procedures of Ontario’s Workplace Safety and Insurance Board (“WSIB”), and sometimes miss opportunities to achieve cost-savings and improve efficiencies in claims management. With a view to assisting Ontario employers in reducing their workers’ compensation claims costs, I offer the following five strategies:
- Join a WSIB Safety Group. To assist employers in improving health and safety performance, the WSIB has designed a Safety Group Program, which facilitates the interaction of employers from a cross-section of businesses and rate groups for the purpose of sharing best practices and learning from each other’s experiences in implementing injury and illness prevention programs. Each Safety Group is overseen by a WSIB-approved sponsor that leads and coordinates the efforts of the group; and, each year, the group sets five goals for improving health and safety in their members’ workplaces. The WSIB measures the members’ collective success in meeting those goals over the course of the year, with each member of the group being eligible to receive a rebate (of up to 6% of their WSIB insurance premium) if their group achieves its goals. More information about WSIB Safety Groups is available here.
- Investigate Workplace Incidents and Injuries. In the event that a workplace incident or injury occurs, there are three important reasons why the employer should conduct an investigation into the nature of that incident or injury:
i) To ensure that the employer has obtained sufficient information to satisfy its reporting obligations under the Workplace Safety and Insurance Act, 1997 (i.e. completing and submitting a Form 7);
ii) To verify the veracity and legitimacy of the claim that the worker will make in relation to the incident or injury (i.e. to ensure that the injury meets the definition of an “accident”, pursuant to WSIB Policy Document No. 15-02-01: Definition of an Accident); and
iii) To determine how similar incidents or injuries can be avoided in the future; and to build that information into improved strategies for avoiding future workers’ compensation costs.
Particularly when the employer has concerns about the veracity or legitimacy of a claim, it should notify the WSIB immediately, with a view to (a) reducing the period for which the worker is paid LOE benefits, or (b) having the claim denied altogether.
- Apply for Cost Relief. The WSIB recognizes that the claim costs associated with a particular injury may be exacerbated if the injured worker has a prior disability or pre-existing condition that (a) caused or contributed to the workplace injury, and/or (b) prolonged or enhanced his or her recovery from the workplace injury. Likewise recognizing that an accident employer should not necessarily bear the burden of such additional claim costs, the WSIB has established a mechanism for employers to apply for “cost relief” from a special fund that the WSIB has established for such circumstances – i.e. the Second Injury and Enhancement Fund (“SIEF”). The amount of SIEF relief available to an employer for a particular injury will depend upon two factors – (i) the medical significance of the pre-existing condition, and (ii) the severity of the workplace accident. For example, in situations where the medical significance of the worker’s pre-existing condition is characterized as “major” and the severity of the workplace accident is characterized as “minor”, an employer may be eligible for up to 100% cost relief. More information about SIEF can be found here.
- Consider the Appropriateness of a Transfer of Costs Application. If the workplace injury was caused by the negligence of a worker employed by another employer (or by another employer directly), the WSIB provides a mechanism by which the injured worker’s employer can apply to have some or all of the accident costs transferred off of its own WSIB account and onto the negligent employer’s account – see WSIB Policy Document No: 14-05-01: Transfer of Costs. To succeed in such an application, the employer seeking the costs transfer must prove that the negligent employer (and/or its workers) (a) failed to do something that a reasonable and prudent person would do, or (b) did something that a reasonable and prudent person would not do.
- Actively Manage the Return to Work Process. A key contributing factor in workers’ compensation accident costs is the Loss of Earnings (“LOE”) benefits paid to an injured worker while s/he is unable to return to work. In addition, employers are assessed for future costs and overhead costs, which are based, in part, on the benefits that have already been paid on the claim. It is therefore very prudent for employers to work diligently in identifying opportunities for injured workers to return to the workplace as soon as possible – either to their pre-injury roles (with or without accommodation), or to suitable and available alternate roles. In order to stay up-to-date on when a worker might be able to return to work and what role(s) might be appropriate for him or her, the employer is permitted to ask the injured worker to provide Functional Abilities Forms (“FAF”s) on a regular basis. In the event that an injured worker does not provide an FAF within a reasonable period of time after having been requested to do so, or if the FAF provided is incomplete, the employer should contact the WSIB and raise those concerns with the Case Manager who is assigned to the worker’s claim.
Although these strategies may not all be applicable to every employer and every workers’ compensation claim, they each present significant opportunities to reduce workers’ compensation costs in appropriate circumstances.
Ryan D. Campbell
About the Author: Toronto Employment Lawyer Ryan D. Campbell assists both employers and employees in all facets of employment law, workers’ compensation law, and occupational health and safety law. Ryan also has experience assisting Ontario employers in complying with the Accessibility for Ontarians with Disabilities Act, and advising on the use of social media and technology in the workplace.