by Clifford Gerow, Injury Solutions Canada Inc. Clifford Gerow, Injury Solutions Canada Inc.

When an employee injures themselves at work, recovers and re-injures themselves off the job

When an employee gets injured at work, and the Workers’ Compensation Board in that jurisdiction accepts that injury, it accepts that injury for life…or does it?

It does not seem to be a clear yes or no answer, from our experience. As I am sure you are all aware by now, no matter what types of short- or long-term insurance your company might carry to supplement the forced WCB coverage you must have by government legislation, again by legislation the WCB is first payer. What does that mean?

In short, it means that no matter what other fantastic or simple insurance programs you may have, the WCB is the primary “owner” of that injury for the life of it. This is to protect the employee to ensure he/she does not get lost and later dumped if they lose employment with the injury employer or if the plan were to lose sufficient funding.

The WCB’s responsibility is to take the injured worker from the state of injury to the absolute best state of recovery, with the goal being complete recovery to the state the injured worker was in prior to becoming injured and capable of returning to his/her pre-injury duties on a full-time basis. The WCB is then to provide the injury employer with a letter advising the injured worker is fit to return to his/her pre-injury duties and that their dealings with the claimant are done.

If the worker is cleared for full duties by his/her primary medical providers, and then reinjures that specific part of their body away from work, the lost time and medical should not be the responsibility of the WCB and not affect the experience rating of the previous injury employer.

The injury employer may have a short-term insurance program that can help protect the employee while he/she recovers from the non-work injury up to the point where they can return to work again in a full capacity. Depending on the insurance coverage, the worker is usually covered for a percentage of wage loss and medical coverage. This type of insurance does not affect the WCB experience rating and the company’s premiums with WCB and competitive ability to compete for contracts.

Remember, there is no employer advocate to assist them, so they can either do it themselves or hire someone to assist them, again, at their expense.

At times, the WCB seems to take this whole ownership for life of an injury a little too far. They get a report from a physician who indicated a reinjury of a specific part of a body because the first time it was a work injury. They then contact the “injured worker” who advises this is not a work injury, but that it was done while he/she was at home and off duty. They press further, asking the employer of record for an E1 and salary information. They are told the injured worker was not working at the time of the injury, that they have statements from the worker, foreman and timesheets to show he was off duty. Further, the injured worker is already referred to their disability program and is already receiving benefits such as wage loss and medical.

The WCB insists and pushes legislation stating they are first payers, that they are accepting the injury as theirs and they acknowledge the injured worker has stated to them this did not occur at work, but since this part of his/her body was injured previously, this is a reaggravation of a pre-existing condition, so they accept it again fully. The employer has the right to appeal if they do not like this decision, at the employer’s cost. Remember, there is no employer advocate to assist them, so they can either do it themselves or hire someone to assist them, again, at their expense.

The employer, the injured worker and the short-term disability management company hired by the employer are extremely frustrated as they all believe they are doing the right thing by their injured worker and yet the WCB will not listen and instead uses their legislative authority to run over them.

This is not an isolated case, of course, and is not a consistent use of policy, as employers have seen many times when the pre-existing injury issue used in exactly the opposite way.