Injury Solutions

Here’s what to do if you receive a letter about an old WCB claim

By Clifford Gerow, Injury Solutions Canada Inc.

During this last year, Injury Solutions Canada Inc. has noted a trend in old claims being resurrected by different Workers’ Compensation Boards and being dropped on employers that, in most cases, do not even remember the claim or employee.

What do you do as an employer? How do you handle this sudden and unexpected letter from your respective WCB?

The one thing you can’t do is ignore it. Trust that when the WCB sends you a letter, they are looking for a response or they will continue with the claim and invoice you for all the costs. These costs can very quickly add up to a significant amount, impacting your premiums, safety record and your ability to be competitive in the bidding market.

Injury Solutions Canada strongly suggests you immediately look back in your records to find out everything you can about the alleged incident – was this person an employee of yours, first and foremost, and was an incident reported to your business on the date of the alleged claim? This is where you cross your fingers – do you have any records of the claimed injury?

In a perfect world, you can answer yes to all the above questions, and you can provide good, detailed information to the requesting WCB to answer their questions in sufficient detail that exonerates your business from any further financial risk, and you can move on because you, at the time, did everything as you should have.

Now, as it has been our experience, not all employers are able to answer those questions fully and completely.

In that case, what do you do? Roll over and take whatever is coming without putting up a defence?
Of course not!

We start from the very basics, beginning with your return-to-work (RTW) program. Provide the WCB with a copy of your documented RTW program that states your company is fully capable and willing to accommodate any and all documented restrictions for injured workers. Next, you will, if possible and available, provide any documentation of the injured workers onboarding from human resources/management that clearly states the worker was made aware of and understood the RTW program and their duties to mitigate their wage loss by cooperating with the RTW program and the duties of the employer to accommodate the injured worker and their restrictions at work.

Next, if this was not done at the time of injury, get as much information as possible about the incident from any employees who are still with the company. If there are none, we fall back on the documents that you have or the normal actions your company takes in all injuries to accommodate injured workers at work. This may take getting statements from other injured workers that have been accommodated in the past and from company executives stating that is normal practice for the company.

It is very important to make note in the response to the requesting WCB if accommodation was offered and the injured worker preferred not to accept or if he/she made mention of any previous injuries to the injured part of their body in the past for whatever reason. Previous injuries to the same general area of the body can be very important in an appeal process and can lessen your financial risk and at the same time does not lessen the benefits allowed to the injured worker.

Ensure when you respond to the requesting WCB that this allegation is addressed fully and with all the documentation you have and what you can gather. The more information your business can provide, the better-informed decision the trier of facts can make for everyone involved.
Please do not leave it to just chance. Chance is not your friend. 

Clifford Gerow is the executive director of Injury Solutions Canada Inc.

Preparations to make in a downturn economy

By Tracy Slywka, Injury Solutions Canada

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Canada’s economy has slowed down in the last few years, and companies, now more than ever, are worried about staying afloat in these changing times. Has your company considered how it will navigate the future? Is your company ready for when the economy turns around? Will it have a competitive edge from planning?

When the economy improves, you best be ready to hit the ground running. If you want to take advantage of this time and prepare, there are several things your company should do. The following questions will help you get ready.

Do you have a safety management system and/or are you COR certified? If not, your safety association should be able to assist you. If you do not work with a safety association, there are many private companies that can help. Why? A safety management program allows your company to be competitive in the bidding process. With it, you can set a safe example.

Do you have a fully functioning return-to-work program? The WCB Act of 2013 requires that all employers in Saskatchewan have a return-to-work program in place. The program must be documented and formal, not an informal binder or loose “practice” for employees returning to work.

As part of the program, all stakeholders, such as your staff and management, should be knowledgeable of the process and their respective responsibilities. It is also best practice for staff to refresh their knowledge on your company’s program regularly. Your company can accomplish this by going over expectations during orientation, posting it and talking about it in toolbox meetings.

Documentation throughout the process is also crucial. If you do not feel qualified to undertake this responsibility, Injury Solutions Canada can assist. Managing any injury claims, no matter what the source, is vital to your employees and company’s well-being. We do not recommend leaving it to the insurer.

Do you have measures in place to resolve absenteeism issues and off-site injuries should they happen? A good return-to-work program can eliminate the Monday/Friday frequent flyers. It also works well with other types of injuries that may not have occurred at work and can take employees away from the workplace.

However, these types of injuries may still impact your bottom line through sick time and short or long-term disability programs. If you are unsure of what modified work duty tasks these employees can complete, canvass your staff. They will likely have great ideas for accommodation.

Have you looked closely at all of your WCB cost statements? Look closely at the statements; if there are any costs you are unfamiliar with, inform yourself, and if there are any costs related to older claims, do your due diligence. Do you know who to ask for assistance? Unknown costs such as these can lead to you being eliminated from the potential to bid on large projects and increase your premium rates – be conscientious of them.

If you are a member of an association such as the Saskatchewan Heavy Construction Association (SHCA) or a safety association such as the Heavy Construction Safety Association of Saskatchewan (HCSAS), are you familiar with their offerings? If not, get to know the benefits and become involved.

For example, the primary focus of SHCA, as stated on its website, is “advocacy and lobbying government on behalf of the organization and [its] members.” Access to networking with peers is also a benefit. Have you been to a SHCA event? Take advantage of the exposure and chance to connect.

When you are hiring new staff, spend time upfront properly screening them using a documented system or policy that is equal and fair to all. This process eliminates potential problems before they become your employee. Ensure new staff go through a clear onboarding process which includes informing them of your return-to-work policy as well as expectations on sickness and injury. If you do not have this process in place, or it is not documented, Injury Solutions Canada can help you develop one catered to your company’s needs.

The steps given above can put your company on a healthy and safe path that will pay dividends when you are in a bidding competition. Other benefits include: your WCB premiums decreasing, your ability to bid more competitively increasing and having a safe and productive workplace. 

Working from home: A silver lining to the COVID-19 pandemic?

Thanks to COVID-19, the landscape of work has forever changed. Unfortunately, employers had to make a quick decision regarding how to keep their employees working throughout the pandemic. What was once thought impossible for many employers became a reality and it changed how we view the traditional sense of the working environment. We used to think that to go to work, one had to go to a physical location with bricks and mortar. For most of us, the pandemic meant we were working from home. One thing the pandemic has taught us is that the definition of “work” must change. The landscape of work was already slowly starting to change. For some employers, this meant an immediate transition to working from home. Once what was thought unimaginable was now suddenly the norm for most employers and employees. For employers with an injured worker, the pandemic gave support to what employers have long been lobbying for, which was that an injured worker could work from home.

In the past, the Saskatchewan Workers’ Compensation Board (WCB) was less than enthused about employers offering their injured employee a “work from home” option. The WCB thought that this was a cover up for employers to skirt their obligation of return to work. The way of thinking in the past was that a worker working from home could not possibly do meaningful work from home; well, the pandemic has shown us otherwise!

The WCB Act, 2013 states, “An employer must have a return to work program.” Returning an employee back to work can sometimes be challenging, especially for smaller employers. For many employers, having an injured employee work from home was a great option, especially if the injured worker’s restrictions excluded them from many jobs in the workplace. Quite often, working from home allows employees more flexibility to take frequent rest breaks but still allows them to be engaged in the workplace and make a valuable contribution to their employer. I think WCB needs to change their definition of what return to work should look like and recognize that working from home is a great option. The pandemic has taught us that working from home is a real option, as many of us had to work from home since March of last year. WBC itself had its employees working from home.

Having an injured worker working from home may not work for all employers, but it is another option for employers. The possibilities are endless when having someone working from home. There is a lot of choice out there for online safety modules and classes on various topics. The safety associations in Saskatchewan are also a good choice for options for training in person and online. Employees can upgrade their safety qualifications online, and there are many options for this, as well. MSDS sheets are available online for updates.

Zoom, Webex and Microsoft Teams make it possible to attend work meetings via video and connect with the workplace. Technology is a fabulous way to help workers stay connected to the workplace. It is so important to keep employees engaged as it helps with the transition back into the workplace. Studies have shown the longer an employee is away from the workplace, the less likely they are to return. It is so important to have flexible work options to help lessen the burden of work injuries while enabling employees to remain connected to the workplace. COVID-19 has taught us that working from home is possible and it may have forever changed the landscape of the work environment. 

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.

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.