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Benefit from our Experience

Employer Perspective on WSIB’s New Service Delivery Model

Recent Noteworthy Decisions
New Roles Support Workers and Employers
New policy — Fatal Claim Premium Adjustment

Employer Perspective on WSIB’s New Service Delivery Model

By Laura Russell, CompClaim Legal Services Professional Corporation

Presented at the Ontario Bar Association’s Continuing Legal Education Conference

May 26, 2009

Is this ‘new’? I for one have seen the Board use this compartmentalized adjudication style at least a few times in the last 20 years. What are the problems that the Board is trying to address and will this influence that?

Is the Board ‘delivering service’? So far, it doesn’t seem so. In these difficult economic times where a good portion of our Ontario workplaces are in crisis, where jobs are disappearing everyday and where strict budgetary constraints (including roll backs) have been implemented, should employers (who fully pay for the system) and their workers (who may not get what they want from their employers or the system because of the system failings) support this?

Eligibility Role – the WSIB plans to use this position as an entry-level position for new adjudicators (case managers). A debate has raged for years, with stakeholders consistently arguing that the initial decision is the most critical and the most experienced / technically competent should be utilized here. What is consistently troubling is that the WSIB emphasizes efficiency and is only secondarily concerned about quality (in my opinion). Already employers are frustrated with the lack of apparent understanding or interest by C/M in the law or even WSIB policy. A lot of the decision-making is rhetorical and letter writing, if it happens at all, is awful (poorly written, in terms of technical quality and grammar/punctuation).

The WSIB cites one of its main reasons to the new system (of split roles) is that they can improve their technical skills. Apparently WSIB Adjudicators and Managers were having a hard time managing a claim from start to finish. Why is it they can’t do this well, and if they can’t then why do they have authority to issue decisions, non co-operation fines, and/or H&S or Disability Management advice. Employers and employer representatives not only have to learn and become competent in all aspects of claim entitlement and claims management, and law, policy, medical -- but they also must master the financial aspects of the system.

What happened to the Revenue/Account Customer Service Reps/Account Reps in this reorganization? I haven’t seen or heard of one or heard of anyone else seeing one for at least 6 months!! Again, where’s the service?

Which brings me to my final comment – I don’t think anyone is adverse to efforts at improvement, but this massive reorganization of the Board’s core businesses during tough times – seems, well, … ill-conceived, ill-timed and actually, somewhat indulgent.

We’ve changed our name!

Effective June 1, 2008 CompClaim Management Inc. is now known as:　

CompClaim (CCM) Legal Services Professional Corporation

This change is limited only to the firm’s legal name, and is one of the changes required in relation to the recent mandatory licensing of paralegals in Ontario. Now that we are licensed under the Law Society Act, this legal name was required to comply with all related legislation.

The other notable requirement was completion of the Paralegal Licensing Application process. As previously advised, all appropriate consulting staff have successfully completed this process and are fully eligible to represent the interests of our clients before the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal.

We want to assure our clients that this is a change in our name only, and will not impact the services that we provide, or the manner in which we provide them. We remain interested and able to offer our expertise in the areas of claims management, appeals, and health and safety matters in Ontario and jurisdictions across Canada.

As there have been no related staffing or location changes, our consultants and all contact information remain the same.

If you have any questions or concerns, please do not hesitate to contact us.

Recent Noteworthy Decisions

Decision No. 2328/08 – This claim involved a worker who suffered a work-related injury when she was struck by a forklift in the course of her employment. The worker was hearing impaired, and did not hear the forklift backing up, or a co-worker’s verbal warnings. 100% cost relief was requested, but denied by the Vice Chair on the basis that the worker’s hearing impairment was not the proximate cause of the accident. The Vice Chair went on to consider whether the worker’s hearing impairment was a valid ground for cost relief under policy document #14-05-03 – Second Injury and Enhancement Fund. Although the Vice Chair found that it was unclear whether the worker’s impairment constituted a “pre-existing disability or condition” under the policy, the decision is important and novel in that she found that the worker’s impairment contributed to the occurrence of the accident. On this basis, she went beyond the strict wording of the policy, and allowed the employer 25% cost relief based on the merits and justice.

Decision No. 16/09 – This decision relates to the impact of delayed benefit payments on experience rating. The worker sustained a work-related injury in 2003. Full Loss of Earnings (LOE) benefits were paid in 2003, and partial LOE benefits were paid from October 3 to October 19, 2005. The worker sought full LOE benefits for this period, and pursuant to an Appeals Resolution Officer’s (ARO) decision dated May 2, 2006, additional LOE benefits for the lost time in 2005 were allowed. As the ARO’s decision was implemented in 2006, the claim was reactivated under NEER for its final review in 2006, resulting in additional costs to the employer of more than $75,000.00 (for a payment to the worker of only $1,000.00). The employer sought a manual adjustment of the claim type code on the basis that the claim was ‘inactive’ in 2006, as it did not “draw” LOE benefits, as required by policy. The Board rejected this policy interpretation, and the employer appealed to the Tribunal. The Vice Chair accepted the employer’s position, and agreed that a claim “draws” benefits at the time that the entitlement to benefits “crystallizes”, i.e. when the lost time occurs. This decision is important in that it re-affirms that claims should only be coded as ‘active’ under NEER when lost time occurs in that calendar year, and highlights that attention should be given to when benefits are paid out in a claim to minimize the impact on experience rating.

New Roles Support Workers and Employers

Workers and employers will benefit from the experience and expertise of frontline service delivery staff in new or redesigned roles with a more specialized focus:

· Eligibility Adjudicator determines eligibility upon receiving a claim for benefits;

· Case Manager concentrates on the opportunities and obstacles to return to work, determines ongoing benefits to be paid to the worker, and arranges and monitors Labour Market Re-entry services wherever and whenever needed;

· Nurse Consultant coordinates specific medical interventions and improved timelines aimed at resolving health care barriers and decides what health care services and benefits are allowable;

· Account Specialist and Account Analyst provide employers with access to dedicated revenue decision-making services within the Employer Service Centre;

· Return to Work Specialist facilitates return to work and case resolution at the workplace;

· Disability Prevention Specialist assists employers (in-house as needed) to build new or improved prevention, disability management and compliance programs and practices for their entire workplace.

New policy — Fatal Claim Premium Adjustment

Under the new Fatal Claim Premium Adjustment policy (14-02-17), the WSIB can apply a premium increase (equivalent to the NEER or CAD 7 refund that would have been received) to an employer that experiences a work-related traumatic fatality.

Exceptions to the policy will be deferred to the merits and justice of each case, and there will be a right of appeal to all decisions made under the policy.

When a work-related traumatic fatality occurs, an employer will not receive a rebate unless there are exceptional circumstances. (An example where an exceptional circumstance may exist is a third-party motor vehicle accident.)