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Paradigm Shift: WSIB Releases Interim Work Reintegration Policies

OntarioRoofingNews

 

 

 


 

Paradigm Shift: WSIB Releases Interim Work Reintegration Policies
BY: MARK SENICAR

The WSIB has released its interim Work Reintegration (WR) policies, which support the new Work Reintegration Program integrating Early and Safe Return to Work (ESRTW), Re-employment, and Labour Market Re-entry. This program called Work Reintegration, currently has interim policies in effect, pending a stakeholder consultation process

The previous LMR program was criticized as being a costly program that was ineffective at retraining injured workers. The ultimate goal of the program was to allow them to acquire suitable work based on their new skills. The program’s training was not considered to be credible by employers, a complaint the WSIB has publicly stated that it received. It was also submitted by the relevant stakeholders that the LMR program did not offer high quality education and training courses.

Moving forward there will be more worker intervention, input and general direction by the worker in the “new” work re-integration program. The core objective behind the changes is to create greater obligations for employers to eliminate workplace accidents and to ensure employers participation in the Return to Work protocol when workplace injuries occur.

So what are the interim policies of the new Worker Reintegration (WR) program? You can visit the WSIB’s website and read the policies directly from there: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/PolicyWR. However, the following are short summaries of some the big changes that will be relevant to you.

If employers do not co-operate with the return-to-work process, the WSIB can impose significant penalties on top of your CAD-7 costs. These penalties will incur if the employer refuses to meet or communicate with the WSIB or the worker, fails to provide adequate and/or accurate information about possible suitable work, or behaves abusively towards the worker or the WSIB’s representatives.

Of note is the fact that the Human Rights Code has been referenced for its accommodation obligation in the WR policies. The accommodation obligation under the Code has been held by the Human Rights Tribunal to be broader than the WSIB’s re-employment obligation. According to Policy 19-02-02, the WSIB “expects” all parties to comply with the Code’s accommodation obligations. It is possible the WSIB will not try to enforce the Code through the return-to-work process, as it has stated that it “respects” the primacy of the Human Rights Tribunal, but with all new policies, it is a wait and see approach.

Other significant changes that employers should be aware of is that the new WSIB policies include attempts to facilitate return-to-work meetings at an earlier stage—within 12 weeks of the accident date. This implies that injured workers will not be allowed off work for more months at a time without, at minimum, consideration of their return-to-work options. The appeals process for return-to-work issues will become quicker, and hopefully this will translate to faster “appeal decisions being made with respect to these issues.

Accordingly, these policies will have a dramatic impact on employers especially in the return to work protocol since there will be increased obligations to provide suitable work but also maintain the employment relationship with injured workers. Additionally under the   WR, the original employers will be expected to play a bigger role during and AFTER the worker’s retraining, which may raise new workplace accommodation issues.

In our next article, we will provide more insight on the above referenced policies for roofing contractors across Ontario since it is still quite early in the process at this point to determine the actual impact the new program will have on employers. Nevertheless as we’ve referenced in our articles in the past  the paradigm has shifted significantly to construction employers across Ontario and as a result of this shift, employers should exercise due diligence and understand their obligations.

Mark Senicar is the Managing Director of SE-GA Workplace Consulting P.C. and provides Workers’ Compensation expertise to construction and non-construction employers in Ontario.

What does a CAD-7 frequency really cost?

OntarioRoofingNews

 

 

 


What does a CAD-7 frequency really cost?
BY: MARK SENICAR

In our last article we discussed the finite valuations of the CAD-7 program and its impact on construction employers across Ontario. Accordingly we have received feedback from many companies as to what are the real dollar values associated with the costs of a WSIB claim. As we indicated previously, the CAD-7 program went through significant changes in 2004, which resulted in greater financial implications for companies engaged in the construction industry.

Under the CAD-7 formula, the valuation of the frequency has a cost varying from $20,000 to $80,000 in real dollars, dependant on the size of the employer. While the WSIB has recognized that a frequency occurs when a claim incurs eight days of lost time, employers need to realize the importance of offering transitional work immediately following an accident.

This is due to the cost impact of the WSIB providing Loss of Earnings benefits to an injured worker. Any costs processed by the WSIB in the first five years of a claim will impact the employer by 110%. In simple terms for each dollar processed by the WSIB, this will impact your bottom line $1.10.

These significant costs were made to create greater financial incentives for employers to participate in accident prevention and return to work programs. Employers are required to provide re-employment to their injured workers.

Under these new regulations, when a construction worker is injured with an accident date of, or after, September 1, 2008, the employer is under an obligation to re-employ the worker once the worker is medically able to perform any one of the following:

1.   The essential duties of his/her regular construction job
2.   Other suitable construction work

The key word here is “suitable”. This means that the work offered to an injured worker has to be safe (for the worker and any co-workers) and must be productive for the employer (i.e., the work has to provide objective benefit to the employer’s business). In other words, the work must be both safe and meaningful.  Also, when offering re-employment to the injured worker, the employer must accommodate the worker to the extent that such an accommodation does not cause undue hardship on the employer.

The requirement to accommodate lasts until the earliest of:

1. Two years from the date of the injury;
2. One year after the worker is medically able to do the essential duties of his/her regular construction job;
3. The date the worker declines an offer of work; or
4. The date the worker reaches 65 years of age

Accordingly if the employer is found to have breached the re-employment regulation(s), the WSIB may penalize the employer for an amount up to the worker’s net average earnings for the year prior to the injury.

Also, if a worker is terminated within six months of being re-employed following an injury, the WSIB will presume that the employer has breached their re-employment obligation and the onus is then on the employer, and not the worker, to prove this is not the case.

So what does this all mean to the construction industry across Ontario? At this time it is safe to say there are three obligations resulting from a workplace accident. Naturally there are the financial implications. There is the legal responsibility regarding reemployment and the most vital: The ethical requirement of creating a safe workplace and providing safe, suitable modified work.

As we all know, employers are responsible for the development and implementation of a Safety Program with the support and active involement of their workers. As such, all stakeholders should jointly participate in a modified (transitional) work program in order to achieve respect, mutual understanding and commitment which will only increase the potential for resolution of the claim and return to pre-injury work duties.

Therefore, the first step is to create a safe and effective modified (transitional) work program that clearly establishes responsibilities and accountability to guide all parties and provide clear direction on the early and safe return to work (ESRTW) protocol.

A successful ESRTW protocol must have ongoing communication and consultation among all stakeholders. Please note that the primary focus should be on workers abilities and not the restrictions.  The focus should be on rehabilitation to promote a safe, effective and timely return to work.

As with any component of an effective safety program, all staff should have training and knowledge to perform the appropriate protocol in order to mitigate any potential losses. As indicated earlier in this article, communication is the key. Recall that the CAD-7 program is very financially punitive for an employer once the claim has eight days worth of benefits processed.

Therefore the return to work protocol is a shared responsibility among all stakeholders. The workplace parties together plan the return to work activities by implementing a best practice which includes that all workplace parties are responsible for maintaining communication and sharing information.  This includes sharing information with the treating health professional and forwarding all relevant documentation to the WSIB.

 

We wish to emphasize that employers should not assume that the worker knows suitable work is available and therefore we wish to emphasize that an actual offer of transitional work must be made in writing immediately following an injury using standard restrictions for the applicable area of injury.  The workplace parties should understand the workers capabilities and the specific job offered. It is also recommended that all construction employers have a Modified Work kit at all of their job sites. The kit should explain the responsibilities of the injured worker, the supervisor and the health care provider. Furthermore, there should be an outline of the company’s modified work program.

Hopefully this information provides insight for Ontario construction employers regarding their financial, legal and most importantly; ethical obligations once an accident occurs. Over the last few years the paradigm has shifted significantly to construction employers across Ontario and as a result of this shift, employers should exercise due diligence and understand their obligations.

 

About the Author:

After graduating from Humber College and Mohawk College in Safety Engineering and Workers Compensation Claims Management, Mark Senicar went on to a career as a safety/workers compensation consultant with Canada`s largest workers’ compensation consulting organization in 1994. In his initial role, he advised clients on their rights and responsibilities under the relevant provincial OHSA and WCB acts, respectively. Additionally, he honed a special expertise in the recovery of over payments, penalties,
service changes and classifications that employers had made to the various Workers’ Compensation Boards across Canada. He has been the lead or co appellant for a number of leading cases which have been articled in the WSIAT reporter. As the Operations manager of FHS since 1999, Mark Senicar led his team to develop and implement practical and efficient claims management strategies for a variety of employers across Canada. This
would include implementation of ESRTW programs, OHS audits and programs, hearing representation on a variety of issues, actuarial analysis of experience rating costs and Workwell audits.

Mark is now the Managing Partner of SE-GA Workplace Consulting P.C. and provides workers’ compensation expertise in both ongoing and retro-active issues across Canada for both the construction and non-construction industry. For additional information and support, Mark can be reached at 1-866-973-7342,mark@segaconsulting.com or please visit us at www.segaconsulting.com

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Focus on Safety, Security & Fire Protection - Exploring the CAD-7 experience rating plan

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Focus on Safety, Security & Fire Protection
Exploring the CAD-7 experience rating plan
BY: MARK SENICAR
(DCN SPECIAL)

You can split the atom, but not the frequency count.

Employers in Ontario’s construction industry, are subject to the WSIB CAD-7 Experience Rating Plan, which unlike the NEER plan applicable to other employers, uses both accident cost and frequency for the determination of refunds or surcharges.

Under the CAD-7 plan, each lost-time injury is counted once per year but each year is reviewed over two CAD-7 statements. (Depending on an employer’s premiums, the cost of a lost-time accident can range from, approximately $1,000 to $15,000.)

Accordingly, employers will go to great lengths to avoid that one dollar of nonhealth- care costs, which produces an accident frequency count of “one” under the plan.

The skewing effect of the frequency component in the CAD-7 formula attracted comment in tribunal decision 894/89 as follows: “The employer in this case illustrates that phenomenon in that his accident frequency rate is approximately three times better than the norm, nonetheless, by virtue of the formula, the negative divergence from the norm far outweighs the impact of positive divergence from the norm”.

After observing the relatively greater impact of the frequency count under the formula, as opposed to costs, the Tribunal Panel in decision 894/89 went on to state: “At a certain point under this formula the financial consequences of reporting a claim are sufficiently Draconian that it becomes more cost effective to offer workers alternative compensation benefits, i.e. paid leave, or to encourage workers to remain at work without necessarily performing any task”.

Quite apart from the engagement in such practices at all in order to avoid a frequency count altogether, the issue of how the frequency count is treated under the CAD-7 plan has arisen in Three somewhat different contexts before the Workplace Safety and Insurance Appeals Tribunal.

Two of the cases involved whether or not an employer should in fact receive a full 1.0 frequency count in respect to the claim. Firstly, where there was Second Injury and Enhancement Fund relief applied, and secondly, where there was a transfer of 50 per cent of the cost of the claim due to negligence on the part of another Schedule –1 employer. The third case involves the situation where, although there was no lost time, the worker eventually received a small NEL award.

In decisions 1132/981 (September 21, 1998) an employer endeavoured to have the 50 per cent SIEF relief granted in the worker’s claim also factored in to the lost-time injury count (the frequency component) in its CAD-7 assessments. The employer had submitted to the board that: “We contend that the CAD-7 lost-time frequency be adjusted to the level of responsibility reflected by the SIEF award when it can be shown that the preexisting condition influences or contributes to cause. For example, where cost relief is granted as 50 per cent and a casual link can be determined, we submit that the employer under CAD-7 be charged with 0.5 frequency.”

The board denied such a request stating that: “The lost-time injury count is only used in the CAD-7 formula. It would be a double benefit to construction employers if the lost-time injury frequency and the claim cost were adjusted to reflect the level of SIEF relief.”

The employer had also contended that inasmuch as Board Policy 08-05-08 allows for a frequency adjustment under the CAD-7 plan when, in the case of an automobile accident, negligence could be proven and there was a transfer of cost, that the board did in fact possess the authority to reduce the CAD-7 employers frequency rate when claims were (also) awarded cost relief.

The board, defending its practice of not factoring SIEF relief into the frequency components stated: “If the WCB were to apply the SIEF cost relief into the frequency element, the components for the forcasted average rate frequency would also have to be actuarially amended to account for thousands of SIEF claims processed in any given year.

The matter thereafter came before the Appeals Tribunal, which concluded that it did have jurisdiction to hear the appeal as it involved, “The calculation of premiums payable by this employer.” However, before going on to rule in the case, the Tribunal noted a prior decision which stated: “In merit rating system appeals, Tribunal Panels will likely weigh the importance of systemic fairness (ensuring that a particular employer is treated the same way under the plan as all other employers with the same experience) against the argument any individual employer might make for the modification of the parts of the plan in his/her case.” Also noted was the fact that the Tribunal would ordinarily accord the board considerable deference with respect to assessment policies and merit rating systems.

Prior to deciding the issue of whether or not SIEF relief could and should affect the frequency component, under CAD-7, the tribunal vice-chair requested that the board firstly provide policy document which contained an express reference that SIEF relief would only be applied to the cost element of the CAD-7 formula, as to what circumstances might be considered “sufficiently exceptional circumstances to warrant an exception to this policy,” and finally how the frequency component was treated in a non-SIEF Transfer of Cost situation.

The board subsequently provided such clarification. Injury count exclusion under CAD-7 could occur in the following situation: long latency industrial disease claims, third party claims; third party motor-vehicle accidents; and adjustments for workers who received benefits for attending medical appointments.

As to the SIEF and Transfer of Cost scenarios, the board advised that: “In calculating refunds and surcharges for CAD-7, the frequency component will only be adjusted if either SIEF relief is 100 per cent or if the Transfer of Cost as of result third party negligence is 100 per cent. If either SIEF relief or Transfer of Cost as a result of third party negligence is 100 per cent. If either SIEF relief or Transfer of Cost is less than 100 per cent, only the cost component of CAD-7 is adjusted.”

While agreeing with the employer’s representative that there did not appear to be any “policy” which specifically empowered the board to factor SIEF relief into only the cost component of an employer’s CAD- 7 formula and not into the frequency component, there was however a well established board practice over 16 years of so doing, and further, the board had set out its administrative and policy reasons for having taken this approach since the implementation of the CAD-7 plan in 1984.

Finally, in denying the employer’s appeal, the tribunal vice-chair reached the conclusion that there was nothing exceptional in the employer’s case to justify granting the remedy if requested and that what the employer was really requesting was not an exemption from the board’s practice based on the merits and justice of the case, but an amendment of that practice.

To grant the employer relief as requested would in fact be looking behind the particular claim file and inquiring into the creation of, or the administration of, the appropriateness of the CAD-7 system.

The next challenge to the 1.0 injury count practice arose in tribunal decision no. 1975/01. In that case, the injury to the employer’s worker was regarded by the board as being contributed to by another schedule-1 employer, with the consequence that 50 per cent of the cost of the worker’s claim would be transferred to the other employer.

While the transfer of the 50 per cent of the costs of the worker’s claim was duly reflected in the employer’s cost statements there was, however, no adjustment to the firm’s accident frequency rate.

The employer requested that the board remove 0.5 of an accident from the employer’s accident frequency to reflect the section 10 of subsection (9) cost transfer. The Board denied the request stating that according to the rules governing the operation of CAD-7 Experience Rating Plan, “an accident resulting in claim costs of more than $1 in a year will produce an accident frequency count of one.”

In addition, if each of the two CAD-7 employers involved were assigned a 0.5 frequency to reflect the division of claim costs in half, the end figure would still be a 1.0 frequency count in respect to the claim.

ARTICLE LINK: http://www.dailycommercialnews.com/article/id29728

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