1

Challenging Questionable Claims

April 16, 2013

Representing Employers on Workplace Safety and Insurance Law

2

Welcome�Who we are

�Representing employers on workplace safety and Insurance Law

�What is SafeProfit™

�Series of short courses on WSIB claims management and OHSA

3

Housekeeping�Emergency planning

�Washrooms

�Cellular phone

�Sign-in sheet

�Course Material

�Break

�Questions and Answers

4

Challenging Questionable Claims

� Course Objective

� How to Recognize Evaluate and Control questionable WSIB claims

� Course Topics

1. WSIB overview

2. Reporting Obligations

3. What is an Accident

4. Necessary Conditions for a Claim to be accepted

5. Red flags-five point check system

6. Preparing the Form 7 (checks and balances)

5

Understanding the Problem�Recognize the problem

�Reporting from the worker to supervisor

�Reporting from the supervisor to you

�Drive-by phone calls from WSIB

�Evaluate the impact� Impact on Experience Rating Plan

�CAD-7 and NEER

�Controls�Control the flow of information

� Manage the outcome by Controlling the Process

6

Manage the Outcome by Controlling the Process

�By;

� Understanding WSIB policy

� Investigating the Accident (5 point check system)

� Developing SOP

� Training key staff

7

Introduction to WSIB�Difference between WSIB & MOL

�An adversarial system

�Workplace Safety and Insurance Act (WSIA)

�Creates WSIB (the Board)

�Workplace Safety and Insurance Appeals Tribunal (WSIAT)

�No Fault Insurance System

8

WSIB Jurisdiction�Power to determine its own policies,

practices and procedures.

�Not bound by legal precedent, legal rules of evidence

�Decisions based on the merits and justice of a case

�Benefit of doubt-presumption

9

WSIB Regulatory ServicesCompliance-WSIA

Non-compliance

� Penalties (WSIA)

� Individuals

�$25,000 or

�Imprisonment up to 6 months or

�Both

� Corporations

�$100,000

� Fraud (ccc)

� Indictable offence exceeding $5,000

� Up to 10 years imprisonment

� Summary conviction not exceeding $5,000

� Up to 2 years imprisonment

10

Service Delivery Model�Primary Adjudication (e-adjudication)

� Employer Accident Reports

�Worker report

�Medical

�If no issue decision is made quickly

11

Eligibility Adjudicator�Forwarded from Primary Adjudication

� Additional investigation is required

�Questionable claims

�Gathers information as needed

� Drive-by telephone calls

� Reasonable medical causation

�Need to make decisions within a short time frame

12

Summary on why it is important to question claims at time of Reporting

�WSIB is re-structuring

�WSIB making decisions more quickly

�Medical consultants need not be consulted

�Form 7 and investigation evidence is essential and time sensitive

13

Summary on why it is important to question claims at time of Reporting

�Extremely important to have a system in place PRIOR to the reporting of an accident

14

Employer’s Reporting Obligations

�Report the accident to the WSIB within 3 days if the worker:

� Loses time from work or

� Earns less than a regular day's pay or

�Requires health care treatment

�Requires modified work for 7 days or more

�No reporting required if:

�Only first aid is required

15

Worker’s Reporting Obligations

�Report an accident as soon as possible

�Six months to file a claim

�Complete the Worker’s Report of Injury (Form 6)

�Provide a copy of the Form 6 to the employer

16

Accident Injury-examples�Wilful and intentional act, not being the act of the worker

� E.g. being assaulted by a co-worker

�Chance event

�Slipped on the ladder

�Struck by an object

� Falls or suffers a cut

17

Disablement claims�Any condition that gradually emergesover time

�An unexpected result of work duties

18

Disablement Claim

�Case Study# 1

19

Necessary Conditions for a claim to be accept by WSIB

� Before WSIB will grant benefits to a worker, the following conditions are examined

� Five (5) point check system

1. Employer status

2. Worker status

3. Work-related injury

4. Proof of accident

5. Medical compatibility

20

1. Employer Status�Most businesses must register within 10 days of hiring their first worker

�Some exemption’s include:

� E.g. Banks, unions, law offices, doctor’s practices, health clubs…

21

2. Worker Status�Worker status

�Direct employee

� Independent Operator (IO)

� No required coverage

�WSIB clearance certificate

� Does WSIB clearance certificate mean no liability under OHSA?

22

3. Work-related injury (Course of employment)

� PLACE – whether the accident occurred:� On the employer’s premise e.g. parking lot� Off premise e.g. attending a course; travelling

� TIME – whether the accident occurred:� Before or after normal working hours� During lunch or break periods

� ACTIVITY – whether the activity � Involved assigned duties� Social or personal� Was controlled or supervised by the employer� Fighting � Horseplay

23

4. Proof of Accident� Four “Immediates”

1. Immediate Reporting

2. Immediate medical attention

3. Immediate absence from work

4. Witnessed

24

5. Compatibility - Medical�WSIB decisions based on Medical evidence

� The issue is its interpretation by decision-makers

�Employer is not privileged to medical information

�WSIB Form 8 includes medical and RTW information

25

Compatibility - Medical� Before submitting the Form 7

�Carefully examine the accident history

�Review documentation received:

�FAF;

�Employer not entitled to diagnosis

�Ask – are the complaints and the area of injury reasonable?

26

Off Premise Activities

�Case Study# 4 and #5

27

Off Premise Activities�WSIB will consider entitlement when:

�Going to and from work (under the control and supervision of the employer)

� Participating in work-related sports activities

�Condoned by the employer

�The employer exercised a form of supervision and control

28

Fighting; Horseplay and Larking

�General denied by WSIB

�Was the incident over a personal matter?

� If incident was related to work, the claim may be accepted if;

�The injured worker was not the aggressor or

�Was an innocent bystander

29

Checklist�Initial Entitlement (review)

30

Tips on completing the WSIB Form 7 (10 tips)

� Consider it as a blank Cheque (Designate one person only)

1. Have updated worker address and phone #

2. Pay attention Date of Hire (re-employment obligations)

3. Date of injury and reporting

4. Area of injury

5. Key phase “worker states” or “worker is claiming”

6. Third party identified

7. Prior history

8. Understand the difference between “Lost Time” v. “No Lost Time” Claims

9. Pay attention to type of employment

10.Provide additional comments

� Before submitting Review, Review and Review

31

Reporting a Recurrence (REO)�Do not use the Form 7

�Use REO7

� Include details about original incident

�Outline recurrent symptoms and medical treatment dates from original accident

� Include any ongoing complaints

32

Traumatic Mental Stress� s. 13(5) WSIA

� …traumatic mental stress benefits are only to be awarded in the case of “an acute reaction to a sudden and

unexpected traumatic event arising out of and in the course of his or her employment.”

� However, not entitled to benefits for mental stress caused by

�actions relating to the worker’s employment, including a decision to change the work to be performed or

�the working conditions,

�to discipline the worker or

�to terminate the employment

33

Putting it all together

�Case Study

34

Documentation is Critical!!� Form 7 (most important document employer will ever complete!)� Worker’s Statement of Fact

� Witness Statement of Fact

� Review – claims management checklist

� Write your objection with clear facts �Review all the information before submitting

�Retain confirmation slip

� Request written decision letter

� Time is critical� Have a plan in place (time sensitive)

35

Key Consideration“Drive-by” Phone Calls�Recognize that these calls will happen

�Evaluate the significance of these calls

�Control the outcome by controlling the

process

�Develop SOP

� Train key staff on the SOP

36

Objecting to a WSIB Decision�Section 120 of the Workplace Safety &

Insurance Act indicates:

� You have up to 30 days to object to a WSIB decision about

� Return to Work (RTW) or

� Work Transition (WT) issues,

� including re-employment decisions.

� You have up to 6 months to object to any other WSIB decision

37

New Appeal System� Strict timelines

�Written submissions will be norm� One shot – reason why documentation is key

� Appeal Process� “Intent to Object Form”

�Preserves limitation period

�Receive file disclosure

� “Participant Form”� Time sensitive and critical

�30 days to file (Keep confirmation slip)

� Appeal Readiness Form�Hearing in Writing

�Oral Hearing

38

Investigating the Incident� Treat each claim as if it will become a

problem

� One word can make the difference

39

Investigation Tips� Interview everyone who could have seen the incident� Injured worker� Witness

�Direct witness�Indirect witness

�Obtain written statements� Each statement must be dated and signed� Read and clearly understands the statement� Report in persons own words

� Take pictures

40

Key ConsiderationInvestigating WSIB claims

�Often is can be very difficult to identify the cause of claims

� Key points to consider� Strenuous work (more than normal)� Did an awkward position exist� Unaccustomed strain (higher production, equipment

issues)

� Exact size and weight of objects, � production quotes, � shift length, � recent changes in job, tools or equipment� Whether other workers are affected in the same way

41

Surveillance� Knee jerk reaction on doubtful claims

� Avoid general shot gun surveillance

� Suspicion alone not sufficient to engage

� Focus on the issue and reasons for

� Before engaging…

� Consider Privacy issues

�Office of Privacy Commissioner (OPC)

�Personal Information Protection and Electronic Documents Act (PIPEDA)

42

Hiring a Private Investigator�Responsibility of organization and PI that

�Collection

�Use

�Disclosure of personal information

�Performed in accordance with privacy legislation

�Strongly encourage parties to enter into a written agreement

�Outlining

�Mythological, issues in dispute, duration, conforming to privacy law…

43

Questions and Answers

�Contact Greg Sathmary 613-260-0600