Many employers become frustrated with workers’ compensation claims. Some get frustrated if claims are prolonged. Others get frustrated at their outset. Frustration usually occurs because employers are unsure of how to manage the claim. Often, employers will hire an external consultant to manage such claims for them. If they do manage the claims in-house, employers would often let those claims slide as they are unsure how to deal with them. What results is increased claim costs and a greater impact on the employers’ experience rating.
It is important for employers to understand their obligations and to follow simple steps in order to try to manage claims. In previous articles, I have stated that an employer cannot force a worker back to work, nor should they. What they can do is try to manage the claim, minimize costs and return a worker to the workplace as quickly and safely as possible.
Try these simple steps for managing claims:
Be involved in the claim immediately. Investigate the circumstances of the reported injury as thoroughly as possible. Most employers do not question ‘chance event’ type claims where an incident occurs that is immediately identifiable, and where witnesses were present. However, ‘gradual onset’ type injuries are often a cause of concern for employers because there is often no immediately apparent connection between the injury and the work being performed.
The compensation board needs as much information as you can provide them to make the best possible decision in the claim. Remember that if the evidence for or against a claim is relatively equal, the decision will likely be in favour of the worker as the compensation system was designed for their protection.
Ongoing communication is key. Communicate with the injured worker on a regular basis. This suggestion will require some consideration on the part of the employer and will depend on the nature of the injury.
If the worker is in hospital with serious injuries, use discretion with how often to contact them. If they are at home or working at accommodated work within the workplace, it is important to have regular follow up communication with the worker to determine their symptoms, progress, functional abilities, what treatment they are receiving and when.
Remember that employers are not generally entitled to know the workers’ diagnosis, but you are entitled to know their functional abilities in order to try to accommodate them.
Obtain functional abilities information. Have a meeting with the worker and determine what they can do. Ask them to have their treating physician or health care practitioner (i.e. chiropractor or physiotherapist) to complete a functional abilities form advising you of their abilities and physical limitations.
The duration of those limitations is also important to note, as it will allow you to schedule follow up meetings and/or obtain updated information. These forms can also be sent directly to the doctor for completion, along with an offer of accommodated work.
Offer suitable duties as soon as possible. Employers often become frustrated with this requirement as they may not have functional abilities information, or the worker may not be cooperating in the process. Furthermore, employers often attempt to offer duties that are entirely different from the pre-injury position.
As a first step, engage the worker’s assistance in identifying suitable duties, starting with the pre-injury position with accommodation, if required. If you do not have formal functional abilities information, try to accommodate using standard restrictions for the injured body part. These are generally fairly common sense (i.e. avoid lifting and bending if it is a back injury).
Ensure that the offer is made in writing to the worker including a start date, wages to be paid, and instructions that they should report any increase in symptoms or the inability to perform certain tasks. Provide a copy of the offer to the compensation board. If the compensation board deems the duties as suitable, the worker will not receive benefits if they refuse to try them.
Report cooperation issues promptly. If a worker is not cooperating in return-to-work efforts, either by refusing to provide functional abilities information or by refusing to cooperate in suitable duties that have been offered, be sure to report this to the compensation board as soon as possible. I recommend reporting by telephone and following up in writing.
Cooperation is required from both the employer and worker and failing to cooperate can result in penalties for either party.
The above suggestions are not new, but employers often become very frustrated with specific claims and may not know how to proceed. You may not be successful in every situation, but the key is being able to manage the claim as best as possible by fulfilling all your obligations as an employer under the compensation system.
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David Marchione is an OHS consultant and paralegal with Toronto-based law firm, Gowlings. You can contact him at [email protected].
