5 common workers' compensation follies

David Marchione
1. Late reporting — It is important to know your reporting obligations to the compensation board and all external agencies. Employers are generally required to report an incident to the compensation board within a specified number of days when they become aware of the injury. When an employer becomes aware could be when the injury is reported to the supervisor, or when the employee first advises you they have sought medical attention. Either way, employees should be advised of their duty to report injuries and illnesses, and employers should ensure claims are reported in a timely manner.  Failing to do so can mean delay in benefits to injured workers, and can result in administrative penalties to employers and/or prosecution under the workers’ compensation legislation.

2. Self-adjudication of claims — This is related to late reporting of injuries. Sometimes employers tend to decide on their own whether an injury is work related or not. Based on their assessment, they may choose to not report the injury and may treat it differently in terms of return to work efforts. Should the claim be reported to the compensation board at a later date, benefits may be paid to the worker retroactively, resulting in higher claim costs. Administrative penalties may also be levied against the employer for late reporting, and/or prosecution for late reporting may result. Employers should ensure injuries are reported as soon as possible.

3. Claim apathy — This is a failure by the employer to take an active part in the management of the claim. In such cases, employers allow the claim to proceed without exploring the possibilities for cost savings, such as cost transfers, cost relief due to pre-existing conditions, or appeals of adverse decisions.  Although the compensation boards are generally supposed to be proactive in reviewing claims for the possibility of cost relief, it is in the employer’s best interest to ensure specific requests are made for review of entitlement decisions. Failure to do so can result in increased claim costs and have a negative impact on an employer’s experience rating.

4. Claim avoidance — This is different from claim apathy as this is actively choosing to avoid a claim or management of a claim. Sometimes, claims can appear overly complex, or a worker can be difficult to manage. These factors can cause some claims managers to avoid dealing with the claim. Avoidance generally takes the form of failing to actively pursue return to work options. If the employer fails to offer suitable work to an employee, it may result in the employee continuing to receive wage loss benefits, thus increasing claim costs and negatively impacting experience rating for the employer. It also becomes more difficult to bring an employee back to work after having been away from the workplace for an extended period of time. Employers should regularly communicate with injured workers and attempt to bring them back to work as quickly and safely as possible. Any issues in dispute should be raised with the compensation board as soon as they arise.

5. Letting it get personal — Employers often get frustrated with claims for various reasons: because they have gone on longer than expected, because decisions have been adverse, or because they do not know how to move forward with them. This can lead to rash decisions, such as termination of employment or withdrawal of modified duties. Such situations can create employment or labour issues — in addition to workers’ compensation issues. Although it may be difficult to do so in some situations, it is important to try to remain objective and work with the compensation system as best as possible. That means ensuring suitable work is offered, issues are identified and communicated, and adverse decisions are appealed.

The common thread through each of these five follies is they can result in increased liability and increased costs to employers. The long-term effects can be substantial in terms of experience rating issues and employee relations. 
As an employer, it is important to remember that there is a system in place, and we have to work within that system as best as possible to achieve the best possible outcomes for workers and the business.

David Marchione is an occupational health and safety consultant and paralegal with Toronto-based law firm Gowlings. You can reach him at [email protected]