WCB cost relief reduces employer premiums
It’s a fact that most employers don’t bother disputing WCB entitlement decisions.
Not exactly a surprise really. Anyone who’s been down that road knows that challenging a decision can be a time-consuming headache. That said, when you fold your hand too soon and walk away, you’re quite likely leaving money on the table.
In today’s entry, I outline a couple grounds which can give rise to reviews for cost relief or cost removal. But first, let’s kick things off with a review of the basics: (excerpts taken from WCB’s policy manual)
“To be considered compensable, an accident must meet two conditions: 1) it must arise out of, and 2) occur in the course of, employment duties. [However] workers are not entitled to compensation if they have removed themselves from the course of employment by their actions, and may not be entitled if the accident was a result of serious and willful misconduct.”
An accident may be compensable if it occurs in the course of employment during a time and place consistent with the obligations and expectations of employment:
“Time and place are not strictly limited to the normal hours of work or the employer’s premises, however, there must be a relationship between employment expectations and the time and place the accident occurs”
A particular bone of contention for employers is WCB’s ‘no-fault’ policy. In essence, ‘no-fault’ means that claims which meet the criteria (arising out of, in the course of, and time/place) are nearly always accepted. I say nearly because there are certain exceptions as follows:
Removing Oneself From the Course of Employment
A worker will lose entitlement to compensation if the worker’s actions at the time of the injury are a substantial deviation from the expectations and conditions of employment
Serious and Willful Misconduct
A worker is normally not entitled to compensation when the injury is primarily due to serious and willful misconduct. The only exception is when the injury results in serious disability or death. A worker will lose entitlement to compensation if the worker’s actions at the time of the injury are a substantial deviation from the expectations and conditions of employment
Now let’s consider a hypothetical: suppose your industrial coatings company employs a full-time HSE manager, follows a comprehensive HSE manual, and has a stellar safety record. Safety culture is literally drilled into everyone’s head via regular training and your COR audits consistently pass with flying colours. Each toolbox meeting begins with a review of the day’s JHA and full PPE is mandatory regardless of the site rules. Job tasks are preplanned and laid out so that responsibilities are clear and defined, and no one ever works alone. In other words, your safety program is absolutely on point.
However, despite your abundance of due diligence, checks and balances, and careful enforcement, one day your sandblaster enters a petroleum storage tank without a permit or a partner. The worker is alone, lacks supplied air, and is well aware he lacks a permit, yet decides to break the rules anyway. As soon as the worker cracks the seal he’s quickly overwhelmed by H2S, falling unconscious to the ground and hitting his head. Luckily a nearby worker saw him go down and rescued the sandblaster in time, but it was a close call. The consequences were still severe however, the worker is off work for an extended period due to persistent post-concussion symptoms and secondary depression.
How is any of this my company’s fault?—you’re saying to yourself. It’s really not. The worker made a very poor decision that nearly cost him his life, but ultimately, you’re still on the hook due to the Board’s ‘no-fault’ policy.
That doesn’t seem fair. There’s nothing I can do?
It depends. Every claim is judged on its own merit by different case workers, so it’s a fool’s errand to speak in certainties. With respect to the sandblaster, the claim will very likely be accepted based on the 3 point test. Yes the seasoned employee exercised poor judgement. Yes the worker has an H2S ticket and has spent decades around petroleum storage tanks. Despite these facts, it’s not likely that his actions would rise to the level of willful misconduct.
Pre-existing conditions
To carry this example a bit further, let’s now suppose the WCB accepts the sandblaster’s claim. In their opinion, based on the worker’s version of events, the Board deems the injury compensable. So fine. What now?
When this new information is brought to the Board, they decide that you’re entitled to substantial cost relief. The typical recovery time for a concussion is 7-10 days. For a minority their convalescence may extend to 30 days. But your injured worker has been off work for three months, a timeline more consistent with serious and repeated head trauma. Therefore, your request for cost relief has been granted.
Well it’s just come to your attention that your sandblaster was a semi-pro football player in his youth. Apparently this concussion isn’t his first, but in fact his fourth. This information is material to the claim, as the brain becomes more vulnerable with each successive concussion. So as the brain sustains more concussions, the recovery period tends to drag out longer. Traumatic brain injuries (TBIs) can also lead to, or aggravate, depression and anxiety.
Moral of the story
It’s never been more important for employers to get a fair hearing. WCB premiums are rising due to ballooning claim costs inflated by claim volume, longer claim duration, uncapped insurable earnings, a stagnant economy, and complex psychological injuries. Stoking the fire is the increasing strain on the workers’ comp system. Case in point; if an overloaded and inexperienced case worker is assigned to your file, that person may lack the time, skills, and context to appreciate all the nuances. So In the midst of this storm, it’s essential to reduce your exposure to injury-driven premium increases, legal liability, and impairments to your bidding power.
