Objecting to initial entitlement of a WSIB claimWhen you object to the initial entitlement of a WSIB claim, in effect having it denied outright, there are several considerations you should keep in mind. Here are some answers to some questions about the process:
What are some reasons that you would object to a claim?
There are several reasons why an employer would object to the approval of a WSIB claim, but the most common reasons are:
- You believe the injury is not compatible or consistent with the duties of the job
- You suspect that the injury is not work related (the result of activities off the job)
- You are concerned the claim is fraudulent
When should you object to the validity of a claim?
If you wish to object to the initial entitlement, it is important that you do so immediately. Ideally, you are including your intention to object on the Form 7, along with the results of your internal investigation and witness statements.
At minimum, indicate on the Form 7 that the investigation is ongoing and that you will be submitting documentation shortly. Once the WSIB has decided to accept entitlement in a claim, it is very difficult to have it overturned. You have a much better chance of having it denied outright then having an accepted claim overturned. Once benefits are flowing, the case manager is not likely to stop those easily.
What is the best way to have success with your objection?
Include as much evidence as you can along with your objection. That means performing an investigation after every accident or injury. Go to the actual location of the incident. Get pictures. Get a written statement from the injured worker as to exactly what happened (in addition to their Form 6) as well as any witnesses, ideally using your company’s own worker or witness statement forms. Review video surveillance footage if it exists.
This is where a lot of employers fall down. They just take the Form 6, fill out a Form 7 and submit it. Later, they may discover that they have concerns, but it may be too late.
What if you feel the injury or illness is non-occupational?
Just because you don’t agree that an injury is work-related doesn’t mean that the worker isn’t having an issue or that you shouldn’t support them through their recovery and return to work.
If you think the worker’s issue or injury may not be work related or compatible to their normal work duties, you should let the worker know and point them towards your company’s sick days or Short-Term-Disability (STD) benefits programs if they require lost time. Let them know that you will accommodate them (as per Human Rights obligations) and support them in their recovery regardless of it being work-related or not.
We recently helped a client to object to a claim for a worker who had injured himself playing baseball. He was later diagnosed with a ganglion cyst and claimed this was work-related. We argued against this and the claim was denied.
How do you prove that an injury is not compatible with the duties of a job?
Having a Physical Demands Analysis (PDA) for each position in your company will provide you with clear evidence to provide to a WSIB Adjudicator, so they can more readily determine compatibility. It also can serve as an effective tool during the Return-to-Work process for an injured worker.
In the absence of a PDA, an employer can still argue that an injury is not consistent with the duties of a job. Provide as much evidence as possible to support your argument, including pictures and written job description.
Do you have a real-world example of an injury that was not compatible?
We recently helped a customer with an employee claiming that the exertion he needed to “turn” the steering wheel in the company’s forklift caused him to injure his shoulder. However, we successfully argued that the turning mechanism on the machine can be moved with the effort of one finger and does not require any “cranking.” We were able to provide pictures of the machine and more detail of how it is used in different applications so the case manager had a better idea of the effort required. The claim and initial entitlement, was denied.
Would there ever be a time that you wouldn’t submit a PDA, even if you have one?
Interesting question and difficult one to answer. You may object and have a verbal conversation with the claims manager, but you may not want to send the PDA if it doesn’t support your argument. If someone has only been doing the job for a short period of time and claims a repetitive strain and the PDA actually identifies a potential risk of that, then the WSIB is going to automatically approve the claim, regardless of the fact that the duration in that job does not support the claim. In those instances, we would recommend considering not submitting the PDA.
Any final thoughts?
Consider utilizing a medical professional as part of your claims management process. If you have access to a nurse or other medical professional onsite, have them get a health history from the worker (especially for gradual onset claims). If you don’t have access to one, consider utilizing external medical resources. They will assist with return to work and at time can also assist with determining compatibility with a job and the injury itself. At minimum an investigation is always a good idea. If all fails, don’t hesitate to reach out for assistance, sooner rather than later.
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