1) Offer Modified Duties in Writing and attach it to every Form 7
Draft a VERY accommodating, supportive, offer of modified duties that permits rest, self-paced work, and time to attend medical appointments and treatment and upload it with the Form 7. This may include a brief period of working from home and should be offered to every employee without fail (including psychological injuries) no matter what the family physician has written on the note. There are a few exceptions to this standard operating procedure for employees in the hospital or other more serious and debilitating occupational disease claims. A diagnosis of any psychological injury is not equivalent to being 100% occupationally disabled. In all claims, if you have made a very accommodating offer of modified duties, request a detailed written decision explaining why your offer was deemed not suitable at this time based upon specified functional limitations. If the medical supporting time off is insufficient (it usually is) then it may be time for an IME. Send us an email, we will send you a draft offer of modified duties for regular claims and psychological injury claims.
2) Complete and upload an Intent to Object Form (ITO) for every WSIB decision
Upload the ITO for every Board Decision granting benefits/entitlement or LOE to protect your rights to go forward to appeals anytime in the future, should new information arise or if the claim becomes costly, complex, and prolonged. This should be explained to any employee who asks that the filing of an ITO is standard practice in working with the WSIB and their time limits. It is not in any way personal.
Here is some draft wording to put on your ITO as the reason for your objection:
We either currently have or may develop concerns with this claim, the adjudication of the claim, previous related decisions regarding this claim, or all of these, at any time during which this claim could impact our annual premium calculations.
Additionally, given the Board’s Policies and Practices, as it relates to the extension of time limits to object and our previous experiences with insufficient or incorrect medical information, hasty adjudication decisions, and serious relevant misinformation that arises in the duration of a claim, we are objecting to this decision. This ITO is being submitted now, in a timely fashion in order to preserve our rights to appeal this decision at a later time should the need, circumstances or material facts change or become known.
3) Pay much more attention to the Form 7 – it should be complete, researched, and very carefully written:
- The Form 7 is a critically important document in the process.
- Ideally, you should send your Form 7 to us, so we can spend a few minutes reviewing and revising it before you send it in. This should be done for every claim that may be questionable, suspicious, concerning, or has the potential to be very costly.
- Ideally, you have completed an accident investigation (with pictures) for every claim, before the Form 7 is completed.
- You have reviewed the employee’s history of STD/LTD/WSIB claims and employment history with your company. Is this a medical note or F6 filed to delay termination? Do you have any concerns with this claim?
- Section C6 (front page) should be completed using language that reveals that you are briefly reporting what the employee has reported, stated, or indicated and not what has actually occurred. Section C6 should never be completed using the employee’s language or words. It is the EMPLOYER’s statement or understanding about what happened, and signing that F7 means that you are accepting possible individual liability for what could be a very costly claim, which could increase your annual premiums for 6 years.
- Detailed witness statements should be obtained as part of your investigation.
- An Amended Form 7 can be filed if one was already filed incompletely, or with information that should be revised.
- In Section K of the Form 7, ask the WSIB to review their database for any relevant Permanent Impairments from past claims that the worker may have which could influence the return-to-work process. Request a medical history including all relevant past similar or related injuries or conditions be obtained from the family physician for all minor accidents (that is most) and all gradual disablements. Ideally, you have a pre-employment health screening process which helps you to hire employees who have the ability to perform the essential duties of the job for which they are being hired.
4) Install video cameras outside and inside
Video cameras have saved employers thousands of dollars in costs, assist with investigations, and contribute to security and protection. They are a very low-cost, effective risk management tool. Securing the assistance of a Private Investigation firm for potentially feigned or malingered claims also falls under this SOP.
5) Consider obtaining an IME for all psychological injuries
The WSIB spends 89M$ per year on psychological injury claims and this amount is growing by 2.5% annually. The prevalence of feigning and malingering psychological injury claims (PTSD, Chronic Pain, MTBI) is estimated to be between 30 and 60%. At this time, the WSIB does not (yet) require their third-party treatment providers (e.g. Altum, CAMH, Sunnybrook) who are paid millions annually for their services, to conduct very simple Performance Validity Testing or Symptom Validity Testing with these claims. This means that these costly, time-consuming claims are essentially driven almost exclusively by subjective self-report information and no other collateral information or input from others or the employer. No qualified clinician has even assessed the possibility of feigning and malingering. Usually, it is only the persistence of complaint that wins the day in far too many claims. And that is not a sufficient or valid basis to allow lottery-sized awards of benefits to employees who could be feigning and malingering in 30-60% of the cases. There is nothing wrong with expecting objective, evidence-based adjudication that is compatible first with the law, and then with Board policy, for all claims. Let’s make the system better.
Cézanne
