When does your internal paralegal get involved with my files?
Since 2008 WSIB consulting has been classified as legal services meaning anyone working on your files (including Form-7s) is offering legal advice.
For most WSIB service providers they only utilize their Paralegal when an appeal reaches the Tribunal.
Regardless of how much experience your consultant has they are doing a disservice to your company if they do not meet the legislative requirements.
A licensed paralegal is required to carry $2,000,000 in errors and omissions insurance. They are fiscally responsible if the advice they give is incorrect and causes damage to your company.
Ask your risk manager how many other industries they accept credentials below the recognized provincial standard.
If your consultant does not have Professional Corporation as part of their company name you should ask them why they don’t and if they can provide a Certificate of Authorization to provide legal services for their practice
How do you pay your WSIB Consultant?
Legal Services in Ontario do not have to be paid for by the client until they are provided. If a Consultant, working under the rules of the Law Society of Upper Canada, is providing these services under a monthly retainer than those funds should be held in a trust account, and remain your money, until the legal services are delivered.
Most companies do not incur an accident where they require the services of their WSIB every month and often go many months without a lost time accident.
As an example let’s say a retainer fee is $500/month and your company has been accident free for 6 months with no other work being done on a prior file.
That company should have $3,000 being held in trust by their consultant. If they choose to end the service relationship the service provider should return the $3,000 plus any interest the funds held in trust generated.
The disadvantage with working with a firm that works outside of providing legal services is you may be paying for nothing.
Your Service Provider is charged with seeking cost relief for your company but have they done everything possible to gain that cost relief?
In 2009 the WSIB created the SIEF team so that cost relief was only awarded if medically warranted and the pre-existing condition played a role in the current accident.
As we all know SIEF is very hard to get. The majority of SIEF appeals end with a denial letter from the case manager.
However these decision can be appealed up to the Tribunal (WSIAT). In many cases SE-GA (the firm I represent) has won 75-90% cost relief at the Tribunal after our requests were denied by both the Case Manager and the Appeals Resolution Officer.
This decision is a great example of gaining SIEF at the Tribunal http://www.canlii.org/en/on/onwsiat/doc/2014/2014onwsiat1755/2014onwsiat1755.html?searchUrlHash=AAAAAQAMc2VuaWNhciAyMDE0AAAAAAE&resultIndex=3
Ask you service provider how often they go to WSIAT to seek cost relief (or if they have ever increased the initial SIEF award on appeal).
NOTE: It is possible the WSIB can reduce an SIEF award on appeal if they over-classified the award on the initial application. If your paralegal is licensed their errors and omissions insurance would be liable in the event of a decreased SIEF award therefore there is no risk to the client.
Hourly vs Contingency?
This is really a continuation of the last question as it really only applies to cost relief appeals.
Over the course of my 18 year career as a WSIB Consultant I have largely represented companies that seek cost relief on contingency (2 of the 3). I did represent a company that only provided services on an hourly fee for service arrangement. (Let’s call them Company H, and the other companies Company C)
Company H would argue they could deliver the same results at a fraction the cost as they would only be compensated for the hours worked. While this is true on theory it does apply to the real world of WSIB appeals.
Cost Relief is 4 No’s to get to the yes:
- Blanket Request for Cost Relief (2 hours)
- The Board needs to say no so you can request the accident file
- Appeal to theCase Manager, if denied (5-7 hours)
- Request for reconsideration of the decision to theCase Manager, if denied (5-7 hours)
- Request Cost Relief from the Appeals Resolution Officer (15+ hours including getting an Independent File Review by an Orthopedic Surgeon at $3,000+)
- Ultimately submit the Appeal to the Tribunal
The problem with hourly appeals is the costs escalate very quickly with a high probability of no results. At some point most companies will stop their consultant from continuing the appeal. Remember, they have no skin in the game and earn their fees regardless whether their appeal is successful or otherwise.
Company C has to follow the same steps but incurs all costs including the Independent File Review. The client has no reason to stop the consultant from pursuing the appeal as the consultant is only paid on the net result.
If it was possible to gain cost relief early in the process who would be more likely to want to accomplish that feat? The one that is compensated on time spent or results generated?
What Ethics Standard is your Consultant held to?
Licensed Paralegals must abide by the strict ethics standards of the Law Society of Upper Canada. Much as Doctors, Veterinarians, Accountants and Teachers belong to the Colleges of their trades Lawyers and Paralegals are bound by very strict rules that govern their practices.
Any Paralegal that misrepresents their capabilities, invoices unfairly or does not hold your company’s information in strict confidence runs the risk of having their license suspended or removed by the LSUC.
By working with an unlicensed service provider you are removing your consumer protection.
Bob Hopkins an independent paralegal who has a professional relationship with Sega Workplace Consulting.