What your WSIB Consultant should be able to tell you (and what you should ask them)
Since 2008, WSIB Consulting, for both Employers and Employees, has been a service regulated by the Law Society of Ontario. That means you must hold a license issued by the Law Society to provide legal services.
While many people will tell you it is only necessary to hold a license if you representing a company at a hearing (Appeals Resolution Branch or the Workplace Safety and Insurance Appeals Tribunal) this is false.
The foundation of any appeal is the FORM-7. That makes that document, and any/all other WSIB documents legal documents. Anyone who advises on any WSIB issue/document is providing a legal service.
It is easy to identify a company that complies with the Law Society. Their company must be registered with Law Society to have a PROFESSIONAL CORPORATION as part of their name. If your service provider does not have PROFESSIONAL CORPORATION as part of their company name, you should ask them why they do not comply with the Law Society.
WHAT DOES THIS MEAN FOR MY COMPANY?
The Law Society was asked by the province to regulate certain services (such as the Highway & Traffic Act, Immigration Consulting as well as WSIB services) provide consumer protection. Why would your company choose to forgo your right to consumer protection?
To maintain a license with the Law Society a legal professional must do the following:
Carry Errors & Omissions Insurance of at least $2,000,000
Complete the LSO’s Annual Report
Participate in Continuing Education
Maintain trust account records
Follow all regulations of the Law Society for Record Keeping
Legal Professionals who maintain this standard receive a CERTIFICATE of AUTHORIZATION from the Law Society to provide legal services for that year.
SUMMARY: If your WSIB service provider cannot provide you with their CERTIFICATE of AUTHORIZATION from the Law Society AND provide you a proof of their ERRORS and OMISSIONS Insurance your company should probably start interviewing other service providers.
WHAT SHOULD I ASK A LICENSED SERVICE PROVIDER?
A licensed service provider can tell many things you:
How they manage files
Their references
Their fees
Here is what you should ask them?
Can you explain my NEER/CAD-7 rebate/surcharge to me?
What is the tipping point when a NEER/CAD-7 claim becomes expensive?
How will Rate Modernization affect my company?
I have been a WSIB professional since 1997 and nothing makes me angrier than when a client has told me they love a consultant because they won a big decision for them, but the client did not save any money.
Winning only counts if you win money!!!
EXAMPLE 1 — Last year I met a company that was in both NEER (manufacturing) and CAD-7 (installing
masonry brick). They told me they loved their consultant – a licensee – because he won the 50% cost relief on a very expensive claim in their manufacturing division.
Note: this company wanted to win very badly because they felt this worker abused the WSIB system and, in turn, their company.
This claim had a cost of roughly $400,000, so 50% cost relief saved them $200,000 in accident costs.
However, their NEER account was very small and their maximum claim cost for that year was $80,000. Before the 50% decision, their NEER Performance Index was *4.00; after the decision, their Performance Index remained at *4.00.
The NET financial gain from the 50% award was $0.00!
The consultant worked for this company on an hourly basis. He earned his fees because he did what the client told them he would do – HE WON!
However, he never explained that winning would not help their bottom line. The client assumed winning would return money to their company.
EXAMPLE 2 – Recently I met with a trucking company that spent over $20,000 in legal fees fighting a WSIB claim. Their driver had an at-fault accident. The vehicle had to be written off and the driver will have to be retrained.
The company feels they should not be liable for any WSIB costs.
Their NEER shows this claim is beyond the maximum claim cost of $420,000 for that accident year. The owner cannot sleep because she does not know how she will ever pay this fee.
The good news: She will never have too. This is a small company. Their maximum NEER surcharge is less than $30,000.00, which they paid in 2016.
They have spent more than the cost of this claim in legal fees out of fear. I have advised them to stop the appeal because they will never recoup the cost of legal fees relative to the cost of the claim.
I had them ask their lawyer what the cost of the claim his. His response “I don’t know because the costs are unknown”. The costs are known. They are on the NEER statement!
It is not the cost of the claim. It’s how it impacts your NEER.
Example 3 –- Gradual On-Set Hearing Loss
At least once a month I contacted by an employer who has been told the WSIB has granted entitlement for a hearing loss claim for a worker who retired more than 5 years ago and they want to fight the claim.
The answer is always the same. There is no need to fight this claim:
The claim is outside of the 4 year NEER window (or 5-year CAD-7 window)
Gradual on-set claims ARE NOT experience-rated
They will appear on your accident cost statement but those costs do not get charged to your NEER or CAD-7
In other words – No Harm, No Foul
The point of these examples is you should ask, “What’s in it for me if I win my appeal”. If the answer is $0.00 and you’re only fighting for pride, you need to put a price on your pride.
Or, as Professor Bob Kerton taught me in ECON 241 – Cost-Benefit Analysis – at the University of Waterloo in the fall of 1986.
“Bygones are Bygone”
Decision at the Appeal Branch to Overturn an Entitlement
Abstract: It is not unusual for the WSIB to grant entitlement to benefits for a workplace injury where the employer questions whether a workplace accident occurred or not.
This appeal focused on the probability a workplace accident occurred versus pre-existing conditions:
A: the initial incident was not a workplace accident but a physical condition this worker dealt with for many years.
B: the secondary (compensating) injury was also a result of the pre-existing condition and was not impacted by the worker’s sedentary modified work duties
The appeal resulted in a complete reversal of the original decision. Entitlement to benefits was overturned and this file was removed from the client’s experience rating statements.
Nature of the Workplace Accident: While repositioning a resident the PSW felt immediate pain in her left wrist and arm. Entitlement was granted for a left wrist strain and the worker began performing modified duties.
The worker’s hours of work and income level were maintained.
The modified work plan, signed by the worker, was limited to the following duties: Distributing Linens and Returning Laundry to residents, answering the call bell, singing and checking all lists, inventory of the stock room and performing safety checks.
The worker underwent an X-ray and Ultrasound within 30 days of the date of the accident and it was found she had Carpal Tunnel Syndrome (CTS).
Later she underwent an assessment at the Musculoskeletal Program of Care (POC) where she was diagnosed with a right triceps strain, and a repetitive strain to the right shoulder due to overcompensating for the left wrist strain.
Entitlement was granted for the following reasons:
The Medical Consultant (MC) concluded:
The worker suffered a triangular fibrocartilage complex (TFCC) tear that is not usually attributable to the work-related injury
The worker returned to the strenuous duties of resident care
As resident care is normally a two-handed job overcompensating with the opposite arm is a plausible outcome
Conclusion: the workplace accident caused an EXACEBERATION of both the pre-existing CTS and the pre-existing right shoulder cuff tendinopathy.
A letter for reconsideration of this decision was denied.
Basis of the Appeal: Initial Entitlement should not have been granted for either the initial wrist injury of the secondary shoulder injury.
The worker had undergone an MRI as part of their treatment. The MRI findings include severe thinning of the TFCC articular disc with possible central perforation, mild lunate chondromalacia, subluxation of the exterior carpi ulnaris tendon with complete disruption of the ECU sheath, a mild increase of fluid in the fourth extensor compartment tendon sheath consistent with mild tenosynovitis.
The MC concluded the finding of mild lunate chondromalacia is unlikely compatible with the work injury.
The MC also concluded that CTS is a chronic condition and is not generally related to acute injury. “The reported presence of CTS symptoms on the contralateral side would suggest that this condition is not directly related to the work injury.”
The appeal also included a request to overturn the decision to grant entitlement for the secondary right shoulder injuries as a result, which were granted on the grounds the worker had to overcompensate to provide patient care.
The Appeals Officer reviewed the initial and subsequent offers of modified work and agreed that the assigned duties were clerical/administrative and any patient care did not include lifting.
The appeal was successful and both entitlement decisions were overturned.
This decision was granted in March 2020. All costs of this claim will be removed from the client’s 2018 NEER charges. Further, this decision will reduce the client’s 2020 premium rate under the rate framework model, and will continue to do so every year into the future.