Victory for Transfer-of-Cost Employers with WSIB

​Clear Path recently challenged what could be considered a precedent-setting decision from the Workplace Safety & Insurance Board (WSIB) that would have put certain employers at a serious disadvantage.
 
Our red flags went up after we received a decision from a WSIB SIEF Case Manager denying our ability to request cost relief for a client who was a Transfer-of-Cost (TOC) employer. The reason? According to the WSIB, the TOC employer is not granted the right to even request SIEF because they are a TOC employer. Why? Due to the Board's disclosure (privacy) policies!

As a result of our objections, we brought this issue forward to senior management at the Board and we were ultimately able to get the SIEF team to review their interpretation of its disclosure policy, acknowledging that TOC employers satisfied the definition of an employer and are therefore entitled to request SIEF cost relief when applicable.
 
What is a Transfer-of-Cost (TOC) employer?
 
In the event that one company’s employee is injured at another company’s location or as a result of the actions of another company, responsibility for WSIB claim costs may be transferred to the “at fault” company.
 
What is SIEF cost relief?
 
The WSIB offers cost relief to employers through their Secondary Injury Enhancement Fund (SIEF) when they have an injured employee who has a pre-existing condition that enhances or prolongs the work-related injury or delays the worker’s recovery. Two important considerations about SIEF:

• When applying for SIEF cost relief it is standard to receive a copy of the injured worker’s “access file” which contains relevant medical details that will be used to determine whether or not there is a relevant pre-existing condition.
• As part of its strategy to reduce its “unfunded liability,” the WSIB has been much more conservative in approving SIEF cost relief requests from employers in recent years.

 
Details 

• A client (“Company A”) had been deemed a TOC employer after a “Company B” employee had been injured on their property. The WSIB deemed “Company A” financially responsible for the injury and therefore for the worker’s WSIB claim costs. 

• Upon investigation into the claim, Clear Path sought SIEF cost relief for "Company A" as we believed the worker may have had a pre-existing condition that prolonged the worker’s recovery.  In response, we received a reply from the SIEF Team at WSIB: “Company A” was not entitled to even request cost relief because “Company A” was a TOC employer.

• The SIEF Department relied on its interpretation of Disclosure policies, 21-02-02 and 21-02-03.  According to their interpretation of policy 21-02-03 [Disclosure of Claim Information to Employers (No Issue in Dispute)], TOC employers are not permitted to request SIEF, but rather may only request limited claim information without an initial issue in dispute. 

• What this meant was that a TOC employer could not request SIEF because the case manager would not be able to tell the TOC employer why they may have denied SIEF because the TOC employer was not entitled to certain details of the claim that are typically provided during the SIEF process.  To Clear Path, not only was this faulty logic, it was also an unfair interpretation that placed TOC employers at a disadvantage.

 
Clear Path’s argument
 
After obtaining an interpretation from WSIB’s own policy department and several attempts to discuss this with the SIEF Team without success, we brought this matter to the attention of WSIB’s Chief Operating Officer John Slinger.  We expressed our concern regarding the application of the SIEF Department’s unfair interpretation of disclosure policies, in essence advising that the TOC employer bears the cost of the claim and should be entitled to pursue cost relief if applicable. 
 
By way of argument, we noted: “Regardless of whether there is an issue in dispute, a TOC employer is still required to bear the financial outcome of a claim.  Therefore to deny a request for SIEF is a denial of natural justice.  As such, this office finds WSIB’s reliance on disclosure policies as a way of baring requests for SIEF to be a prejudicial and irresponsible practice that denies TOC Employers effective participation in the decision-making process.”
 
Ultimately, the WSIB agreed!
 
Approximately four weeks after submitting the letter, we received a response from the Director of the SIEF Team on behalf of Mr. Slinger, which stated, “…in [cases] where a TOC employer has received a notice of decision (not a full decision letter), but nevertheless wishes to object to the decision itself, the decision making practices… requires that the TOC employer be provided with a copy of the actual decision letter, including reasons, findings of fact and evidence.  This is so the TOC employer can meaningfully participate in the discussion/reconsideration process with the case manager and exercise their right to have the decision reviewed by the Appeals Resolution Officer if they so choose.”
 
Bringing it all together
 
For those professionals who regularly deal with claims and are familiar with WSIB policy and procedures, it is clear why this issue is fundamentally important as it relates to not only SIEF cost relief but in the entire decision-making practice. 
 
While participating in claims management it is important to remember the following:

• Do not be afraid to question a case manager’s decision! Case managers are not omnipotent; they are people who can make mistakes just like everyone else.  If you are provided with a decision that requires clarification or you altogether disagree, request written clarification and do not be afraid to object and escalate if necessary!
• Become familiar with WSIB’s policies and adjudicative practices. Without having at least some knowledge of policy it may be difficult to recognize those decisions that may require reconsideration.  Case Managers will often quote policy that support their decisions. Read these policies to fully understand the case manager’s logic and do not be afraid to speak with other departments, specifically the policy department, for clarification.
• Recognize if a claim has become too complicated!  If you do not have the resources or experience to handle a claim that may have multiple issues at hand, seek help from the experts before your company may negatively be impacted! 

 
Are you experiencing difficulties with a WSIB claim? Book a no obligation consultation with Clear Path's Anna Aceto-Guerin for some expert advice.

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