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:
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:
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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