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Managing the material changes in individual circumstances

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Conduct ongoing investigation throughout the duration of the claim[/span]

Claims management is an endeavour that should be undertaken for the life of a claim. Many articles have been written, and much advice given, about how to manage the front end or early stages of a claim — meaning identification of any issues in dispute with initial entitlement to benefits and to ensuring suitable work is offered as early as possible. However, long-duration claims sometimes fall by the wayside, despite ongoing claim costs. 

Employers tend to spend a lot of time in the early stages of a claim trying to help a worker get back to work. But what happens when a claim becomes prolonged? What happens when a worker needs an initial or subsequent surgical procedure some time down the road? What happens when the worker’s doctor states he is incapable of performing suitable work or any work at all? Or when a worker advises the employer she can no longer work because her condition has worsened? Should employers take that information at face value or do additional questions need to be asked? 

I am a firm believer in ongoing investigation to confirm the true nature of a condition and the real reason why workers say what they say. Perhaps there are other factors at play that may result in the worker not being entitled to further benefits.

Workers are generally entitled to health care and wage loss benefits that relate to the work-related injury. However, sometimes there are other factors involved that may be keeping a worker from being able to work. Perhaps these are family situations or worsening of a non-compensable pre-existing condition. Perhaps the worker has decided he no longer wishes to work with the injury employer and voluntarily leaves his job, or decides to move out of province for personal reasons. These are all factors that may limit a worker’s entitlement to benefits.

I worked on one particular claim where the employer was having difficulty in getting a worker to return to suitable duties. The worker would not return phone calls, and when he did, he left messages late at night. The worker eventually told the employer that he could not return to work as he was taking parental leave with his new baby. The employer advised the compensation board, which determined that the worker’s wage loss was due to a personal situation and not due to the work-related injury. It determined the date he began receiving wage loss benefits from the government due to the parental leave and suspended his benefits as of that date. His entitlement to further benefits would be reviewed once he had completed his parental leave.

Workers are required to report “material changes” to the compensation board as such changes may affect their entitlement to benefits. However, they do not always do so. As an employer, it is important to continue to gather information from workers throughout the period of recovery, and to make sure the compensation board is informed of any material change. If a worker is suddenly unable to keep working, ask questions to try to determine why. Information may also be provided directly by the worker or by other sources, including co-workers, who may have some insight into a worker’s situation. For example, it may be the worker is not able to work because she requires treatment for a non-work-related condition. In other situations, the worker may need to take time away from work to care for a family member who needs treatment. While these are legitimate scenarios, they may negate the worker’s ability to claim for payments from the compensation board. 

When such information does become available, be sure to report it to the compensation board, so it can make a determination about whether the worker should be entitled to further benefits while he is off work. If the compensation board determines further benefits are in order, this may be an appealable issue for the employer. As ongoing benefit payments may have substantial financial implications for the employer, it is important to ensure benefits are only paid when they should be paid.

Employers need to remain diligent in managing compensation claims from the outset to conclusion; whatever that conclusion may be. Sometimes it means the worker returns to his full pre-injury duties, sometimes he returns to permanently accommodated work and sometimes he seeks work elsewhere. However, employers must always manage the claim to ensure workers only receive benefits to which they are entitled under the workers’ compensation legislation. The compensation system exists to assist workers with losses due to work-related injuries and illnesses. Because employers bear the costs of that system, they need to keep an eye on the benefits being paid out of it.

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David Marchione

David Marchione is an occupational health and safety consultant and paralegal at Fasken in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com, or visit www.ehslaw.ca for more information.
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