When is a WCB Claim Not a Claim?
Nobody wants or likes a Workers’ Compensation (WCB) claim, neither workers nor employers, but the reality is that they are unavoidable. While the majority of work-related claims are relatively straightforward, resolved quickly, and adjudicated appropriately, there are situations that are more complex, contentious, and/or less obvious. They require a closer look to determine whether they are an acceptable WCB claim.
Employers are entitled to question the validity of these cases, to have the rationale for acceptance explained, and to appeal any decision made on a claim— including acceptability.
Whether it is because of worker-related issues, worksite related incidents, or other outside factors, there are times when employers get frustrated and want to question the validity of a WCB claim. A tremendous amount of time, energy, and resources can be wasted trying to fight a WCB claim, more often than not without success. The result can be increased claims costs and higher WCB premiums. So what is the most effective way to handle a questionable WCB claim?
When an employer should contest a claim and the best ways to proceed:
- Assume the claim is acceptable and proceed as if it were – regardless of the circumstances (and how obvious the denial might seem) there are no guarantees and delays on a claim can be costly. Provide all required documentation and information in a timely manner. This includes the Employer Report of Accident, Return to Work plans, modified duty programs, earnings info, etc. This will ensure you have done all you can to help an injured worker get back to work as quickly and safely as possible. This will also help to mitigate additional costs. If the claim is ultimately denied the costs will be removed from your account, but if the claim is accepted you haven’t incurred any unnecessary costs.
- Gather all the information and documentation you feel is relevant as quickly as possible – eye witness statements, logbooks, video recordings, pictures of the scene, and employee records. Information collected closest to the inciting incident is the most accurate. This documentation and reporting is often key to the entitlement decision on a claim.
- Advise the WCB in writing of your intent to contest the acceptance of the claim – then start preparing your argument in a clear, concise manner, referencing specific policies or sections of the Workers Compensation Act (Act) where applicable. “I’m not happy with this claim” is not a sufficient reason to get a contentious claim denied. The WCB must make decisions in accordance with the Act and cite policy and legislation when providing the rationale for their decision. While claim decisions are not made arbitrarily, the onus is on the employer to provide evidence to support the denial of a claim.
Now that you have met your obligations as an employer, gathered the appropriate evidence, and advised the WCB of your intent to contest the claim, you have the luxury of time to re-evaluate your position and confirm that objecting to the claim is worthwhile.
What are the next steps to consider after contesting a claim?
- Review of the WCB legislation and policies applicable to the situation.
Every acceptable WCB claim must meet two conditions; it must arise out of and occur in the course of employment. If either of these conditions is not met, it is not an acceptable claim. If, after all the available evidence is gathered, only one of these conditions is met and a decision can not be made regarding the second condition, then a statutory presumption is applied and benefit of doubt is given to the worker.
Workers are not entitled to compensation if they have removed themselves from the course of employment by their actions, and may not be entitled if the accident was a result of serious and wilful misconduct.
Do the circumstances meet the legislative requirements of an acceptable claim? Did it arise out of, and occur during, the course of employment? Was there a work hazard involved? Is there a valid reason the claim should be disallowed, or are the circumstances just annoying?
2. Consideration of the impact on your organization if the claim is disallowed. Would this leave your organization vulnerable to litigation or civil action because you and/or your employees are no longer protected under the worker’s compensation act? This is particularly important when contesting a claim based on serious and wilful misconduct or horseplay. While this may be grounds for dismissal, if a WCB claim is disallowed, the injured worker is then free to file a lawsuit against the organization or co-workers, which could cost far more than a claim would.
3. Exploring other options for reducing and/or eliminating claims costs, such as:
- Cost Relief Is there a pre-existing or concurrent condition that is impacting an injured worker’s recovery?
- Transfer of Claim Costs to another Employer. Section 95(2) of the Act addresses the transfer of some or all costs to another employer due to negligence or contributory factors. Was there negligence on the part of another employer? Was there faulty equipment? Did a worker from another organization contribute to the accident? Did the accident happen as a result of faulty equipment manufactured by another company?
- Third Party Action: Was there someone or something that contributed to the accident and were not covered under the act? This is often the case when a worker is involved in a motor vehicle accident, in which case the WCB legal department is involved and any recovery of costs are then applied to the claim.
At the same time, you should also:
- Continue to pursue your dissatisfaction until you get a written decision, complete with rationale. If, after reviewing your position and considering the WCB’s reasons for accepting the claim, you still do not agree that the claim is valid, the next step would be to enter in the appeals process, taking the issue to the Dispute Resolution & Decision Review Board and ultimately to the Appeals Commission. It is worth noting an investigation into an employer’s objection to a claim can occur at the same time a claim is in active progress and resolution of an employer’s concerns can continue long after a claim is closed.
- Pay attention to time limits for taking action on a decision. In the case of the WCB Alberta, most decisions have a 12-month time limit to register an appeal of a decision. Missing a deadline can result in a claim decision standing regardless of how wrong it is. It is better to file an appeal and ask for an extension than to request that the statute of limitations be waived.
Contesting a WCB claim can be a long, arduous process and while it may be true that you may not meet with success, under the right circumstances it is definitely worth pursuing.
For further information on contesting a WCB claim or if you are unsure if you should be contesting a claim, you can contact us directly at BCL.Calgary@bclconsulting.ca, BCL.Edmonton@bclconsulting.ca, by phone, at 1-844-377-9545 or you can connect with us on Facebook ,Twitter , or LinkedIn.