Workers Compensation Awareness Session Denis St-Jean
INTRODUCTION – Workers Compensation Awareness Session • Your Name • Function • Experience, Knowledge - Compensation • Challenges / Expectation? • Facilitator
SESSION OUTLINE • Introduction • GECA • Collective Agreements • TBS Policies • How to get a claim approved by the Board? • Roles of Parties • Other Compensation Options • Conclusion / Feedback
Lifecyle of a claim Before the Injury The Injury Compensation Short term Permanent Return to Work Accommodation Short term Permanent INTRODUCTION
GECA • Government Employee Compensation Act – 1918 reviewed in 1952 • Covers Federal Government Workers – 300 000 • Coverage a personal injury by an accident and/or desease arising out of and in the course of employment • References to Provincial Workers Compensation Acts
GECA • No Fault System • Employer assumes financial cost while workers gave up their right to sue • Provincial / Territorial Boards adjudicate claims • Same basic principles between Boards, but there are differences in benefits
GECA • Coverage includes: • Loss of earnings • Non-economic loss • Medical, medication • Rehabilitation • LMRs • Return to work provisions
GECA • Summary • Provincial / Territories Compensation Legislation • Benefits • Adjudication & Appeal Process • HRSDC – Labour Program • Administrative Agreement • Funding • 3rd parties
GECA • Challenges • Determining extent to which GECA incorporates provincial laws – lack of clarity • Presumption clauses application? • Rate / conditions vary from Province to province • Last review 1952 – but provinces update regularly their act
GECA • Challenges • Philosophy of Compensation has evolved since GECA was reviewed, many concepts are absent, but present in Provincial acts: • Presumption clauses • Return to work • Worker rehabilitation • Time limits • Fines and penalties • How to train PSAC members
COLLECTIVE AGREEMENT Injury-On-Duty Leave • 37.01 An employee shall be granted injury-on-duty leave with payfor such period as may be reasonably determined by the Employer when a claim has been made pursuant to the Government Employees Compensation Act and a Workers' Compensation authority has notified the Employer that it has certified that the employee is unable to work because of: (a) personal injury accidentally received in the performance of his or her duties and not caused by the employee's willful misconduct, or (b) an industrial illness or a disease arising out of and in the course of the employee's employment, if the employee agrees to remit to the Receiver General for Canada any amount received by him or her in compensation for loss of pay resulting from or in respect of such injury, illness or disease, provided, however, that such amount does not stem from a personal disability policy for which the employee or the employee's agent has paid the premium.
COLLECTIVE AGREEMENT Accumulation of Vacation Leave Credits • 34.02 For each calendar month in which an employee has earned at least ten (10) days’ pay the employee shall earn vacation leave credits at the rate of:
COLLECTIVE AGREEMENT Sick Leave With Pay Credits • 35.01 (a) An employee shall earn sick leave credits at the rate of nine decimal three seven five (9.375) hours for each calendar month for which the employee receives pay for at least ten (10) days.
COLLECTIVE AGREEMENT • 35.05 When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 35.03, sick leave with pay may, at the discretion of the Employer, be granted to an employee for a period of up to one hundred and eighty-seven decimal five (187.5) hours, subject to the deduction of such advanced leave from any sick leave credits subsequently earned. • 35.06 When an employee is granted sick leave with pay and injury-on-duty leave is subsequently approved for the same period, it shall be considered, for the purpose of the record of sick leave credits, that the employee was not granted sick leave with pay.
COLLECTIVE AGREEMENT Article 54 Leave With or Without Pay for Other Reasons 54.01 At its discretion, the Employer may grant: • (a) leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld; • (b) leave with or without pay for purposes other than those specified in this Agreement.
COLLECTIVE AGREEMENT • Other impacts: • Sick / Vacation Leave Credits • Employment Insurance Eligibility • CPP / QPP Benefits • Pension Plan • Disability Insurance • Life Insurance • Medical / Dental Insurance • Other benefits
CRA POLICIES Injury and Illness Policy Work-Related Injury Or Illness (Appendix C1) Workers' Compensation • An employee injured in an accident at the workplace or disabled by reason of an illness due to the nature of his or her employment, is entitled to receive compensation for loss of earnings, medical care and other benefits. These benefits are similar to those received by private industry employees through workers’ compensation in the province in which they work. • The government provides these benefits to employees under the Government Employees' Compensation Act (GECA) administered by The Department of Human Resources and Skills Development (HRSDC). Instead of establishing its own system for compensation and treatment, the government uses the services already available through provincial workers’ compensation boards. • The regional offices of Labour Canada are responsible for receiving and processing claims through to the appropriate provincial authority. They provide a general advisory service to employees and unions, as well as to employers, on the interpretation and application of the legislation.
CRA POLICIES Benefits Include: • compensation for loss of earnings (if an injured employees is not entitled to injury-on-duty leave); • medical, hospital, and related services; • rehabilitation services; • a pension, if an injury results in a permanent disability; and • pensions to dependants of employees who are fatally injured in the course of their employment.
CRA POLICIES Injury-on-duty leave • To avoid duplicate payment, it is extremely important that personnel officers indicate on the original injury report whether the injured employee is entitled to injury-on-duty leave, which is provided for in the collective agreement.
CRA POLICIES Information booklets • There are two information booklets available from Labour Canada. A handbook entitled "If You Have an Accident" should be provided to all employees, and a booklet entitled "Employer's Guide" should be in the hands of all persons responsible for the reporting of injuries.
CRA POLICIES Employers' Guide Disallowance of claims The most common reasons for disallowing a claim are the following: • It is not shown clearly that the disability is the result of an accident, or occupational disease. • The injury or occupational disease reported did not arise out of and in the course of employment. • A description of an accident is given, but the disability is not the result of it. • The injury reported is not substantiated by medical evidence.
CRA POLICIES Injury-on-Duty Leave • Employees of the CRA are eligible for benefits provided by the Government Employees’ Compensation Act for personal injury resulting from an accident in the course of and arising out of their employment or an illness that was a consequence of their employment.
CRA POLICIES Injury-on-Duty Leave Right to Choose Doctor • An injured or ill employee has the right to choose a doctor for the required treatment, but once the choice is made it must be adhered to. Permission to change doctors must be obtained in writing from the provincial workers’ compensation authority except in Quebec where there is no such restriction.
CRA POLICIES Verification of disability period • While CRA is awaiting the receipt of certification required for the granting of injury-on-duty leave, the disabled employee may be granted sick leave to the extent of his or her sick leave credits. • If the employee has insufficient sick leave credits, he or she may be advanced additional sick leave in accordance with the terms of the collective agreement. When sick leave is granted and injury-on-duty leave is subsequently approved for the same period, the employee is to be credited with the number of days of sick leave involved.
CRA POLICIES Termination of injury-on-duty leave • Injury-on-duty leave should not be granted beyond the date certified through Labour Canada that the employee is fit for work, including "light duty" work, where it is available.
CRA POLICIES Termination of injury-on-duty leave • Normally, after 130 (working) days, all employees will be paid directly by the provincial workers’ compensation board. • The level of payment will be based on the provincial regulations.
CRA POLICIES Termination of injury-on-duty leave • Provincial wage compensation benefits for totally disabled employees are generally 75% of earnings, based on a maximum annual earnings ceiling.
CRA POLICIES Duty to Accommodate Persons with Disabilities A request for accommodation need not be in writing, but should be communicated as clearly and specifically as possible. The person to whom the request has been directed should do the following: • Determine the type of accommodation required, based on information provided by the employee. • If the candidate or employee does not know what type of accommodation is required, consult experts in the field to determine the appropriate accommodation. This could include the person's own physician, psychologist or centres of expertise within the Public Service Commission or the accommodating department. • Provide the accommodation based on the request of the person being accommodated, or, if necessary, on the advice of experts.
CRA POLICIES Duty to Accommodate • Persons requesting accommodation may be asked to provide documentation from a qualified health care professional to clarify the limitations caused by the disability and/or the type of accommodation that would be most effective. • Any medical records provided should be kept strictly confidential and separate from personnel files. Requests for this type of information should come from personnel designated to deal with accommodation requests and trained to handle potentially sensitive medical information.
CRA POLICIES Duty to Accommodate • CRA should develop their own internal procedures for dealing with accommodation requests, including mechanisms for resolving situations where accommodation is denied. All candidates and employees should be advised of such procedures. • Persons who are denied accommodation may also wish to use the recourse mechanisms set out in the Canadian Human Rights Commission.
How to get a claim approved by the Board? • Claiming Workers Compensation • When? • How? • What should I say / not say? • What if I need accommodation? • Where can I get help?
How to get a claim approved by the Board? • Definition of Acccident includes: • A chance event occasioned by a physical or natural cause; or • The biggest reason for the denial of these claims is a lack of proof that an injury happened • A disablement arising out of and in the course of employment • The major reason for the denial of these claims is lack of prrof that the work caused the injury
How to get a claim approved by the Board? Personal injury by an accident and/or desease arising out of and in the course of employment: Exemple: Do not say: I fell and hurt myself. Say: I was walking through the office in the scanning division. I stepped on a marker that was on the floor. My right leg went forward and I lost my balance. I fell backwards. I hit my shoulder on the fax machine. I hurt my right shoulder on the machine. When I landed on the floor, I hurt my right wrist, my neck, and my right hip.
How to get a claim approved by the Board?Reconsiderations and Appeals Ontario: • A notice of Objection must be in writing • 6 month time limit to appeal Except for RTW / LMR: 30 days • Two (2) levels of appeals • ARO / Tribunal Québec • A written letter to the CSST • 30 days to appeal intial decision • A form must be completed to the CLP • 45 days to appeal
ROLES OF PARTIES Making a Case Plan: • Open a file for each worker • Keep copies of all information • Record all activities • Phone calls • Interviews • Letters • Confirm with the worker what issues will be addressed • Priorize issues and action • Note the date and level of decision by the Board relating to each issue • Note any issues that arise in qualifying for benefits • Determine what information is required • Witnesses • Medical information • Physical demands • Exposures • Analyze each problem and outline action plan
ROLES OF PARTIES Worker • It is better to talk in person rather than over the phone • Advise the worker to bring copies of all correspondence & information received • Encourage the worker to explain the problem • Review any document the worker has received from the Board or doctors for a history of the claim • Pre-accident job history • Description of job at the time of accident • Description of the accident • Events since the accidents • Review the relevant facts to make sure you understand correctly
ROLES OF PARTIES Board • Complete and send Authorization form to the Board • Include worker’s name and claim number • Explain reasons why you are writing and the actions you wish the Board to Take care • Explain any new information, indicate why they are important • Explain your arguments • Make sure the decision maker understands the issue • Keep a record of all calls
ROLES OF PARTIES Doctor • Introduction of yourself and your relationship to the worker • Reasons why you are writing • Brief statement of issue • Relevant brief background and history • Request the doctor’s medical opinion regarding the issue under appeal • Request that the opinion be evidence-based
ROLES OF PARTIES Local / Component • Identify local representative, involve this person in the representation process • Identify Service Officer and communicate with him/her to assistance and follow-up on accident investigation and corrective/prevention measures as well as leave advance if required, and eventually return to work strategy. • participation by a worker representative on the accident investigation team, will permit to obtain key information on accident causation which will often help the injured worker in making a demonstration that the worker’s injury was caused –by an accident arising out of and in the course of his employment or is disabled by reason of an industrial disease due to the nature of the employment -. • Assist member when a grievance may be required following being advised by the employer that the employee will be terminated if they choose to resign or to apply for medical retirement
ROLES OF PARTIES • Local / Component • TOOL Open file • Attach summary • Name of worker • Member number • Component • Local • Employer data • WSIB File Number • Injury/disease type • Date of accident • Name of treating doctor • Decision under appeal – date • timelines for appeal • Document all telephone conversation, interviews and letters • Protect appeal deadline with sample letter (template to be provided) stipulating that you are protecting the appeal deadline, you want a complete copy of the file, you will analyze the file and further advise the Board whether you will pursue the representation • Ensure that the worker and its Local/Component representatives understand that they are custodians of their claims
ROLES OF PARTIES Local / Component • It is recommend that each local has at least one person that has basic understanding of the WCB process who can assist the worker in writing the initial claim to ensure key elements of the description of event are included and to work with the worker to obtain sick leave credit advances from the employer and/or apply for other benefits while the Board analyzes the eligibility of the claim. A local representative should also work with the worker and the employer to ensure that accommodations are put in place when a worker has functional limitations requiring it.
ROLES OF PARTIES Regional Office • Work with member in need of Representation for Workers Compensation appeal • Work with Component and Locals for: • Initial claim • Process explanation • Appeal preparation • Explain Workers Compensation decisions and impacts for member and workplace • Provide training for interested Local officers in Rights and Obligations under Workers Compensation applicable Legislation • Lobbies Provincial Federations of Labour for legislation amendments • Work with Office of the Workers Advisors in those Provinces and Territories where they represent unionized workers
ROLES OF PARTIES National – Program Section • Represent Labour to Regulatory Review Working Groups • Lobbies Government for GECA legislative amendments