September 1, 2006 By: Peggy King and and
Print

This article details current changes at the Workplace Safety and Insurance Board (WSIB) that impact employers.

The Workplace Safety and Insurance Board offers certain protections to employees who are injured on the job. For condominium corporations, coverage is generally not mandatory. In other words, condominium corporations can decide whether or not to apply for coverage (whereupon WSIB coverage could be obtained for all, not just some, of the corporation's employees).

All condominium corporations with employees should seriously consider making application for WSIB coverage. The key reasons are:

  • WSIB benefits would then be available to employees;
  • The risk of lawsuits against the condominium corporation is reduced. WSIB coverage replaces the employees' right to sue the employer for similar benefits.

The WSIB has implemented several new initiatives and altered some administrative processes that impact how employers do business with the Board. The following outlines some of the changes as well as an internal restructuring that affects an employer's (including a condominium corporation's) relationship with the decision makers, that ultimately affects the bottom line.

Return to Work Policies

In late 2005, the Ontario WSIB released its draft policies regarding early and safe return to work (ESRTW). These policies were viewed by the employer community as being overly generous to injured workers and recognized as placing an increased financial burden on employers.

The original draft policies recommended these changes/amendments:

  • A definition of ESRTW which did not mean an immediate return to work, but a return when it is appropriate to do so;
  • Sustainable work required on a more permanent basis where workers have ongoing physical/psychological limitations. Ideally, the job should be available in the general labour market. This would prevent employers assigning workers non-productive tasks as a cost-containment measure;
  • Greater emphasis on the duty to accommodate by attempting to harmonize the various obligations found under the WSIB and Ontario Human Rights Code. Under current policies, the WSIB will only intervene in return-to-work situations where there are compensable limitations and after receiving a request from one of the parties. The WSIB will not intervene if the worker has non-compensable limitations – typically dealt with through Human Rights legislation and the grievance process; and
  • Requires written offers of modified work with detailed job descriptions.

The WSIB received input from stakeholders until January 2006 and meetings were held to review the recommendations. The employer community raised numerous concerns about the increased obligations and the financial impact that would result from the proposals. These concerns combined with lobbying efforts from employers resulted in the return of the proposed policies to the WSIB policy branch for further consideration.

It is anticipated that the new draft policies will be released in the fall of 2006 and a further public consultation period will follow. It has, however, been suggested that the proposed new policies will not significantly change. The final version of the policies will likely be implemented by late spring or early summer of 2007. As well, when the new revised policies are released during the fall of 2006, pilot projects will be implemented in various service areas, even though the policies have not been confirmed. This is significant as this means that decision-makers will begin to render decisions in accordance with the more stringent obligation that employers face, even before the policies are officially confirmed by the Board.

Obviously, the changes will have an impact on condominium corporation employers as most of the workers would be employed in manual labour occupations. It is more difficult for a small employer to accommodate an injured worker who regularly performs moderate to strenuous physical activity as part of his or her daily routine (when this is prevented by medical limitations). Often, smaller employers are not in a position to provide accommodated work on a temporary or permanent basis.

The proposed return-to-work policies require employers to provide accommodation that is productive and not just a cost-containment measure. Should the new policies be implemented, many employers will likely see their injured employees being referred for labour market re-entry (LMR) assessments and plans, rather than returning them to modified work at no wage loss. This will be reflected in increased costs to the employer.

The New Form 7

In late 2005, the WSIB released the new Employer's Report of Injury/Disease form, which is also known as the Form 7. Failure to use the new Form 7 can result in the levy of a fine. The new accident reporting form requires greater detail with respect to the claimed area(s) of injury, the worker's earnings information, and return to work offers. Any return to work offers should provide a detailed job description.

As previously discussed, the new proposed return to work policies will require that employers confirm their offers in writing. This is beneficial to an employer should a decision maker at the WSIB review a request by an injured worker for additional loss of earnings (LOE) benefits. When a decision maker reviews the suitability of modified work, they determine whether the work offered respects the injured worker's functional and/or psychological limitations. A wellpapered trail makes it easier for the employer to defend against further requests for benefits.

Previously, the Board required injured workers to co-sign Form 7, unless they did not agree with the employer's account of the injury. Injured workers are no longer required to co-sign Form 7 as they are required to submit their own Worker's Report of Injury (Form 6) under their own signature. Form 6 requires a worker to consent to the release of their functional abilities information to their employer and the WSIB. The worker is also declaring that the information provided about the work related incident/disease is correct.

In summary, these changes could result in additional charges to the condominium corporation for failure to comply. We feel that it is important for all condominium corporations to be aware of their obligations as a result of these changes.

The authors are with the law firm Nelligan O'Brien Payne LLP in Ottawa. Peggy King specializes in Workers' Compensation Consulting. She has more than a decade of experience at the Ontario Workplace Safety and Insurance Board (WSIB). Nancy Houle is a member of the firm's Condominium Law Practice Group. Her practice includes general corporate advice to condominium corporations. James M. Davidson is a partner at Nelligan O'Brien Payne LLP and head of the firm's condominium law group. He was the Ottawa representative on the CCI/ACMO Joint Legislative Review Committee (dealing with the new Condominium Act).

[This article is reprinted with permission and first appeared in the Fall 2006 issue of CM Condominium Manager Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law