RETURN TO WORK / RETRAINING FOR INJURED WORKERS

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Responsibilities of the Workplace Parties in Work Reintegration

The workplace parties (workers and employers) are required to co-operate in the return to work reintegration (WR) process.

When certain conditions are met, employers may have, in addition to their obligations to co-operate in the WR process, an obligation to re-employ an injured worker who has been unable to work as a result of the work-related injury/disease.

The focus of the workplace parties’ WR activities is to work together to return the worker to the pre-injury job (with accommodation where required). Ideally, the worker will return to the pre-injury work.

Fink & Bornstein - Return to Work information - finklegal.ca

Return to Work / Retraining

WSIB has a new Return to Work Policy obligation for employers, the Work Reintegration Program (WR).

In November 2010 the WSIB announced new policies to compel Employers to return injured Workers to their former place of employment. These policies apply to all injured Workers no matter what their year of accident, or status in the Labour Market Re-entry Program. Penalties are one year's benefits, plus LMR costs, anywhere from $20,000.00-$70,000.00.

Our firm has specialized in the management of Return to Work obligations for 20 years. We can help you come to the most expedient resolution. Return to Work meetings are quasi judicial proceedings where determinations are made with many thousands of dollars of potential liability at stake."tab2

WSIAT (Workplace Safety and Insurance Appeals Tribunal)

If you are having problems with the Workplace Safety and Insurance Board (WSIB), you should call RICHARD A. FINK!

RICHARD A. FINK is recognized by Lexis Legal information as being the number one advocate (in appearances) at the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Richard A. Fink is a lawyer certified by the governing body of lawyers, (Law Society of Upper Canada) as a specialist. Richard has extensive experience with handling:

Workers Comp, WSIB, WSIAT, (OHSA) Occupational Health and Safety and Canada Pension Plan (CPP) Appeals for all types of benefits including: 

OCCUPATIONAL HEALTH AND SAFETY LAW IN ONTARIO

Every employer and employee wants to maintain a safe and healthy workplace. Employers, managers, supervisors, and ordinary workers have legal obligations under the Occupational Health and Safety Act (“OHSA”) to do just that.

The OHSA has three basic aims:
    
*    It sets out the legal duties of everyone in the workplace with respect to safety;
*    It establishes requirements to deal with workplace hazards; and
*    It creates an enforcement regime to ensure compliance with its rules and regulations.

                               

Responsibilities of the Workplace Parties in Work Reintegration

Fink & Bornstein - Return to Work information for injured workers - finklegal.ca

The workplace parties (workers and employers) are required to co-operate in the return to work reintegration (WR) process.

When certain conditions are met, employers may have, in addition to their obligations to co-operate in the WR process, an obligation to re-employ an injured worker who has been unable to work as a result of the work-related injury/disease.

The focus of the workplace parties’ WR activities is to work together to return the worker to the pre-injury job (with accommodation where required). Ideally, the worker will return to the pre-injury work. 

Disputes over job suitability are not acts of non-operation, nor is non-co-operation meant to apply to workers who raise a health and safety concern under the Occupational Health and Safety Act or the Canada Labour Code.

Workplace parties' co-operation obligations
The workplace parties must co-operate with each other and the WSIB in the RTW process by:
  • initiating early contact
  • maintaining appropriate communication throughout the worker's recovery ;
  • identifying and securing WR opportunities for the worker ;
  • giving the WSIB all relevant information concerning the worker's WR, and
  • notifying the WSIB of any dispute or disagreement concerning the worker's WR.
  • These co operation obligations apply to the workplace parties from the date of injury until the earlier of the date .
The worker's loss of earnings benefits can no longer be reviewed by the WSIB (usually 72 months after the date of injury, see 18 03 06, Final LOE Benefit Review), or

there is no longer an employment relationship between the workplace parties because either
the worker voluntarily quits, or
 
the employer terminates the employment for reasons unrelated to the work related injury/disease (and related absences from work), treatment for the work related injury/disease, or the claim for benefits.
The workplace parties' co operation obligations to each other also end when the WSIB is satisfied that no current suitable work with the injury employer exists, or will exist in the reasonably foreseeable future.
In order to determine if the workplace parties are co operating in the WR process, the WSIB will look at the extent of co operation in WR services. In those cases where the worker is not functionally capable of performing any type of work, the workplace parties are expected to maintain regular communication in preparation for a future return to work.

Ensuring compliance with co-operation obligations
The WSIB informs and educates the workplace parties about their obligations to co operate in the WR process, and all required WR activities, and supports them in the ways noted above.
In those cases where education and support have been provided to the workplace parties, but either or both of them refuses to co operate, the WSIB may

  • reduce or suspend the worker's benefits, and/or
  • levy a penalty on the employer that is equivalent to the costs of providing benefits to the worker.
The WSIB must determine that suitable work is available before it considers levying a penalty against the injury employer for failing to offer suitable work.
Factors which will not lead to a finding of non-co-operation
Workers
Valid reasons for workers being unable to co operate are generally limited to compelling circumstances beyond the worker's control such as a strike/lockout, death in the family, or unexpected illness or accident. These circumstances are typically of short duration.
(Even though a worker may have a valid reason for not co operating, his or her wage loss benefits may be adjusted if the employer has offered suitable and available work and the subsequent wage loss is no longer solely related to the work related injury/disease, see 15 06 08, Adjusting Benefits Due to Post accident, Non work related Change in Circumstances.)

Employers
Valid reasons for employers being unable to co operate are generally limited to compelling circumstances beyond the employer's control such as a summer or holiday shutdown, general layoff, strike or lockout, and/or corporate reorganization. In the case of small employers, such circumstances may also include a death in the family or an unexpected illness or accident. These circumstances are typically of short duration.
Application of non-co-operation penalties
In assessing whether non co operation has taken place, the WSIB generally looks to the pattern of actions and behaviours of the workplace parties. The WSIB considers and weighs all of the relevant facts and circumstances, including the degree to which the workplace party has initiated/participated in required activities.
For a non co operation penalty to be levied, the WSIB must be convinced, on a balance of probabilities, that a workplace party

  • had knowledge of his or her obligation
  • had the capability to carry it out, and
  • did not carry it out.
For both worker and employer non co operation penalties, the date the written notice comes into effect is seven WSIB business days after the date of the written notice.
Exception small business
The WSIB recognizes that small businesses may not have the capability or resources immediately available to achieve WR outcomes. Therefore, in the case of a small business (which for this purpose is defined as a business employing fewer than 20 workers), the date the written notice comes into effect is 14 WSIB business days after the date of the written notice.
Initial penalty—worker
The WSIB reduces the worker’s wage loss benefits by 50%
  • from the date the written notice comes into effect
  • until the 14TH calendar day following that date, or
  • until the worker starts co operating again, whichever is earlier.
Full penalty—worker

For early and safe RTW activities, if the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB suspends the worker’s wage loss benefits.

For work transition (WT) activities, if the non co operation continues beyond the 14TH calendar day following the date the written notice comes into effect, the WSIB terminates the WT assessment and/or the WT plan and reduces the worker's wage loss benefits to reflect the earnings the worker would have been capable of earning had he or she completed the WT plan, see 19 03 03, Determining Suitable Occupation.
NOTE: Wage loss benefits remain reduced/suspended until the date the worker starts co operating again, at which point the WSIB stops the non co operation penalty and restores wage loss benefits. Wage loss benefits are restored on the day following the day that the WSIB is satisfied of the worker's renewed co operation.

Initial penalty-employer
The WSIB levies an initial penalty of 50% of the cost of the wage loss benefits to the worker
  • from the date that the written notice comes into effect
  • until the 14TH calendar day following that date, or
  • until the employer starts co operating again, whichever is earlier.
Full penalty-employer
If the non co operation continues beyond the 14TH calendar day following the date that the written notice comes into effect, the WSIB levies a penalty of
  • 100% of the cost of the wage loss benefits payable to the worker, plus
  • 100% of any costs associated with providing WT services to the worker.
The full penalty continues to be levied until the earliest of:
  • the date the employer starts co operating again
  • the date no further wage loss benefits are payable and no WT services are being provided, or
  • 12 months following the date that the written notice comes into effect.
Note: If the WSIB is notified that an employer has started co operating again, the WSIB stops the non co operation penalty on the day following the day that it is satisfied of the employer's renewed co operation.
Accommodation
All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship. This duty arises through the
  • obligation to re employ set out in the Workplace Safety and Insurance Act,1997(WSIA) the associated Construction Regulation, and/or
  • the Ontario Human Rights Code (the Code) or the Canadian Human Rights Act.
If a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the employer undue hardship, the employer must provide the accommodation. A worker's accommodation requirements may be temporary or permanent.
During the WR process, employers and, when relevant, unions and workers are expected to comply with human rights legislation and associated policies.
The Code guarantees equal access to employment opportunities to any person with a disability, whether such disability is work or non work related. Pursuant to the Code, if a person with a disability requires accommodation to perform the essential duties of a job, the employer must provide accommodation unless to do so would cause the employer undue hardship.
 To assist in determining undue hardship, the WSIB refers to the Ontario Human Rights Commission's Policy and Guidelines on Disability and the Duty to Accommodate. Since relevant human rights legislation also protects workers from discrimination on a number of grounds including disability, sex (pregnancy, gender identity), creed, ethnicity, family status and age, employers may have accommodation requirements during the WR process in addition to those related to the work related impairment. 

WSIB financial support for accommodation
In the case of small businesses, the WSIB will consider assistance with the costs of accommodation where the accommodation provides a long term solution to the worker's impairment and the accommodation would otherwise result in undue hardship.
Re-employment obligations
In addition to the co operation obligations cited above, non construction employers have an obligation to re employ their injured workers if the following three conditions are satisfied
  • the worker has been “unable to work” as a result of the work related injury/disease
  • the worker was continuously employed with the injury employer for at least one year before the date of injury, and
  • the employer regularly employs 20 or more workers.
1. Unable to work - A worker is considered unable to work if, because of the work related injury/disease, he or she
  • is absent from work, or
  • works less than regular hours, and/or
  • requires accommodated work that pays, or normally pays, less than his or her regular pay,
  • regardless of whether the employer reimburses the worker for an actual loss of earnings or not.
An employer's decision to pay advances is not relevant to whether a worker has been "unable to work."
NOTE: "Unable to work" does not include a worker who loses time/earnings from work because he or she must attend a health care appointment.

2. One year of continuous employment before the date of injury

Workers who are hired one year or more before the date of injury are considered to be continuously employed, unless the year was interrupted by a work cessation intended by the worker or the employer to break the employment relationship.

Generally, the WSIB finds that the following types of work cessation do not break the employment relationship:

  • strikes and lock outs
  • sabbaticals, sick leaves, parental leaves, leaves of absence, and vacations
  • work related injuries/diseases resulting in time off work
  • layoffs of less than three months, if the worker returns to work for the employer through an employer's offer of re employment at the time of layoff, or through a union hall's hiring process, or
  • layoffs of more than three months, if the recall date was stipulated, and the recall occurs.
  • With respect to seasonal workers, the WSIB decision maker reviews the past hiring practices of the employer to determine whether the employer intended to continuously employ the seasonal worker.
3. Employer regularly employs 20 or more workers
Generally, the number of workers employed by the injury employer on the date of injury is considered the number of workers regularly employed.
In cases where the employer has numerous geographically distinct plants or branches, or employs workers who work outside Ontario or outside of Canada, only workers whose earnings must be reported to the Ontario WSIB for premium purposes are included when determining the number of workers regularly employed.
With respect to employers in Schedule 2, the total number of workers employed in Ontario by a Schedule 2 employer on the date of injury is considered the number of workers regularly employed.

Re-employment obligation - worker fit for essential duties
When the worker is medically able to perform the essential duties of his or her pre injury employment, to comply with the re employment obligation, the employer is required to
offer to re employ the worker in the position that the worker held on the date of injury, or
offer to provide the worker with work of a nature and at earnings comparable to the worker's employment on the date of injury.

Re-employment obligation - worker fit for suitable work
When the worker is medically able to perform suitable work (although he or she is unable to perform the essential duties of his or her pre injury employment), to comply with the re employment obligation, the employer is required to offer the worker the first opportunity to accept suitable employment that may become available with the employer.
Ongoing nature of the re employment obligation
Because the re employment obligation is ongoing, the employer must offer the worker the job that is most similar in nature and earnings to the worker's pre injury job. This obligation applies every time a more similar job becomes available, throughout the period of the re employment obligation.
Duration of re-employment obligation
The employer is obligated to re employ until the earliest of:
  • the second anniversary of the date of injury
  • one year after the worker is medically able to perform the essential duties of his or her pre injury employment, or
  • the date on which the worker reaches 65 years of age.
NOTE: For information on re employment obligations applicable to the construction industry, see 19 05 02, Re employment Obligation in the Construction Industry—Threshold, Duration and Specific Employer Requirements.
Terminations within six months of re employment - presumption
When a worker is terminated within six months of being re employed, the WSIB presumes that the employer has not fulfilled the re employment obligation.
Workers who are terminated within six months of re employment have three months to ask the WSIB to investigate non compliance. If the request is made after three months, the WSIB is not required to investigate, but may choose to do so. The WSIB may investigate on its own initiative at any time.

Rebutting the presumption
Employers can rebut the presumption by showing that the termination within six months of re employment was not caused in any part by the work related injury or disease (and related absences from work), treatment for the work related injury or disease, or the claim for benefits.
Terminations either before re employment or more than six months after re employment
In cases where a termination occurs before a worker is re employed, or more than six months after re employment, (and the re employment obligation is still in effect), the WSIB does not presume that the employer has breached the re employment obligation. Instead, the WSIB examines the circumstances surrounding the termination to determine whether the termination was for reasons related to the work injury/disease (and related absences from work), treatment for the work related injury/disease, or the claim for benefits.

Fixed term contract workers
The employer of a fixed term contract worker is only required to re employ the worker in the pre injury job, comparable work, or suitable work, for the remainder of the fixed term employment contract that was interrupted by the work related injury/disease.
However, in cases where an employer has routinely extended or renewed a worker's fixed term employment contract in the past, with no actual break in employment, the WSIB may conclude that the re employment obligations contained in the WSIA extend beyond the end of the fixed term employment contract for the duration of the re employment obligation.

Worker severs the employment relationship
In cases where a re employment obligation exists, but the worker voluntarily quits his or her job, no further re employment obligation will generally apply.
Applying a re-employment penalty
Amount of the penalty
Generally, the WSIB levies a re employment penalty against the employer based on the worker's actual net average earnings (NAE) for the year before the injury. This amount is not subject to the ceiling used in the calculation of LOE benefits.
The penalty is applied from the date the written notice to the employer comes into effect, i.e., seven WSIB business days after the date of the written notice.
In cases where the employer has breached its obligation to re employ, the penalty may be reduced by:
  • 50% if the employer subsequently offers suitable work at no wage loss, or
  • 25% if the employer offers suitable work at a wage loss
where the employment is maintained for the remainder of the obligation period.

Apportioning the penalty
When applying a re employment penalty, the penalty is apportioned based on the length of the remaining obligation period at the time the breach occurs.
NOTE: For information on re employment penalties applicable to the construction industry, see 19 05 04, Re employment Penalties and Payments—Construction Industry.

Re-employment payments or loss of earnings benefits
It is anticipated that re employment payments or loss of earnings benefits paid to the worker will be offset by the re employment penalties levied against the employer.

A. Worker fit for essential duties (without accommodation)—calculating re employment payments

If a worker is medically able to perform the essential duties of the pre injury employment without accommodation, but the employer fails to re employ, the WSIB issues re employment payments to the worker, including interest (where appropriate), effective from the date the re employment obligation was breached.
Re employment payments are issued for up to one year, or the end of the re employment obligation (whichever comes first), if the worker has not returned to work with another employer, and is available for and co operates in appropriate WR services.
Re employment payments are equal to LOE benefits, i.e., 85% of a worker's pre injury NAE.

B. Worker only fit for accommodated or alternate suitable work—calculating loss of earnings benefits

If a worker is medically able to perform the essential duties of the pre injury job only with accommodation, or only able to perform suitable work, and the employer fails to re employ, the WSIB pays LOE benefits to the worker, including interest (where appropriate), effective from the date the re employment obligation was breached.
If the employer fails to offer any work, full LOE benefits are paid if the worker has not returned to work with another employer, and is available for and co operates in

  • health care measures, and
  • appropriate WR services
regardless of whether the services extend beyond the date the re employment obligation comes to an end.
Concurrent co-operation and re-employment obligations
If an employer breaches both a co operation and re employment obligation during overlapping periods in the same claim, the WSIB will apply a single penalty. In these cases, the WSIB will levy the higher penalty.
Ongoing co operation and re-employment obligations
If the employer breaches more than one co operation or re employment obligation at different periods in the same claim, the WSIB may levy more than one penalty.
Warning and notice of non-compliance
In those cases where the WSIB is considering making a finding of non co operation, or of a re employment breach, the WSIB first warns the workplace party about this possibility and the possible penalty. This is done verbally (where possible) and in writing.
If the WSIB determines that a penalty should be applied, before the penalty takes effect, the WSIB issues a notice informing the workplace party of the finding of non co operation or re employment breach and the WSIB's expectations for compliance.
Resolving workplace party disputes about job suitability
In all instances, workers and employers are encouraged to resolve disputes regarding the suitability of offered work through their own efforts and initiatives. However, when the workplace parties are not successful in resolving the dispute themselves, the WSIB will
  • assist the workplace parties to reach agreement on the issue, or
  • make a determination as to whether or not the offered work is suitable.
Note: A dispute over job suitability does not mean that the workplace parties are not being co operative in RTW activities.
Dispute resolution steps
In cases where the workplace parties cannot agree on whether an offered job is suitable, whether the worker has attempted to perform the offered job or not, the following steps should take place whenever reasonably possible
  1. The worker notifies the employer that the offered job is not suitable and provides reasons
  2. The employer considers the reasons, and through dialogue with the worker, considers further accommodations if appropriate
  3. In the event that agreement cannot be achieved, both workplace parties promptly notify the WSIB and provide all information relevant to the dispute, e.g., job descriptions, physical demands analyses, and/or functional abilities information.
Where offered job is found not to be suitable—maintaining wage loss benefits
In the event the WSIB determines that the offered job is not suitable, the WSIB continues to pay the worker full wage loss benefits as long as the worker continues to demonstrate co operation with the employer and the WSIB in the WR process.
Where offered job is found to be suitable—adjusting wage loss benefits
If the WSIB determines that the job offered is suitable, a finding is made that the worker is able to earn the earnings associated with the suitable job. The WSIB then verbally informs both parties of its decision adjusts the worker's wage loss benefits, and confirms its decision in writing.
The worker's wage loss benefits are adjusted by deducting the earnings associated with the suitable work from the pre injury earnings whether the worker has accepted the suitable job offer or not. The worker's wage loss benefits are generally adjusted as of the date of the worker's next available shift.
Special cases successor employers
The WSIB informs and educates the workplace parties about their obligations to co operate in the WR process, and all required WR activities, and supports them in the ways noted above.
In those cases where education and support have been provided to the workplace parties, but either or both of them refuses to co operate, the WSIB may

Application date
This policy applies to all decisions made on or after July 15, 2011.
Policy review schedule
This policy will be reviewed within five years of the application date.
Document history

This document replaces 19 02 02 dated July 15, 2011.

This policy was previously published as:

19 02 02 dated December 1, 2010

Document 19 02 02 dated December 1, 2010 replaced 19 02 03 dated October 12, 2004, 19 04 02 dated October 12, 2004, 19 04 03 dated January 5, 2009, 19 04 08 dated October 12, 2004, and 19 04 09 dated April 7, 2008.

References
Legislative Authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 21, 23, 33, 37, 40, 41, 42, 43, 44, 77, 86, 159(2)(h)
O. Reg. 35/08

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