Ontario has new tools to prevent employers from illegally suppressing claims to the Workplace Safety and Insurance Board (WSIB), health and safety advocates attending a recent Partners in Prevention seminar in Mississauga, Ont. were told.
Claim Suppression is defined as an action taken by an employer with the intention to induce a worker not to report an injury or illness, under-report the severity of an illness or injury, or under-report lost time.
Claims specialist Laura Russell of the law firm Mathews, Dinsdale and Clark LLP said in an interview while the 2013 Prism report on the topic found claims suppression to be a recognized problem in the province, and identified statistics suggesting construction employers might be bigger offenders than others, the report was disappointing in that it was unable to definitively measure how widespread the problem was.
“There are enough bad examples that clearly some people are not getting it, but as far as it being rampant, and widespread and intentional, I don’t believe that. But there are some people who just don’t get it, and then there are some ones that are caught in a changeover with modernization,” she said.
It’s easy to see why firms suppress claims, said Russell — it’s like car insurance, drivers involved in a small fender bender will deal on the side of the road rather than face premium hikes.
Employers with a poor health and safety record will similarly have an incentive to under-report injuries at the expense of their employees’ health and safety, she stated.
Passed in 2015, Bill 109 formally created the offence of claim suppression, increased the WSIB’s investigatory mandate and created an administrative penalty for claims suppression.
Previously, the practice was monitored through the traditional WSIB Form 7, the Employer’s Report of Injury or Disease, where late, incomplete and false and misleading reports were subject to penalties, Russell explained.
Now, under section 22.1 of the Employment and Labour Statute Law, there are two streams of enforcement, with parallel administration and prosecution systems.
In January 2018 new penalties under administration came into effect as well as increased fines for claims suppression, Russell and fellow Mathews, Dinsdale and Clark claims specialist Julie Weller told the Partners in Prevention session attendees.
Actions such as threatening to dismiss a worker; disciplining or suspending a worker; and intimidating or coercing a worker with threats, promises or persuasion are specifically prohibited.
Russell gave a real-life example in which injured workers were transferred to the night shift.
“The basis apparently for that was it’s quieter on night shift so there is less production, less pace, less physicality, less stress,” she said. “But the problem is, nobody ever came back to day shift. So, it discouraged people from making the claim because they don’t want to go to night shift.”
Russell identified several reasons why accusatory fingers are generally pointed at the construction sector, even though the Prism report was largely inconclusive. Construction was disproportionately represented in files of offenders studied, which “may suggest a higher risk of claim suppression behaviour,” said the report, but it added, “the total number of files was not sufficiently large to draw a robust conclusion on industry patterns.”
Construction employers’ experiences using the CAD-7 program, which compares an expected accident cost and expected frequency count to the actual numbers, are pointed to as creating an incentive to suppress claims, Russell said, as are worker safety incentives in high-risk industries like construction — that creates worker on worker pressure, she said — and also supervisor production incentives.
The CAD-7 performance index is sometimes factored into eligibility to tender for construction projects, she said.
“The anecdotal evidence is that the construction industry, maybe because of the CAD-7 formula, is maybe more inclined to do it,” said Russell.
Initial monitoring of compliance with section 22.1 includes an education strategy, which is preferable in the early stages to prosecution, said Russell.
The WSIB has assembled a new team of auditors that will audit employers seen to be at high risk of suppressing claims. The WSIB identifies high-risk employers by considering factors such as having a high percentage of claims that were not established by Form 7, a high percentage of No Lost Time claims that had high health care costs, and a high percentage of claims that were reported late.
Weller and Russell offered delegates attending their seminar a list of suggestions for responding to an audit that included assigning a point person to interact with the WSIB auditor, fully complying with WSIB requests for a site visit and information and documents, and considering hiring external counsel to assist with the process.