WSIB - Non Cooperation Penalties

 Effective December 1, 2010, five interim WSIB Work Reintegration policies have been implemented.  One of the most important to workers is WSIB Board Policy 19-02-02.  This policy sets out the cooperation obligations and penalties for the workplace parties during the return to work / work transition (WT) processes. If either or both parties refuse to cooperate, the WSIB may reduce or suspend the worker’s benefits, and / or levy a penalty on the employer. The WSIB will need to be convinced, on a balance of probabilities, that a workplace party knew of his / her obligation, had the ability to carry that obligation out, and failed to do so, in order for a non-cooperation penalty to be applied


The WSIB non-cooperation policy states:
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.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 WT (work transition) activities, if the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB reduces the worker’s wage loss benefits to reflect the earnings of an experienced worker in the suitable occupation. The WT assessment and/or the WT plan may also be terminated.
 
These are not entry level wages but that of a fully experienced worker which will likely mean that no loss of earnings will be paid in the majority of cases. For example if a worker is being trained as a paralegal and fails to cooperate the workers benefits will be reduced to reflect the earnings of a fully experienced paralegal with is approximately $32.00 per hour.  So if the worker originally earned $18 per hour there would be no benefits paid by the Board.
 
The Wage loss benefits remain 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."
 
The use of the word "suspension" is significant.  Under section 66 of the Workplace Safety and Insurance Act, RSO 1997, c. 16. Sched A, if payments are suspended under the insurance plan, no compensation is payable in respect of the period of suspension.
For employers, the WSIB will levy an “initial penalty” of 50% of the cost of the worker’s loss of earnings (LOE) benefits from the date the written notice comes into effect (which is seven WSIB business days after the date of the WSIB’s written notice) until the 14th calendar day following that date, or until the employer starts cooperating again – whichever is earlier. If the employer’s non-cooperation continues beyond that 14th calendar day, the WSIB will levy a “full penalty” which is equal to 100% of the cost of the worker’s LOE, plus 100% of any costs associated with providing WT services to the worker.


I caution workers to meet with their employers, attempt to identify suitable work and if in an LMR continue to attend school.  It is very important to cooperate under these new policies.  It is too early to see how aggressively the Board will be applying these penalties and how far they will go to "force" employers to take workers back to work.  We have been that retraining is a last resort how these policies will play out remains to be seen.  In the interim cooperate so that your benefits are not jeopardized.