Canadian Occupational Safety

14 Canadian Occupational Safety www.cos-mag.com WcB taking new view on modifi ed work Alberta employers' experience ratings may suffer even when employee is at fault A modifi ed work program has long been a very useful tool for employers to reduce the impact of workplace injuries on operations and to limit the occurrence of lost-time injuries. An injured worker who is unable to return to his previous tasks can commence duties that are consistent with any medical restrictions. Often, it is also beneficial to the worker because he is fully compensated instead of receiving a reduced economic loss payment (ELP) from the workers' compensation board (WCB). But problems can arise where the modifi ed work program comes to an end while the injured worker is still engaged in it. When an employer stops being able to offer modifi ed work, the WCB will assess the worker for temporary disability benefi ts and some sort of ELP will be issued. Things become less clear in circumstances where the modifi ed work ceases to be available because of the actions of the employee. For example, a fairly common side effect of modifi ed work programs is that they encourage a certain "relaxed" work ethic that would otherwise be unacceptable in the worker's normal position. Employers often complain that workers engaged in modifi ed work will not do a good job, work slowly, complain too often, take too many breaks or simply fail to show up at all. This may result in termina- tion of the employment relationship for just cause. It is at this confl ict point, where the Alberta WCB is now starting to re-interpret its policies, which will undoubtedly have a signifi cant impact and may affect how other provinces' WCB regimes will start administering their benefi ts. The WCB's past approach to this issue was as follows: First, the WCB would consider the reason for why the modifi ed work program came to an end. In the event that the employee removed himself from modifi ed work, either as a result of a resignation or termination, the WCB would cease payment of any sort of ELP on the basis that the modifi ed work came to an end due to "circumstances within the employee's control." Such an interpretation fl ows nat- urally from the provisions of the Workers' Compensation Act, which state, in part, where a worker refuses modifi ed work, the WCB would assess his compensation entitlement under the act as though the worker had accepted the modifi ed work. As such, the WCB considered it fair that a worker who could mitigate claims cost by accepting reasonable modifi ed work could not unilaterally choose to forego that work and collect WCB benefi ts instead. For example, an employee who, as a result of her own misconduct (such as failing to show up for modifi ed work or acting unsafely) was removed from modifi ed work is disentitled to WCB benefi ts — presumably, the idea being that the employee has, by virtue of her mis- conduct, "refused" the modifi ed work. This interpretation resulted in a long line of WCB Appeals Commis- sion cases where no further claims costs as a result of ELPs were allowed under this interpretation. This, in turn, allowed employers the relative freedom to make termination deci- sions where signifi cant performance concerns arose, without regard to what impact this would have on their WCB experience rating. 'NO FAULT' PRINCIPLE This "worker accountability" approach is no longer the WCB's preferred interpretation. Employers are now faced with WCB decisions at the case management level and with the Dispute Resolution and Decision Review Body, which impart the "no-fault" principle underlying the workers' compensation regime. The WCB's position on these claims now is that when the employer has severed the employer-employee rela- tionship, the modifi ed work program is no longer available due to the ter- mination of employment, rather than due to the worker refusing to partici- pate in the program. As a result, ELPs continue to be payable as long as the employee remains willing to engage in modifi ed work (notwithstanding its availability). This means that where an employee is at fault for the cessation of modifi ed work, the no-fault scheme of the act will come to his aid and the employer is left collecting the claims costs on its experience rating. It is noteworthy that the WCB has not expressly changed its policies in this regard — this is merely a shift in interpretation. But it is one that is fraught with diffi culty. Primarily, it is questionable whether the no-fault principle is properly imported into the administration of benefi ts at all. Historically, the concept of no fault was used to address issues of access to the regime, such as to decide who was a "worker" under the act. No defi nitive answer to this ques- tion is yet available, but proceedings are underway at the Alberta Court of Queen's Bench, which will hopefully provide clarity. Should the WCB's new interpretation be supported, WCB regimes in other provinces may take another look at how they administer benefi ts, and there is a risk that the no- fault principle may fi nd its way into the administration of benefi ts as well. In the meantime, employers need to be aware this new interpretation raises important considerations and issues with respect to their modifi ed work programs. For instance, the new interpretation forces employers to weigh the unac- ceptable consequences of incurring a lost-time claim, or other WCB account cost consequences, against the pros- pect of continuing the employment of a worker who may present a safety risk or who has undermined the employ- ment relationship through other misconduct. One also has to question whether this interpretation ultimately provides an incentive to workers to terminate their modified work assignments since there appears to be no real con- sequences to doing so. Maurice Dransfeld is a lawyer in the Edmonton offi ce of McLennan Ross who provides advice to employers on a variety of labour and employment issues. He can be reached at mdransfeld@mross. com or (780) 482-9223. PEOPLE&PLACES MAURICE DRANSFELD WORKERS' COMPENSATION PEOPLE&PLACES MAURICE DRANSFELD WORKERS' PEOPLE&PLACES WORKERS' PEOPLE&PLACES IT'S A BIG, CLEAN DEAL. Deb and Stoko, two great skin care companies, have joined forces. 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