Canadian Occupational Safety

February/March 2016 11 DAVID MARCHIONE PEOPLE&PLACES WORKERS' COMPENSATION DAVID MARCHIONE PEOPLE&PLACES To report or not to report Improperly following reporting requirements can lead to penalties E mployers often question whether or not they are required to report an injury or illness to their workers' compensation board. Not surprisingly, those questions do not arise from the more obvious types of claims. They generally come about when a worker reports a more contentious issue, such as a gradual onset type of injury, or a condition that could have arisen outside of the workplace. However, the real issue is not whether the worker has sustained an injury or developed an illness or condition, it is whether it is work-related. While an employer may dispute whether an injury or illness is work- related (or compensable), employers should not self-adjudicate claims as there are potential penalties associ- ated with doing so. Failure to report an injury to the workers' compensa- tion board within the legislated time limits can also result in penalties. Reporting requirements to the compensation boards vary among jurisdictions, and employers should become familiar with the reporting requirements in each province or ter- ritory in which they operate. Reporting to the compensation board is separate and apart from any other report that may be required by a health and safety regulator. While some jurisdictions require reports within three days (or 72 hours), others allow up to fi ve busi- ness days. Each jurisdiction may also have specifi c criteria that sets out when a report is required, including whether or not the worker lost time from work or whether she required health-care treatment, and have a specifi c form the employer needs to complete. Generally, the duty to report begins when an employer becomes aware of the injury or illness. That awareness may take many forms. The employer may be advised by the injured or ill worker or by another party, such as the worker's physician or the com- pensation board. In any case, the employer's duty begins upon becom- ing aware of the injury or injury report. Workers must be trained to report all injuries and illnesses immediately. Further, supervisors must be trained to ensure injury and illness reports are completed in a timely manner. Super- visors may or may not be responsible for completing the required form for the compensation board. If they are not, they must forward the necessary information to the person respon- sible for external reporting to the compensation board as soon as pos- sible to avoid any potential late fi ling penalties. A good rule of thumb for employers is if a supervisor is aware of the injury, that means the employer is aware, so the duty to report exists. The employer's report of injury is an integral part of the claim review, assessment and management process. Because timely reporting is so impor- tant, penalties exist for those employers that do not report in a timely manner or at all. Penalties vary by jurisdic- tion and may include administrative fi nes, having the entire cost of a claim assessed against the employer or pros- ecution. Prosecutions have occurred when there was a pattern of late or non-reporting. Employers may also be prosecuted for providing false informa- tion, such as reporting that a worker did not lose time from work when she was absent due to the injury. When making a report to a compen- sation board, it is important for the employer to provide as much infor- mation as possible. The report should confi rm: • the facts surrounding how the inci- dent, injury or illness occurred • whether there was any delay in reporting to the employer • whether there was any delay in seek- ing medical attention • whether there were any witnesses • whether the worker reported the injury or illness to a colleague or co- worker and when he did so • whether the worker has had any prior similar claims. If the employer has any concerns about whether the injury or illness is work-related, that information should be conveyed to the compensation board at the time of initial reporting. Ultimately, the decision as to whether or not an injury or illness is compensa- ble lies with the compensation board. However, the employer does have the right to appeal any adverse decision. David Marchione is an occupational health and safety consultant and paralegal at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-3463 or dmarchione@fasken.com. 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