INTERVIEW QUESTIONS - WORKERS' COMPENSATION COMPENSATION SERVICES ISSUES JURISDICTION: NEWFOUNDLAND I. COMPENSATION SERVICES ISSUES

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1 INTERVIEW QUESTIONS - WORKERS' COMPENSATION COMPENSATION SERVICES ISSUES JURISDICTION: NEWFOUNDLAND I. COMPENSATION SERVICES ISSUES 1. Is there a requirement, statutory or otherwise, requiring the regular review and potential readjustment of the rate of temporary wage loss benefit paid to an injured worker? If yes, what is the basis for adjusting the temporary wage loss benefit (i.e., a different basis for calculating the rate; a change in circumstances or level of disability)? And, are there any statistics or data regarding how often the rate is adjusted down or up? At thirteen weeks the "Temporary Earnings Loss" benefit rate is reviewed for the purpose of calculating an average annual earnings rate for the injured worker. The initial rate of "Temporary Earnings Loss" benefits is based on the last four pay periods only. At 13 weeks, the rate of "Temporary Earnings Loss" is based on the worker's "annual average earnings rate". If the last year was not indicative of the worker's normal earnings, the board can go back several years in order to determine an accurate average annual earnings rate for the worker. There are no statistics available on how often the rate is adjusted up or down. 2. Are permanent disability awards, both partial and total, subject to review and readjustment? For example, is there a requirement, statutory or otherwise, requiring the regular review and potential readjustment of the rate of permanent disability award? If yes, what is the basis for adjusting the award (i.e., a different basis for calculating the rate; a change in circumstances or level of disability)? And, are there any statistics or data regarding how often the rate is adjusted down or up? Extended Earnings Loss benefits are available to workers who can not earn as much after the injury as they earned before the injury. E.E.L. benefits are 80% of the difference between net income earned before the injury and the net income the worker is capable of earning after the injury. E.E.L. is reviewed annually and adjusted based on the CPI for Canada. Workers who have received a "Permanent Functional Impairment" award may request a reassessment of their level of impairment if their condition has deteriorated over time, but there is no set requirement for a review of PFI. 6/22/98 Page 1

2 There are no statistics on the frequency that the rate is adjusted up or down, but from an anecdotal perspective normally an adjustment in a permanent functional impairment award is for an increase in the award. 3. Is there any prohibition in the workers' compensation legislation in your jurisdiction against "topping up" (i.e. purchasing private disability insurance which provides income in addition to workers' compensation payment??) In 1993, a prohibition against the employers "topping up" injured workers benefits (generally as part of a collective agreement) was introduced. However, there are enforcement concerns with this prohibition. If the board is made aware that an employer is in contravention of this prohibition, the board will not reimburse the employer for any costs of the claim and will reduce the worker's compensation benefits accordingly. 4. What factors, if any, other than earnings, are used to determine workers' compensation benefits (for example what impact does age, marital status, number of dependents, retirement, education and training have on the calculation of benefits)? If the injured worker has a short employment history, the board will consider their education and training in establishing an average annual earnings rate. Otherwise, no factors other than earnings are considered in the determination of wage loss benefits. [Workers' compensation benefits are discontinued at age 65, unless the worker was 63 or over at the time of injury, in which case wage loss benefits may be paid up to two years from the date of injury. Wage loss benefits are offset against CPP and any employer sponsored pension plan]. 5. Is deeming used in either 1) setting the duration of temporary benefits or 2) as the basis for calculating permanent disability awards (where "deeming" means deeming a worker ready to return to work, and/or as capable of earning income at a particular income level, though the worker may not have actually returned to work or may be earning income at a lower level)? Deeming may be applied to establish a long-term or extended earnings loss benefits. For deeming to be applied, the worker must have reached a state of "maximum medical improvement" and have taken appropriate vocational rehabilitation. At this point, an occupation that exists in the province, and for which the worker is qualified and is capable of doing, will be identified for that worker. Human Resource Development Canada statistics on average entry level wages are then used to set the salary rate for that occupation. 6/22/98 Page 2

3 And if yes, what are the prerequisites for applying deeming? And, are there any statistics or data regarding the frequency with which deeming is used? The prerequisite for deeming is that the worker has the capacity to earn, but has no job. 6. Does the jurisdiction have an electronic claim files system in place? When was it introduced? What are the perceived advantages and disadvantages of electronic claims files? An imaging system was introduced in Some of the advantages are: - timeliness; - more than one staff person can access the file at the same time. Some disadvantages are: - difficult in working with lengthy, complex files on screen, - an insufficient indexing system. 7. Have any research or studies been undertaken on the adequacy of benefits provided by the jurisdiction? Any research or studies on the issue of equity of benefits? Are these studies available to the Royal Commission? No formal research or studies on the adequacy and equity of benefits have been undertaken. By statutory requirement, every 5 years, an inquiry of the Commission and its operations and the workers' compensation legislation must be undertaken. The latest inquiry (1997) recommended an increase in the rate of Temporary Earnings Loss Benefits from 75% to 80% of average weekly net earnings. This was in response to a call from injured workers that the 75% rate was inadequate. 8. Claims Statistics: How many claims are first paid in a year? Short term disability claims accepted (new claims): , , ,379 Number of Claims set up on Extended Earnings Loss not available /22/98 Page 3

4 How many claims are for occupational diseases? Not available. Is there any data available on the distribution of pensions - e.g., average size, range, etc.? Not available. II. ADJUDICATION 1. How would you describe the basic approach to adjudication in your jurisdiction (for example, inquiry based approach or adversarial)? Newfoundland uses an inquiry based approach to adjudication. After the in-take adjudicator makes the entitlement decision, the file is passed on to a case manager. 2. In your jurisdiction is the function of adjudicators, at the first stage, similar to an insurance adjuster? Each case is adjudicated on the basis of the specific facts respecting that case. There are guidelines to support the decision making in terms of highlighting important factors in the decision making process. 3. If new evidence is presented on a particular claim, is the claim sent back to the adjudicator for reconsideration? If new evidence is presented that is specific to the original entitlement decision the file would be returned to the original or in-take adjudicator for reconsideration. However, new information affecting a claim may, depending upon the nature of the new information, be dealt with in the case management process if a case manager has had charge of the file for a considerable period of time. 4. Are board policies binding on adjudicators? To what extent are adjudicators entitled to exercise discretion? Is discretion applied by an initial claims adjudicator reviewable? A policy of the board is binding on adjudicators. However, generally policies are in the nature of guidelines providing for the exercise of discretion and judgement on the part of adjudicators and board decision makers. (For example, an adjudicator can use discretion as to whether they go back one, two or even three years in the determination of a claimant's annual average earnings.) 6/22/98 Page 4

5 What, if any, mechanisms are in place to promote consistency in decision making? The board has recently introduced a "case-conferencing" process to examine and review difficult cases. In-take adjudicators and medical and legal advisors participate. Deliberations and decisions are written up for the record and future reference. The view is that case conferencing is time-consuming but useful. 5. Do workers and employers have access to their information in board files? If yes, is this because of a provision in the workers' compensation legislation or a result of the Freedom of Information and Protection of Privacy Act? Is further information found in sub-files that do not form part of the claim file? And if so, are the sub-files disclosed? Is relevancy of material in a board file a prerequisite to its disclosure to the affected worker or employer? If so, who determines whether the information is relevant and on what basis? Does the worker or employer have the right to object to the relevancy of the information after it has been disclosed? Under the workers' compensation legislation, an injured worker has access to all information in his or her claim file. Information on an unsubstantiated complaint, legal opinions and advice on third party claims and administrative information (i.e., overpayments) if any, are not included in the claim file provided to the worker. The employer does not automatically have access to information in a workers' claim file. If the claim is subject to review or appeal, the employer may request information from the worker's file and the manager of the internal review area will make a determination as to what information is relevant to the employer and provide the employer with only that information. An employer may object to the level of information provided to them and may appeal this to the Workers' Compensation Review Division. 6. Is there any "informal" review process for workers and employers regarding claims adjudication or assessment decisions (i.e. review by supervisor or manager prior to the formal internal reconsideration or review process and external appeal process, if any)? No. If yes, are there any statistics available on the total number of issues reviewed and the allow/disallow rate for this informal review process (are there any statistics kept on the number of issues reviewed, and the allow/disallow rate broken down by type of issue - for example, assessment decisions, compensability, level of benefits)? Not applicable. 6/22/98 Page 5

6 7. Is there a formal "complaints" review process in your jurisdiction, distinct form any internal review or external appeals process, to deal with complaints from clients of the board regarding the conduct of board officers and staff or service issues? If yes, is this process independent of the board? There is no formal "complaints" review process. However, in the 1997 statutory review inquiry of the Commission and the workers' compensation legislation, the issue of an independent "complaints" process, separate and distinct from the appeal process, was proposed for consideration in representations made to the inquiry. The inquiry did not make a recommendation about the establishment of an independent "complaints" body or process. However, the Commission recently hired an external firm to undertake a service quality survey of case managers. Telephone interviews were conducted with clients of each case manager (60% of each case managers caseload) to determine the level of service quality being provided by that individual. The goal is to develop some "best practice" guidelines for the conduct and approach to be used by case managers. It was clarified with employees that there would be no performance action taken as a result of this survey, but that subsequent surveys will be undertaken and performance monitoring of individuals implemented as a result. Staff response to the survey was mixed: some welcomed the survey to "clear the air"; others were concerned about how the results would be interpreted and used. 6/22/98 Page 6