WCB Procedures

Duty to cooperate - Archived Jul 4, 2023

Procedure summary

Published On

Mar 7, 2023

Purpose

To assist workers and employers in understanding and meeting their duty to cooperate in working toward a successful return-to-work outcome, and guide WCB-Alberta (WCB) decision makers in applying the duty-to-cooperate policy, including determining consequences for not cooperating.

Description

The decision maker negotiates modified work and other return-to-work services. They provide support to the worker in their journey to recovery and return to work.

The decision maker further educates both workers and employers regarding their duty to cooperate and the potential consequences when they are not cooperating. They explore any barriers that may be preventing either stakeholder from cooperating, and work with them to resolve those barriers in a way that ensures the worker’s and employer’s needs are met.

When all attempts have been exhausted and a worker or employer still refuses to cooperate, the decision maker ensures the appropriate consequences are implemented.

Key information

The effective date of this procedure is April 1, 2021, and it applies to all claims regardless of the date of accident.

To meet their duty to cooperate, both employers and workers are expected to make reasonable efforts to cooperate with WCB and other parties to achieve a safe return to work as early as possible. Regular communication and joint problem solving are fundamental expectations for a successful return to work. WCB will work with workers and employers to help them understand their cooperation responsibilities. Working together creates shared understanding of the work injury, treatment, recovery and return to work. WCB will work to create plans and find solutions to help the worker and employer meet their duty to cooperate. Refer to Policy 04-11, Part II, Application 1, Question #4 [PDF, 0.24MB] for the specific cooperation responsibilities for the worker and employer.

There may be valid reasons that affect the worker’s ability to participate in return-to-work plans for a period of time (e.g., illness or family emergency). Some employers may not be able to provide modified work or other work opportunities because of the size of their business, the nature of their operations, or other factors. It is not a failure to cooperate when the worker or employer has a good reason and is acting in good faith and WCB does not apply penalties in such circumstances. When there are valid reasons preventing the worker or employer from meeting their cooperation expectations, it is important they contact WCB and explain the situation.

When the worker does not have a valid reason for not cooperating, the worker’s benefits may be either reduced or suspended in keeping with the relevant sections of the Workers’ Compensation Act (WCA) Sections 38, 39, 54 and 89.3 and Policy 04 -11 Part 1 and Part II. In the same spirit, administrative penalties may be applied to employers who decline to cooperate.

Effective January 1, 2021, WCB may suspend or reduce benefits to the worker if the employer has withdrawn modified duties because of a worker’s egregious conductThe worker’s conduct must be outstandingly or flagrantly bad to a reasonable person to be considered egregious (for example, an intentional act the worker knew to be dangerous or might put others in danger).. See Egregious Conduct for more details.

The following are examples of a worker failing to cooperate or participate in their recovery and return to work plan:

The worker has a pattern of not returning calls, attending treatment or providing required information, or is otherwise not acting in good faith.
The worker refuses, stops or is not fully participating in modified duties or in re-employment services including retraining and job search.
The worker is not providing the information required to determine a re-employment plan.

The following are examples of an employer failing to cooperate or participate in the worker’s recovery and return to work plan:

The employer prevents the worker from attending treatments or other required services or otherwise does not cooperate with the worker’s return-to-work plan.
The employer demonstrates a pattern of being unreachable, not providing required information, withholding or providing false information.
The employer underpays the worker.
The employer refuses to provide modified duties without a valid business reason.

Assist the worker if there are cooperation concerns

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1. Call the worker and discuss their duty to cooperate Explore the worker’s reason(s) for not cooperating. Try to resolve any barriers that may be preventing them from cooperating. Consider offering support and solutions (such as counselling, community support, etc.) to overcome the barriers. Explain their duty to cooperate with their return-to-work plan and find out why they are not able to fulfil it. Explain that their benefits may be reduced or suspended if: They do not have a valid reason for not cooperating, or The barriers can be resolved but the worker declines to cooperate or participate. In either of the situations described above, discuss the Alternative Dispute ResolutionThis is a voluntary meeting where a worker or employer can work with the WCB toward a collaborative resolution when they disagree with claim decisions. It is facilitated by a Resolution Specialist with the goal of assisting all parties to better understand process and ask if they would like to participate. If the worker agrees, arrange for the service.	Administrative tasks Add a file note (Cooperation/Egregious Conduct) documenting the conversation, including: The duty to cooperate discussion The specific reasons why the worker is not able to cooperate. Include any solutions presented to remove barriers
2. Determine whether the worker has a valid reason for declining to cooperate and action accordingly Determine, based on information collected through discussion(s) with the worker, whether they have a valid reason for declining to cooperate, and the impact and next steps of that decision. Valid reason for declining to cooperate/participate Circumstances outside the worker’s control such as illness or a family emergency may be considered valid reasons for declining to cooperate. When the worker has a valid reason for declining modified work, continue to manage the claim and end this procedure. When the worker has a valid reason for declining re-employment services, action the claim as follows: Discuss the re-employment plan with the worker and agree on how service(s) will be completed in the future. Review the worker’s eligibility for a wage loss supplement and determine whether a job option has been identified. If a job option has not been identified, refer for a job option report to identify a job option and lead. If a job option has been identified but there is no job lead, request a job lead. If the worker was in supported job search but has not finished their 16 weeks of job search, estimate their earnings based on the job option and lead identified. Prepare the wage loss proposal and obtain approval from the supervisor. To avoid a delay in benefits when a job option and/or job lead needs to be obtained, a Temporary Partial Disability (TPD) based on minimum wage can be paid while waiting for a job option and/or job lead to be found. If a job option and lead are identified, the TPD can be adjusted to reflect the salary of the new position. If a job option and/or job lead cannot be identified, the TPD can be adjusted to reflect that there is no suitable or accessible job identified. No valid reason for declining to cooperate/ participate Send the appropriate letter explaining how the worker is not meeting their cooperation responsibilities. Confirm if the duty-to-cooperate decision was previously communicated in writing. Consider if it was included in a previous fit for work decision letter. If it was, a warning letter is not required as the worker has already been advised of the duty to cooperate decision. If it was not communicated or there is a new cooperation issue, send the appropriate warning letter (for example, a fitness-for-work letter was sent when the worker previously agreed to participate and is now declining to participate).	Administrative tasks Add a file note (Cooperation/Egregious Conduct) documenting the conversation. Include whether the worker agrees/does not agree to participate in the return-to-work plan and whether their reason to decline is valid, if applicable. Follow the appropriate procedure for the claim circumstance(s): Modified Work Re-employment Services
3. Follow up with the worker Call the worker one week after the date of the warning or fit for work letter to determine if the worker is now able to cooperate with the return-to-work plan. If the worker agrees to cooperate discuss what is expected of them and what steps need to be taken to address any barriers. Explain there will be no change in their benefits as long as they continue to cooperate. Document the discussion and the outcome of the discussion in a file note and end this procedure. If the worker declines to cooperate explain the potential impact to their benefits and try to resolve any barriers or issues preventing them from cooperating. Document the discussion (or lack of contact if the worker cannot be reached) and send the recommendation to reduce or suspend benefits to the supervisor. Monitor the claim for the supervisor’s response. If the request is: Not approved, call the worker to discuss the alternatives recommended by the supervisor. Advise the worker of the consequence if they reject the alternatives presented (that is, suspension or reduction of benefits). Document the details of conversation in a file note. Approved, proceed to the next step.	Administrative tasks Add a file note (Cooperation/Egregious Conduct) documenting the conversation. Complete the Duty to Cooperate/Egregious Conduct screen. If the worker did not agree to cooperate include the explanation provided to the worker regarding the consequences of choosing not to cooperate (such as suspension of benefits, what will happen if they decide to cooperate at a later date, etc.).
4. Communicate the decision and adjust benefits Adjust benefits in accordance with the decision (see below) and send the appropriate letter to communicate the decision. Suspend or reduce benefits effective the date of the decision letter. Confirm that no benefits have been requested beyond the suspension date. Temporary total or partial disability (TD01 and TD02) benefits Determine if the worker would have made a full recovery or if permanent work restrictions were anticipated had they participated in the recommended treatment and care plan. Send the appropriate letter (unless a previous fit for-work letter was sent in Step 2 which communicated the duty to cooperate decision) communicating the change in benefits. If: The worker was expected to make a full recovery And benefits are not being paid, inactivate the claim. And temporary total partial disability (TD-02) benefits are being paid, continue to manage the claim. Permanent work restrictions have been confirmed, obtain approval for a new TPD benefit and send the appropriate letter. Note: A job lead is not required. Permanent work restrictions cannot be confirmed due to the worker’s non-cooperation, inactivate the claim until the worker decides that they will participate in the services necessary to confirm permanent work restrictions. Transfer to a case assistant to monitor if participation is anticipated; otherwise inactivate the claim. When a wage loss is payable because benefits will be reduced (for example, TPD), create a separate file note for the proposal. Re-employment (VR) benefits When the worker was in receipt of VR benefits send the appropriate letter. Review the claim to determine entitlement to a wage loss supplement: Review the claim. If the worker did not provide enough information to develop a re-employment plan, review the worker's other claims. Determine if there is a job option that pays more than minimum wage or sufficient information about the worker’s vocational background to proceed with a job option report. If there is no job option identified but sufficient information about the worker’s vocational background, request a job option report. If a re-employment plan was developed which included retraining, confirm this job option is the most cost effective to recover the worker’s income. Obtain approval for a TPD benefit that may be paid for up to one year based on the best job option. Note: The TPD benefit can temporarily be based on minimum wage until the job option report has been received to avoid a delay in paying benefits to the worker (i.e., minimum wage TPD until the job option report is completed). The TPD can be adjusted as required based on the job option found. If the worker continues to decline re-employment services beyond that time, consider converting the TPD to a permanent wage loss supplement. A job option and job lead are not required when applying duty to cooperate. When a job option has been identified that pays more than minimum wage, use it to estimate the earnings. When no job option has been identified, use minimum wage to estimate earnings. Consider if a transfer to the case assistant is appropriate.	Administrative tasks Send the appropriate letter: Suspend or Reduce TD Benefits (CL047H) Suspend or Reduce RE Benefits (CL047J) Delete or modify unissued payments as required. Obtain a medical opinion from the treatment provider or internal consultant on their recovery or permanent work restrictions, had they participated in the treatment. Follow the Re-employment Services procedure.
5. Assist a worker who reconsiders and agrees to cooperate If the worker decides to cooperate after a benefit suspension or reduction has been implemented, discuss what is expected of them and review the return-to-work plan. Refer for additional services, as appropriate (e.g., medical, re-employment, supported job search, etc.). When the worker declined temporary modified work and the employer terminates worker’s employment before they are fit for full duties, full wage loss benefits are payable (unless the termination was due to egregious conduct). When the worker declined permanent accommodation, investigate whether the job is available in the job market and consider appropriate entitlement. Send the appropriate letter explaining the circumstances surrounding the reinstatement of benefits and that if the situation arises again a warning letter will not be required to resuspend benefits. Note that benefits are reinstated effective the date they start cooperating. Do not issue retroactive wage loss benefits unless the worker is able to provide information which supports a valid reason why they were not able to cooperate within one week of sending the letter described in Step 4.	Administrative tasks Add a file note (Cooperation/Egregious Conduct) documenting the conversation and the: Reason for the recommendation to reinstate benefits. Solutions provided to remove any barriers that the worker may have interfered in the duty to cooperate with the outcome of the attempts for resolution. Start date of the reinstatement of benefits and the conditions the worker will need to meet for benefits to continue. The Duty to Cooperate screen does not need to be updated. Send the appropriate Claimant Custom (CL000A) letter.

Assist the employer

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1. Call the employer and discuss their duty to cooperate Confirm that all attempts have been made to negotiate modified work including obtaining assistance from the industry specialist. Ensure all options for modified work have been exhausted. Call the employer and educate them about the duty to cooperate with the return-to-work plan. Explore why they are not able to fulfill the cooperation expectations and try to resolve any barriers that may be preventing them from cooperating. If the worker’s employment was terminated, request the employer provide evidence of the business reason (for example, the company policy that was violated, confirmation that the worker was aware of the policy, and information to support that the policy has been applied consistently in the past). Review the duty to cooperate expectations again. If the employer agrees to cooperate, discuss expectations and next steps. Contact the worker to advise them of the employer’s decision and document the conversation in a file note. Continue to manage the claim and end this procedure. If the employer cannot be reached, send the appropriate letter. If the employer reports that: The worker was terminated due to egregious conduct, document the conversation and follow the Egregious Conduct procedure. The worker was terminated for a valid business reason and was acting in good faithIn this situation there is no duty-to-cooperate penalty to the employer., document the conversation and continue to provide re-employment services to the worker.	Administrative tasks Add a file note (Cooperation/Egregious Conduct) documenting the conversation, including: The conversation regarding the duty to cooperate The specific reasons why the employer is not able to cooperate/participate. Update the eCO Employment screen, Job Status and Employment End fields. Follow the appropriate procedure for the claim circumstance(s): Egregious conduct Modified work Re-employment services
2. Request approval to refer the file to an industry specialist Request approval from a supervisor to refer the file to an industry specialistThere is no impact to the worker’s benefits and services unless their employment was terminated due to egregious conduct. if the employer: Demonstrates a pattern of being unreachable or not providing required information. Withholds or provides false information. Prevents the worker from attending treatments or other required services or otherwise does not cooperate with the worker’s return-to-work plan. Underpays the worker. Refuses to provide modified duties without a valid business reason. Cannot satisfactorily demonstrate that the worker was terminated for a valid business reason or egregious conduct. Monitor for the supervisor’s response. Review and action the supervisor’s recommendation(s) when available. If the supervisor did not approve the referral, call the employer to discuss the supervisor’s recommendations, if appropriate. Advise the employer of the consequences if they continue not to cooperate (a potential financial penalty) and send the appropriate letter. If the employer has decided to cooperate go to Step 4. If the employer continues to not meet their cooperation requirement, resubmit your recommendations to the supervisor for a referral to Industry Support. If the supervisor approves the referral to Industry Support, call the employer to advise a referral has been sent to Industry Support and to ensure they have all the information and support needed to make an informed decision. Make the referral and send the appropriate letter advising the employer that they are not meeting their duty to cooperate and that the file has been referred to an industry specialist. Note: The industry specialist will complete a review, attempt to contact and educate the employer about duty to cooperate, discuss modified work duties or gather information related to terminations to help the employer meet their duty to cooperate.	Administrative tasks Complete the Employer Duty to Cooperate template. Copy it into a file note (Cooperation/Egregious Conduct) and send it to a supervisor to request approval to refer to an industry specialist. Send the D2C Proceeding (IN074A) letter explaining why the employer did not meet their duty to cooperate requirements and what action(s) is needed to meet duty to cooperate. Complete the Industry Specialist Referral (FM555J) form from the eCO Create Referral screen.
3. Review the results of the industry specialist’s investigation Continue to manage the claim and provide benefits and services to the worker as appropriate. If the employer has agreed to participate and meet their duty to cooperate, the industry specialist will monitor the file until the employer undertakes the required action(s). If the employer is unresponsive or continues to not meet their duty to cooperate the industry specialist will refer the claim to Claims Audit for penalty consideration. Claims Audit will review the claim for the appropriate approvals and recommendations and attempt to engage the employer. If required, they will determine a financial penalty, advise the employer of the decision and send a letter communicating the decision prior to applying the penalty. If the worker has been terminated and the employer continues to decline to cooperate, contact the worker regarding the change in their employment status.	Administrative tasks There are no administrative tasks for this step.
4. Assist an employer that has reconsidered Negotiate modified duties if the employer later decides to offer modified work. If an employer that has terminated the worker's employment, later decides to reinstate employmentThe worker is not obligated to accept an offer of employment from an employer who has previously terminated their employment., negotiate modified duties. If the termination was not in good faith and there was a previous referral to the industry specialist, advise the industry specialist that the employer has decided to reinstate employment.	Administrative tasks Follow the Modified work procedure.

Supporting references

Policies

Workers’ Compensation Act

Applicable Sections

Sections 32 – Notice by worker
Sections 33 – Notice by employer
Sections 34 – Report by physician
Sections 38 – Medical examination and investigation
Sections 39 – Employer may require medical examinations
Sections 40 – Board may require autopsy
Sections 54 – Reduction or suspension of compensation
Sections 56 (13)–(15.1) – Compensation for disability
Sections 89 – Board to provide vocational and rehabilitation services
Sections 152 (1) – Offence

Workers' Compensation Regulation

Applicable Sections

Compatibility Warning

WCB Procedures

Duty to cooperate - Archived Jul 4, 2023

Procedure summary

Assist the worker if there are cooperation concerns

Administrative tasks

Administrative tasks

Administrative tasks

Administrative tasks

Administrative tasks

Assist the employer

Administrative tasks

Administrative tasks

Administrative tasks

Administrative tasks

Supporting references

Policies

Workers’ Compensation Act

Workers' Compensation Regulation

Related Legislation