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.

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, a family emergency or incarceration may be considered valid reasons for declining to cooperate. A job option and job lead are required to implement a wage loss when a valid reason is identified. 

When the worker has a valid reason for declining re-employment services, action the claim as follows:

1. Discuss the re-employment plan with the worker and agree on how service(s) will be completed in the future.
2. 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 12 weeks of job search, estimate their earnings based on the job option and lead identified.
3. Prepare the wage loss proposal and obtain approval from the supervisor. 

Note: To avoid a delay in benefits while waiting for a job option and/or job lead, a Temporary Partial Disability (TPD) based on minimum wage can be paid. Once a job option and/or job lead are identified, the TPD is adjusted to reflect the salary of the job option or job lead (if required). If a job option and/or job lead cannot be identified, the TPD is adjusted to reflect that there is no suitable or accessible job identified. The TPD will not remain based on minimum wage unless the job option and/or lead starts at minimum wage. 

When the worker has a valid reason for declining modified work or is unable to continue with their care plan, continue to manage the claim and end this procedure.

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).

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.

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.

To determine entitlement to a wage loss supplement, identify if a job option is available. In all cases, the decision maker should attempt to identify a job option to estimate earnings before using minimum wage for a wage loss. A job lead is not required when applying duty to cooperate. The initial wage loss proposal is normally a Temporary Partial Disability (TPD) benefit. 

Consider the following for the wage loss:

1. If a re-employment plan was previously developed with a job option, confirm if the job option is the most cost effective to recover the worker’s income. This can include a retraining option, if there is evidence to support the worker would have been successful in the training. If there is a job option, proceed with a wage loss proposal for up to 12 months, if not, request a job option report.
2. If the worker did not provide enough information to develop a re-employment plan, review the worker's other claims to determine if there is a job option or sufficient information about the worker’s vocational background to identify a job option. If there is a job option, confirm if it is the most cost effective to recover the worker's income and proceed with a wage loss proposal for up to 12 months. If there is not a job option, but sufficient information about the worker’s vocational background, request a job option report.
    
   • To avoid a delay in benefits while waiting for a job option report, a Temporary Partial Disability (TPD) based on minimum wage can be paid. If a job option is identified, the TPD is adjusted to reflect the salary of the job option. If a job option cannot be identified, the TPD is based on minimum wage.
   • When there is not enough information to refer for a job option report, document the rationale in a file note and use minimum wage to estimate earnings.
   • If the worker continues to decline re-employment services after 12 months, it may be appropriate to convert the TPD to a permanent wage loss. A job lead is not required to convert to a permanent wage loss.
   • If there is a concern the worker may be working, consider sending a letter to the worker requesting contact and further information and advise the TPD may be placed on hold if they do not respond.

Consider if a transfer to the case assistant is appropriate.

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). If the employer offers to reinstate modified duties after the worker has been terminated, regardless of whether the termination was valid or not (except when the termination is due to egregious conduct), the worker does not have a duty to cooperate. WCB may not suspend/reduce a worker’s wage loss benefit if they choose not to accept the modified work as the employer has severed the employment relationship with the termination.

Layoffs, job abandonment or a worker quitting their job would not be considered a termination. In these cases, it may be reasonable to consider applying duty to cooperate if the worker declines an offer of suitable modified duties.

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.