Egregious conduct - Archived Jan 24, 2024

Call the employer to explore why the modified work was suspended or terminated. If the employer is alleging egregious conduct, be sure to obtain all information needed to determine whether the worker's conduct was egregious.

Request any documentation available regarding the conduct, the employer’s disciplinary process and the suspension or termination. Gather a detailed timeline of events to help determine if modified work was performed and if egregious conduct is a factor to consider.

Educate the employer about the egregious conduct policyPolicy 04-05, Part II, Application 4. [PDF, 0.24MB] and investigation process. Explain:

• That egregious conduct does not apply if the worker was not performing modified duties at the time of the behaviour.
• That egregious conduct does not include all bad or wrong behaviour; termination for cause may be appropriate disciplinary action but is not in and of itself proof of egregious conduct.
• That financial consequences to the worker are only triggered if their conduct meets the definition of egregious conduct.Conduct that is “flagrantly bad” or “staggeringly bad, or obviously wrong, beyond any reasonable degree.
• What benefits to the worker may be impacted if the conduct is considered egregious.

If the employer terminated the worker and an investigation into the possibility of egregious conduct is required, WCB will place the worker on full wage loss benefits, as required by Section 56(14).

If the employer temporarily suspends the worker, confirm that the suspension is part of the employer's normal disciplinary process. If the suspension is part of the employer's normal disciplinary process, the temporary suspension is not considered a withdrawal of modified work. Benefits are paid as if the worker participated in the modified work. Refer to Policy 04-05, Part II, Application 4, Question 8.

In cases where modified work was not offered before a suspension or the worker was not performing modified work at the time of the egregious behaviour, go to the Duty to Cooperate procedure to determine entitlement to benefits.

Once an egregious conduct decision has been made which confirms the employer withdrew or terminated modified work because of the worker’s egregious conduct, Section 56 (14) does not apply. WCB pays benefits in accordance with Section 56(13)(a), as if the worker was continuing to work.

Call the worker to explore their perspective of why their modified work was suspended or terminated.

Educate the worker about the egregious conduct policyPolicy 04-05, Part II, Application 4. [PDF, 0.24MB] and investigation process.
Explain:

• That egregious conduct does not apply if the worker was not performing modified duties at the time of the behaviour.
• That egregious conduct does not include all bad or wrong behaviour; termination for cause may be appropriate disciplinary action but is not in and of itself proof of egregious conduct.
• That financial consequences to the worker are only triggered if their conduct meets the definition of egregious conduct.Conduct that is “flagrantly bad” or “staggeringly bad, or obviously wrong, beyond any reasonable degree.
• What benefits to the worker may be impacted if the conduct is considered egregious.

Review the information obtained from the employer and ask whether the worker agrees with this information, has other information to provide, or has any concerns. Gather any supporting documentation from the worker.

Review the claim and determine whether sufficient information has been gathered to make a decision. If additional information is needed from the employer send the appropriate letter. Confirm wage loss benefits continue to be paid to the worker during the investigation period.Refer to the Key Information section for information.

Once the investigation is concluded document the details of the investigation in the egregious conduct fact summary template. Request that a supervisor review all relevant information provided and if approved submit it to the director and Associate Vice President for review.

The supervisor will add a file note indicating whether further information is required or if the recommendation is approved. If the supervisor:

• Indicates further information is required, go to the next step.
• Agrees with the recommendation they will submit it to the director(s).

The director and/or Associate Vice President will meet with the supervisor and decision maker to review the claim and ensure all information has been considered prior to applying the egregious conduct policy.

Following the discussion with the director(s) the supervisor will add a file note documenting the outcome of the meeting. If the file note indicates that:

• Further information is required, go to the next step.
• The egregious conduct recommendation has been approved, go to Step 5.

Call the worker and employer and discuss the additional information requested by the supervisor or director(s) review.

Once completed, return to Step 3 to send the claim back to the supervisor or director(s) for review and approval.

When the worker's conduct was determined to be:

• Egregious, contact the worker and employer to discuss the decision and the impact to benefits and services. Advise the employer or worker if they met or did not meet duty to cooperate.
• Not egregious, contact the worker and employer to explain the decision, ensuring they understand the basis for the decision and why it does not meet the egregious conduct policy. Advise the employer or worker if they did or did not meet duty to cooperate.

Once an egregious conduct decision has been made which confirms the employer withdrew or terminated modified work because of the worker’s egregious conduct, WCB pays benefits in accordance with Section 56(13)(a), as if the worker was continuing to work. Wage loss benefits paid to the worker during the investigation period will be deleted and the resulting overpayment will be forgiven.

Draft the Egregious Conduct decision letter and obtain the necessary approval prior to sending it.

• Not egregious, and the worker is:
  • Cooperating with their medical or re-employment plan, continue to manage the claim.
  • Not cooperating with their medical plan or re-employment plan, go to Duty to Cooperate [PDF, 0.17MB].
• Egregious and the worker is:
  • Cooperating with their medical or re-employment plan, send the Egregious Conduct Decision letter explaining the change in their benefits and continue to manage the claim.
  • Not cooperating with their medical or re-employment plan:
    1. Determine if the worker has permanent work restrictions or is likely to have permanent work restrictions had they participated in the recommended treatment.
    2. Send the Egregious Conduct Decision letter explaining the change in their benefits.
    3. If the worker has confirmed permanent work restrictions obtain approval for a new temporary partial disability benefit. If permanent work restrictions are not yet confirmed, the claim can be inactivated until the worker advises that they will participate in the services necessary to confirm permanent work restrictions.

Notes:

• Although the worker may not be eligible for wage loss benefits, the worker continues to be eligible for medical aid and any other appropriate benefits. In all cases, WCB monitors the worker’s recovery and adjusts benefits as necessary.
• The egregious conduct provision in the Workers’ Compensation Act appliesSee Section 56(15.1) for more details. only to temporary disability benefits and does not affect benefit eligibility if the injury results in permanent disability. If the worker has permanent restrictions, they are entitled to benefits that flow from that decision (that is, re-employment benefits and services).