Issues About the Amount of Payment
Background
Usually worker’s questions about how much they are getting paid centre on:
- questions about benefit rate
- questions about earnings basis
- 12 week recalculation
- Partial Loss of Earnings/”deemed earnings”/Loss of Earnings review
- CPP integration
- “pensions”
- supplements
- Future Economic Loss
- Sustainability
- Non Economic Loss
The answers to these questions depend on whether the current lost time is under a new claim or if it is a “recurrence” of a prior injury because “injury date” determines benefit rate.
- for injuries before April 1, 1985, the benefit rate is based on 75% of gross earnings
- for injuries between April 1, 1985 and January 1, 1998, the benefit rate is based on 90% of net earnings
- for injuries after January 1, 1998, the benefit rate is based on 85% of net earnings
11. I can’t believe that this is all I get on WSIB when I had overtime and lots of hours when I got hurt.
- employer may not have put down all the earnings on the Form 7 (Employer’s Report of Injury)
- can correct the earnings basis by supplying additional information
- underreported earnings (eg. overtime, bonuses, shift differentials, tips) can be included but very restrictive policy
- remember, retroactive pay increases can be used to increase the benefit rate
- concurrent employment - multiple jobs at the time of the injury can be treated as one income if earnings in each of the past four weeks before the injury - very restrictive policy
- appeals on earnings basis can carry a downside risk - may end up getting a lower rate so client must be cautioned but it is their choice to make
12. I can't live on what the Board is paying me, because I would have been earning a lot more by now if I had not been injured.
- benefit rate is based on pre-injury earnings
- benefit rate does not reflect potential earnings
13. I have now been off work for 13 weeks but my benefits have really been cut from last week to this week. Why is that?
- Cut could be result of Board “determining” that the worker has 'deemed earnings' (see question 14) but probably is the 12 week recalculation, where the Board switches to earnings from past 2 years (the long-term earnings basis) in order to set the earnings basis for ongoing benefits
- need details about the worker’s prior employment pattern - was this "permanent" work (discretionary recalculation) or "non-permanent" work (automatic recalculation) - policies in 18-02-01 and following
- look for income not included - overtime, bonus, allowances for meals or car
- look for periods of no earnings that should be excluded - on Long Term Disability (LTD), social assistance, full time school, parental leave, jail
- look for a "break in the employment pattern" that could block the recalculation from going back the full 2 years
- special rules for severe impairment (over 60% Non Economic Loss)
14. My adjudicator says that I can earn $x in a job that I don’t have.
- This is a question about “partial“ Loss of Earnings benefits, where the formula is using “deemed” wages for the post-injury earnings
- when the worker starts a Labour Market Re-entry program, the Board will “determine (ie. “deem”) the worker to be capable of earning wages in the “suitable employment or business” (the SEB) that best reduces or eliminates the loss of earnings
- “deeming” means that these wages will be used in the Loss of Earnings formula (or in the former Future Economic Loss formula for 1990-1998 injuries) once the Labour Market Re-entry plan is complete, whether or not the worker is actually working in that field
- the worker can appeal this by either appealing the choice of suitable employment or business as being unsuitable or by appealing the wages associated with the suitable employment or business (with evidence of wages to be used, from sources such as www.labourmarketinformation.ca) or by appealing on the basis that the job is not available (again, labour market information, lack of job ads, etc)
- appeals about the choice of suitable employment or business as part of a Labour Market Re-entry plan have a 30 day deadline
- even if worker is working, Board can still say worker is “underemployed” and use higher deemed wages
15. I got Canada Pension Plan Disability after my injury. Since that means I can't work, why did the Board use my CPP-D in setting my Loss of Earnings?
- need to determine if any part of the CPP was NOT for the injury, as can then argue that not all of the CPP should be added on
- receipt of CPP-D does not mean, in Board's eyes, that person is totally disabled
- policy now says that the Board is to use the higher of any “deemed” wages associated with the suitable employment or business or the CPP-D rate (this was a major change in policy at the Board and there may still be some injured workers whose benefits are still being incorrectly adjudicated under the old policies)
- there is a parallel policy on the integration of CPP-D into Future Economic Loss benefits
Questions Specific to Pre-1990 Injuries
16. All I get is my pension each month but I have not worked for years, and I can't live on this pension.
- "pension" does not equate to "comfortable living" and is not based on financial need
- may be eligible for supplementary benefits (even if, on review of file, these were denied in the past)
- one type of small supplements is paid to age 65 (when it is replaced by Old Age Security): the other small supplement (paid under s. 147(14) can be worth up to about $200 per month) carries on past 65
- cheque stub will show if being paid the supplements or not
- the s.147(14) supplement Is not considered income for ODSP or OW purposes
17. I know somebody else that got injured before 1990 and they are getting $600 per month for their back. Mine is much worse than theirs and I am only getting $400 per month. Why don't I get that much?
- pensions are based on a rating schedule or "meat chart" that only Board doctors are "experts" on
- percentage may be different
- based on earnings, and depending on when the injury was, could be on gross or net
- bottom line, no real way to compare worker to worker: best advice is to see that what worker is getting is correct for their situation
18. I really need money to pay off my mortgage. Can't I take my pension in a lump sum?
- this is called commutation
- very strict test, set by policy, that needs "rehabilitative" purpose to the request
- not likely to be granted
19. I have slowly gotten much worse since my pension assessment that happened 15 years ago. How can I ask the Board for an increase?
- need comparison between current findings and the findings on the last pension assessment done by the Board to show that are worse now than then
- probably need to get the file to find that document so that current physician can do comparison
- if are indeed worse, Board will bring in for reassessment
- when the decision letter comes out after the reassessment, be sure to check the “arrears” date as well as the percentage increase
- should be paid retroactive award of pension increase back to 3 months before the worsening was noted by doctor
- both parts of the decision (increase and arrears) can be appealed
20. I have a pension from a long time ago for my low back but I got really worse all at once when I bent over and my back went out on me. Can I get more benefits from the Board?
- need comparison of current findings to last pension examination (document is in the Board file)
- a sudden deterioration in condition may warrant payment of biweekly benefits all the while worker’s condition is in the acute flare-up stage
- a gradual decline may only result in pension reassessment (see question 19)
- once condition levels off, Board may bring in again for pension reassessment, if worker never returns to old pension level of disability
Questions for injuries between January 1, 1990 and January 1, 1998
21. Why can't I get back on biweekly benefits rather than my Future Economic Loss, now that my condition has gotten worse?
- Future Economic Loss is a one-way door
- can not go back to biweekly benefits once the worker gets a Future Economic Loss, but can ask to be put back on FEL supplement all the while the condition is acute or worker is in some sort of rehabilitation (medical or labour-market related)
- will need to show that the present condition is worse than what is reflected in the Non Economic Loss report on file in order to get more Future Economic Loss supplement for medical rehabilitation
22. My final Future Economic Loss review left me with only $1 per year, even though I am not working, because the Board says I will be able to earn that amount between now and the time I am 65. Is that a joke?
- This is called a "sustainability" Future Economic Loss
- Board believes that there is no longer a wage loss but is leaving the door open in case there is a need for more rehabilitation in the future (ie. medical)
- if still within time lines to appeal, could argue that do not have skills to earn that in that job, or that the job does not pay that much
- can argue that last Future Economic Loss review should be a "point-in-time" calculation, not a projection to age 65
- in some circumstances, can re-open FEL after final review (see question 23)
23. My Future Economic Loss is now locked in to age 65, but my condition has gotten much worse. Is there any way I can change it now?
- if can show that condition is significantly worse than what was shown in the Non Economic Loss, may be possible to get Future Economic Loss reassessed, even after the final review
- must be a significant deterioration in condition that either results in a redetermination of the degree of permanent impairment, or results in an initial determination of a permanent impairment or is likely to result in a redetermination of the degree of permanent impairment
- may also get FEL re-opened if is only a significant temporary deterioration in condition
For Injuries After January 1, 1990
24. How come I got such a small amount for my Non-Economic Loss when I am really in bad shape?
- not assessed for NEL until have reached maximum recovery after the injury
- once that point is reached, the injured worker is either assessed by a doctor chosen by the worker from a roster sent by the Board, or in some cases, the WSIB rates the injury from documents only
- the report from the NEL assessment is sent to the injured worker
- the Board’s NEL adjudicator plugs the findings shown in that report into charts in American Medical Association’s “Guide to the Evaluation of Permanent Impairment” (3rd Edition) to come up with percentage of impairment
- then percentage is applied in the mathematical formula to come up with dollar value
- has little to do with how disabled person is in eyes of the Board
- rating can be appealed
- In order to get the NEL reassessed, a year must have passed since the last assessment, and the worker must be able to show that the current findings are worse than those noted in the original NEL report (requires medical opinion/report as to the deterioration)
- the Non Economic Loss benefit is not affected by non-cooperation in Return to Work or Labour Market Re-entry
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