Final FEL Benefit Review
- Benefit Payments
- Application Date
- This policy applies to all FEL decisions made, with respect to wage loss entitlement periods on or after February 15, 2013, for accidents from January 2, 1990 to December 31, 1997.
- Future Economic Loss (FEL) (Accidents from 1990-1997)
- Final FEL Benefit Review
- Document No.
Document sections:| Policy | Guidelines | Exceptional cases - 60-month post-initial FEL determination | References |
The WSIB shall not review the future economic loss (FEL) payments more than 60 months post-initial FEL determination, unless
- before the 60-month post-initial FEL determination period expires, the worker fails to notify the WSIB of a change in circumstances or engages in fraud or misrepresentation in connection with his or her claim for benefits under the insurance plan, or
- the worker was provided with a work transition (WT) plan and the plan is not completed when the 60-month post-initial FEL determination period expires, or
- after the 60-month post-initial FEL determination period expires, the worker suffers a significant deterioration in his or her condition that
- results in a redetermination of the degree of permanent impairment
- results in an initial determination of a permanent impairment
- is likely, in the WSIB’s opinion to result in a redetermination of the degree of permanent impairment, or
- after the 60-month post-initial FEL determination, the worker suffers a significant temporary deterioration in his or her condition that is related to the injury.
The purpose of this policy is to outline when the final FEL benefit review is conducted and how exceptional cases are addressed.
Except where noted, the final FEL benefit review must occur before the end of the 60-month post-initial FEL determination. In preparation for the final review, the decision-maker initiates a review at 55 months post-initial FEL determination by requesting that the worker provide information relating to his or her
- earnings/income including Canada Pension Plan/Quebec Pension Plan disability benefits paid because of the work-related injury/disease, see 18-01-13, Calculating CPP/QPP Offsets from FEL/LOE Benefits
- employment status, and
- health (clinical) status.
If the worker fails to respond after one follow-up, the FEL benefit is suspended at 58-months post-initial FEL determination. The FEL benefit is not restored until a full review occurs. At that time, the FEL benefit may be paid retroactively to the point when it was suspended. If the final review does not occur by the 60-month post-initial FEL determination, the FEL benefit cannot be restored retroactively.
Actual earnings from suitable occupation identified job
In conducting the final FEL review for a worker employed in a suitable occupation (SO) identified job, the WSIB uses the worker’s actual earnings to pay the FEL benefit, even if the earnings are not consistent with recent wage information. The only exception would be in cases where the worker is voluntarily under-employed. See 18-04-14, Reviewing FEL Benefits (Prior to Final Review).
Actual earnings from non-SO-identified job
In cases where the worker has co-operated in a WT plan and returns to work in a job not identified in the SO, the final FEL benefit may be based on actual earnings if
- the decision-maker is satisfied that the earnings come reasonably close to the SO-identified earnings, and
- represent the same or similar future potential earnings.
When final review occurs before the worker is able to find a job
The SO-identified earnings for the purposes of locking in the FEL benefit until age 65 are based on the available wage information as of the WT plan completion date. Where the final review occurs before the worker is able to find a job, if the WSIB originally used
- entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the FEL benefit. This generally occurs if the WT plan was designed to provide the worker with new skills or if the worker would have entered a new field, or
- mid-range wages to determine the post-injury earnings, updated mid-range wages are used. This generally occurs if the WT plan was designed to improve a worker’s existing or transferable job skills, see 19-03-03, Determining Suitable Occupation.
Adjusting earnings to that of an experienced worker
When conducting the final review, the WSIB determines the worker’s post-injury net average earnings (NAE), using updated wage information and the amount an experienced worker would earn in the identified SO if the worker
- has never returned to work despite being able to do so and has chosen not to co-operate in his or her work reintegration (WR) with the injury employer and/or WR obligations, or
- returned to work, but is voluntarily under-employed.
Where a worker has co-operated in WR and is not working at the time of the final review, the FEL benefit will not be calculated based on 'experienced worker earnings', but will be paid based on SO-identified earnings.
The earnings of an experienced worker should reflect the level of earnings most likely achieved by those workers in the SO that had a full experience doing the job (e.g., had several years of experience in the job).
In selecting earnings to reflect those of an experienced worker, the decision-maker should consider factors such as
- the age of the worker (movement into the high-end wages may take many years)
- level of education and training provided by a WT plan
- the nature of the job (e.g., in some jobs, few workers are able to earn the high-end wages)
- and any other information that may identify wage levels (job rate).
Exceptional cases - 60-month post-initial FEL determination
Effective July 1, 2007, there are two exceptions that affect a final review
- a deferral of the final review if the worker is involved in a WT plan and the plan is not completed at the time of the final review, or
- the provision of additional reviews due to a significant deterioration in the work-related injury/illness.
1. Co-operating in WT 60-month post-initial FEL determination
If a worker is co-operating in a WT plan that is not completed by the 60th month post-initial FEL determination, the WSIB may defer the final review. In these cases, the final review must occur within 30 calendar days of the WT plan completion (i.e., by the 31st day post- WT plan completion). If the worker is not working at that point, see “When final review occurs before the worker is able to find a job” above.
2. Significant deterioration after 60-month post-initial FEL determination
The WSIB may review the FEL benefit after the 60-month post-initial FEL determination if the worker suffers a significant deterioration in his or her work-related condition.
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.
To determine if there is evidence of a significant deterioration, decision-makers should consider factors such as
- the need for further active clinical/health care intervention to improve the worker’s condition (e.g., surgery)
- establishment of objective clinical evidence to support a significant deterioration
- evidence of increased clinical precautions or whether functional abilities have changed (e.g., evidence of an increase in restricted activities may support a finding of significant temporary deterioration), or
- job change impacts. For additional information, see 15-03-01, Recurrences.
Where the information supports the worker has a significant temporary deterioration, FEL benefits may be reviewed from the period of the deterioration until the worker recovers from the significant temporary deterioration as supported by objective clinical evidence. See “Further review of the FEL benefit” below.
While a worker may take an occasional day off from work, this quite often is not indicative of a significant deterioration.
Likely permanent impairment or redetermination
At the time a significant temporary deterioration is accepted, it may not be apparent that the worker requires a permanent impairment review. The decision-maker continually monitors and assesses the health care information to decide if an initial determination or redetermination of the worker’s permanent impairment should be arranged.
If an initial determination or redetermination of the worker’s permanent impairment is likely required, payments can be reviewed up to the point that this takes place. Based on the result of the initial determination or redetermination, the review period may be extended further, see "Redetermining the permanent impairment" below.
However whenever the WSIB determines that an initial determination or redetermination is not required, the review period ends. Decision-makers must complete this review and fully notify the worker of ongoing wage loss entitlement within five business days from the date it is decided that an initial determination or redetermination is not required.
If at any point it is determined that the worker no longer has an impairment, the FEL benefit is terminated the following day. If a worker undergoes an initial determination that results in a 0% non-economic loss (NEL) rating, FEL benefits continue until the worker is notified in writing and are paid to the end of the month in which the 0% NEL decision is rendered, see 18-04-14, Reviewing FEL Benefits (Prior to Final Review).
FEL supplements - 60-month post-initial FEL determination
After the 60-month post-initial FEL determination, workers receiving a FEL benefit (including a FEL sustainability benefit) may be entitled to a FEL supplement if the worker
- is participating in a WT plan and the plan is not completed when the 60th month review point is reached, or
- experiences a significant deterioration in his or her clinical condition, and the worker co-operates and participates in a medical rehabilitation (MR) program.
An MR program is any course of medical or paramedical treatment or care for a work-related injury. The purpose of an MR program is to bring the worker to a state of maximum medical recovery so that the worker may return to suitable and available employment.
Generally, an MR program does not simply consist of the continued use of prescription medication and/or maintenance physiotherapy or chiropractic treatments. A worker is considered to be in an MR program if any of the following situations occur, but is not limited to
- receiving active treatment due to a recurrence of the work-related injury/illness
- attending a WSIB arranged specialist consultation
- having a prosthesis repaired or replaced.
For more information regarding the payment of supplements where the worker is participating in an WT plan or an MR program, see 18-04-11, Supplements for Programs and Work Reintegration Activities Before and After 24 Months; or where the worker experiences a significant deterioration, see 18-04-12, Supplement Following Significant Deterioration.
Eligibility despite a zero NEL rating
A “zero NEL rating” means that prior to the final review, a worker does not have a permanent impairment and, therefore, is not entitled to a NEL benefit. Such a worker cannot request a redetermination of his or her zero NEL benefit.
However, where a worker, previously assessed at a zero NEL rating, suffers a significant deterioration following the final review, that worker may be eligible for a review of FEL benefits. If the significant deterioration is temporary, the review period ends when the worker recovers. If it is eventually determined that the worker may likely have a permanent impairment, the WSIB may conduct a new permanent impairment determination.
Redetermining the permanent impairment
In deciding whether a worker should have a redetermination, decision-makers consider factors such as
- whether the worker has recently undergone surgery for the work-related injury/illness
- the time lapsed since the last NEL determination
- the objective evidence of substantial change in clinical findings since the last NEL determination, see 18-05-09, Redeterminations
- the severity of the work-related injury/illness and likelihood of future deterioration, or
- the recognition of new areas of entitlement to a permanent impairment.
If the WSIB redetermines and increases the worker’s permanent impairment, the review period may continue for a period of up to 24 months from the date the NEL benefit is processed. If the redetermination does not result in an increase to the NEL benefit, the review ends as of the date of the redetermination.
New areas of entitlement to a permanent impairment
For the purposes of significant deteriorations that occur after the 60-month post-initial FEL determination, the WSIB will also consider new areas of entitlement (in addition to the existing permanent impairment/NEL) for which a permanent impairment is rated, but which were not initially identified before the expiration of the 60-month period. In these situations, the guidelines set out in 18-05-09, Redeterminations, would apply with any necessary modifications.
Extension of the 24-month period following redetermination of a permanent impairment
If the WSIB redetermines the worker’s permanent impairment and increases the NEL benefit, and if that worker is co-operating in a WT plan that is not completed by the 24-month period, the review period is extended until the WT plan has been completed. The WSIB then has 30 calendar days to conduct a review of the FEL benefit from the WT plan completion date.
Further review of the FEL benefit
Although the FEL benefit may be adjusted at the outset when the worker has suffered a significant deterioration, the decision-maker must conduct a further review of the “locked in” benefit, and if warranted, adjust the benefit before that review opportunity ceases. This review should normally take place
- when a significant temporary deterioration ends
- whenever the WSIB determines that a NEL determination or redetermination of the worker’s permanent impairment is not required, or
- 24 months from the NEL processing date if the NEL determination or redetermination confirms a significant deterioration of the permanent impairment resulting in a NEL or an increased NEL benefit, based on the facts of the case.
Increase/decrease in post-injury earnings
In cases where the WSIB conducts a further review of the FEL benefit after the final review, the benefit may be confirmed, varied or discontinued to take into account any increases or decreases in post-injury earnings.
If there is a significant change in the post-injury NAE, usually 10% or greater, it is considered “material” and the WSIB adjusts the FEL benefit accordingly. See 18-04-14, Reviewing FEL Benefits (Prior to Final Review) and 22-01-02, Material Change in Circumstances - Worker.
Requirement to report material change in circumstances
When the WSIB reviews the FEL benefit after the final review, the worker is responsible for reporting any material change in circumstances. Where the worker fails to notify the WSIB of a material change, the WSIB may review the payments at any time during the review period. Multiple reviews may be conducted during the review period, if warranted. See 22-01-02, Material Change in Circumstances - Worker.
This policy applies to all FEL decisions made with respect to wage loss entitlement periods on or after February 15, 2013, for accidents from January 2, 1990 to December 31, 1997.
Policy review schedule
This policy will be reviewed within five years of the application date.
This document replaces 18-04-20 dated July 15, 2011.
This document was previously published as:
18-04-20 dated July 3, 2007.
Workplace Safety and Insurance Act, 1997, as amended
Sections 102, 106, 107, 108
Workers’ Compensation Act, 1990, as amended
Sections 22(1), 42, 43
#34, January 28, 2013, Page 507