Law
The WSIB shall not review a worker’s LOE benefit more than 72 months after the date of the worker’s injury unless
- before the 72-month 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
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the worker was provided with a labour market re-entry (LMR) plan and the plan is not completed when the 72-month period expires, or
after the 72-month period expires, the worker suffers a significant deterioration in his or her condition that -
results in a redetermination of the degree of permanent impairment
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results in an initial determination of a permanent impairment
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is likely, in the WSIB’s opinion, to result in a redetermination of the degree of permanent impairment, or
after the 72-month period expires, the worker suffers a significant temporary deterioration in his or her condition that is related to the injury, or
when the 72-month period expires,-
the worker and the employer are co-operating in the worker’s early and safe return to work, or
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the worker is co-operating in health care measures.
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Guidelines
Except where noted, the final LOE benefit review must occur before the end of the 72nd month post-injury (i.e., prior to the start of the 73rd month). In preparation for the final review, the decision-maker initiates a review at 67 months post-injury by requesting that the worker provide information relating to his or her
If the worker fails to respond after one follow-up, the LOE benefit is withheld at 70 months post-injury. The WSIB sends the worker a final follow-up letter at 71 months post-injury. The LOE benefit is not restored until a full review occurs. If the final review does not occur by the 72nd month post-injury, the LOE benefit cannot be restored retroactively.
Actual earnings from suitable and available employment or business (SEB)-identified job
In conducting the final LOE review for a worker employed in a SEB-identified job, the WSIB uses the worker’s actual earnings to pay the LOE benefit, even if the earnings are not consistent with recent wage information. The only exception would be where the worker is under-employed.
Under-employed
A worker is considered to be under-employed when he or she is employed in such a way that does not permit the use of his or her full abilities, skills and training in mitigating the loss of earnings resulting from the work-related injury. See 18-03-03, Reviewing LOE Benefits (Prior to Final Review), for examples of cases where a worker would be considered under-employed.
Actual earnings from non SEB-identified job
In cases where the worker has co-operated in a LMR plan and returns to work in a job not identified in the SEB, the final LOE benefit may be based on actual earnings if
- the decision-maker is satisfied that the earnings come reasonably close to the SEB-identified earnings, and
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represent the same or similar future potential earnings.
When final review occurs before the worker is able to find a job
The SEB-identified earnings for the purposes of locking in the LOE benefit until age 65 are based on the available wage information as of the LMR 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 LOE benefit. This generally occurs if the LMR plan was designed to provide the worker with new skills or if the worker would have entered a new field.
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mid-range wages to determine the post-injury earnings, updated mid-range wages are used. This generally occurs if the LMR plan was designed to improve a worker’s existing or transferable job skills, see 19-03-03, Determining Suitable and Available Employment or Business, and Earnings.
Adjusting earnings to that of an experienced worker
The earnings of an experienced worker should reflect the level of earnings most likely achieved by those workers in the SEB that had a full experience doing the job (e.g., had several years of experience in the job). In some cases, this may be at or close to the maximum earnings identified in the wage information, and in other cases, it may not.
In selecting earnings to reflect those of an experienced worker, the decision-maker should consider factors such as
- the nature of the job (e.g., in some jobs, few workers are able to earn the high-end wages)
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the age of the worker (movement into the high-end wages may take many years)
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geographic location may limit the number of workers that can achieve high-end wages
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level of education and training provided by a LMR plan, and
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any other information that may identify wage levels (job rate), such as where pay increases are linked to exceptional performance.
So in these cases, when conducting the final review, or when an “older worker” chooses the “no review” option, the WSIB determines the worker’s post-injury net average earnings, using updated wage information and the amount an experienced worker would earn in the identified SEB if the worker
Exceptional cases - post 72 months
Effective July 1, 2007, there are two exceptions that affect a final review
- a deferral of the final review if the worker is co-operating in health care measures, early and safe return to work (ESRTW) activities or is involved in a LMR plan and the plan is not completed at the time of the final review, or
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the provision of additional reviews due to a significant deterioration in the work-related injury/illness.
1. Final review deferred
The final LOE benefit review may be deferred if the worker is co-operating in
- health care measures the WSIB considers appropriate
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ESRTW activities, or
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a LMR program
at the time the 72-month period is reached.
Co-operating in health care measures at 72 months
In some cases, a worker will not be working but co-operating in health care measures at the time of the final review. Quite often the worker will be involved in a medical rehabilitation (MR) program.
A MR program is any course of medical or paramedical treatment or care for a work-related injury. The purpose of a 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. For additional information on MR programs, see 18-04-11, Supplements for Programs and LMR Plans Before and After 24 Months and 18-06-03, Definitions for Adjudicating Pre-1998 Claims.
Generally, a 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 a 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
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attending a WSIB arranged specialist consultation
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having a prosthesis repaired or replaced.
A decision-maker will have to assess active or planned health care at the 72-month period to decide if the final review should be deferred.
Co-operating in ESRTW at 72-months
The WSIB defines the workplace parties’ co-operation in ESRTW activities to include
- the accident employer and worker initiating and maintaining communication with each other throughout the worker’s recovery and impairment
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identifying and securing suitable and available work (employer attempting to provide suitable work/worker assisting the employer to identify suitable work)
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providing relevant worker’s information to the WSIB concerning the worker’s return to work
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notifying the WSIB of any difficulty or dispute concerning return to work, see 19-02-02, The Goal of ESRTW and the Roles of the Parties.
The WSIB generally considers the workplace parties to be co-operating in ESRTW at the 72-month period if
- the employment relationship between the workplace parties has been maintained
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the workplace parties are actively attempting to identify suitable and available jobs or in the process of arranging a return to work consistent with the worker’s functional abilities
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neither workplace party is refusing to abide by his, her or its co-operation obligations, see 19-02-03, Workplace Party Co-operation.
When considering whether to conduct a review of LOE benefits after the 72-month period for workers who are co-operating in ESRTW, the WSIB considers the following factors such as whether
- job suitability/sustainability concerns existed prior to the 72-month period
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the job being performed post-72 months is highly accommodated
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the worker experiences further or additional reduction of earnings after the final review due to a job change or another situation directly related to the injury
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there is evidence that the worker is having difficulty performing the job (e.g., frequent lost time from work due to the work injury, inability to increase or need to decrease the number of hours of work), and/or
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there is an indication that the accommodated job is temporary or could cease due to employment circumstances. For additional information on accommodated employment, see 18-04-11, Supplements for Programs and LMR Plans Before and After 24 Months.
A worker’s post-72 month job is generally considered highly accommodated if it
- includes significant work or workplace modifications that would not generally be available in the general labour market
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pays the worker at a rate significantly higher than what the employer pays for similar jobs, or is one where the productivity required of the worker is significantly lower than would normally be expected
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was created especially for the worker (e.g., tasks and work processes have been specifically accommodated for the worker’s impairment and are not likely to exist with, or be provided by, another employer), or
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is eliminated, restricts the worker’s ability to find new employment with similar medical precautions/accommodations in the general labour market.
NOTE
If the worker returns to accommodated employment and that job is no longer available at the time of the final review, the decision-maker may refer the worker for LMR services.
Co-operating in LMR plan at 72 months
If a worker is co-operating in a LMR plan that is not completed by the 72nd month, the final review may be deferred. This would include any situation where the current LMR plan had to be amended given changed circumstances. There may also be cases where a LMR assessment has been arranged or even completed, with the intention to provide the worker with a LMR plan that would allow for the deferral.
Conducting the final review
Benefit duration
LOE benefits can continue to be paid beyond the 72-month period if a worker is participating and co-operating in health care measures, ESRTW or LMR activities. In some cases, a worker who completes a MR program may become involved in the ESRTW process. If ESRTW activities do not result in a return to suitable work, the WSIB may then provide the worker with a LMR assessment and, if necessary, a LMR plan. The worker is entitled to full LOE benefits providing the worker continues to participate and co-operate in health care measures, the ESRTW process and/or LMR activities. See, 22-01-03, Workers’ Co-operation Obligations.
Time for review
The WSIB may review the LOE benefits up to 24 months after the expiry of the 72-month period, if the worker is involved in health care measures and/or ESRTW activities. The final review must be completed by the 24-month period, or sooner if either the health care or ESRTW has been completed.
If the worker is involved in a LMR plan through the 72-month period, or is placed in LMR where ESRTW has failed after 72 months, LOE benefits can continue. The final review should occur within 30 calendar days of the LMR plan completion (i.e., by the 31st day post-LMR plan completion). If the worker is not working at that point, please see “When final review occurs before the worker is able to find a job” above.
Transitional provision
If the final review occurred prior to July 1, 2007 and the worker was involved in health care measures or ESRTW activities at the final review, that are ongoing on July 1, 2007, the WSIB can review the LOE benefits as of July 1, 2007, however, the 24-month review limitation runs from the date of the 72-month final review.
Example
Jane was involved in a program of care for a traumatic brain injury when the 72-month period expired on April 1, 2007. The MR program continued beyond July 1, 2007. The WSIB may initiate a review of the LOE benefits as of July 1, 2007, but must complete that review by April 1, 2009 (i.e., 24 months from April 1, 2007) unless Jane is provided with a LMR plan before the 24-month period expires.
2. Significant deteriorations post 72 months
The WSIB may review the LOE benefit after the 72nd month final review 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 medical/health care intervention to improve the worker’s condition (e.g., surgery)
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establishment of objective medical evidence to support a significant deterioration
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evidence of increased medical precautions or whether functional abilities have changed (i.e., evidence of an increase in restricted activities may support a finding of significant temporary deterioration), or
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job change impacts. For additional information, see 15-03-01, Recurrences.
Temporary deterioration
Where the information supports the worker has a significant temporary deterioration, LOE benefits may be reviewed from the period of the deterioration until the worker recovers from the significant temporary deterioration as supported by objective medical evidence.
NOTE
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 benefit is terminated the following day, see 18-03-03 Reviewing LOE Benefits (Prior to Final Review). If a worker undergoes an initial determination that results in a 0% rating, LOE benefit entitlement continues for a maximum of 2 weeks until the worker is notified in writing, see 18-03-03, Reviewing LOE Benefits (Prior to Final Review).
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 LOE 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
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the time lapsed since the last NEL assessment
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the objective evidence of substantial change in medical findings since the last NEL assessment, see 18-05-09, Redeterminations and Recalculations
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the severity of the work-related injury/illness and likelihood of future deterioration, or
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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 Non-Economic Loss (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 72nd month post-injury, 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 72-month period. In these situations, the guidelines set out in 18-05-09, Redeterminations and Recalculations, would apply with any necessary modifications.
Extension of the 24-month period following redetermination of 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 LMR plan that is not completed by the 24-month period, the review period is extended until the LMR plan has been completed. The WSIB then has 30 calendar days to conduct a review of the LOE benefit from the LMR plan completion date. This extension only applies to LMR plans that were established following a redetermination of the worker’s permanent impairment that
occurred on or after July 1, 2007.
Transition cases - significant deterioration prior to July 1, 2007
If the worker suffered a significant deterioration prior to July 1, 2007, and is awaiting a NEL redetermination, the LOE benefit may be reviewed as of July 1, 2007. However any retroactive benefits (i.e. prior to July 1, 2007) can only be considered if the NEL redetermination results in an increase of the worker’s permanent impairment. In general, the decision-maker will consider benefits from the permanent worsening date or recurrence date up to July 1, 2007 and continuing in accordance with the exceptions noted in this policy.
Increase/decrease in post-injury earnings
In cases where the WSIB conducts a further review of the LOE 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 net average earnings, usually 10% or greater, it is considered “material” and the WSIB adjusts the LOE benefit accordingly. See 22-01-02, Material Change in Circumstances - Worker.
Requirement to report material change in circumstances
When the WSIB reviews the LOE 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.
Application date
This policy applies to all decisions made, with respect to wage loss entitlement periods on or after July 1, 2007, for all accidents on or after January 1, 1998.
Document history
New document.
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References
Legislative authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 2.1, 23, 42(3), 43, 44, 47(13)
Minute
Administrative
#2, June 21, 2007, Page 438
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