Section Loss of Earnings (LOE) (Accidents from 1998)

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1 Law WSIB, Document Num ber, Title Payment and Reviewing L OE B enefits (Prior to Final R eview), Secti on L oss of Ear nings (LOE) (Accidents from 1998) A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of the day on which the worker s loss of earnings ceases the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or the day on which the worker is no longer impaired as a result of the injury. s.23(3) A person receiving benefits under the insurance plan or who may be entitled to do so shall notify the Board of a material change in circumstances in connection with the entitlement within 10 days after the material change occurs. s.44(1) Every year or if a material change in circumstances occurs, the Board may review payments to a worker for loss of earnings and may confirm, vary or discontinue the payments. Guidelines LOE benefits are based on 85% of the worker s pre-injury net average earnings (NAE) subject to the legislated minimum and maximum amounts of compensation. A full LOE benefit is 85% of the worker s pre-injury NAE. A partial LOE benefit is some portion of 85% of the worker's pre-injury NAE. LOE payments begin the day after the date of injury. LOE payments may begin on a later date if the worker s loss of earnings does not begin immediately following the injury. Employers are responsible for paying workers their full wages for the day of injury. Payment of full LOE Treatment with no return to work If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker s LOE benefits. Published: 15 July 2011 Page 1 of 5

2 Work reintegration (WR) activities Workers are entitled to full LOE benefits if they co-operate in WR activities, and continue to have a full loss of earnings. Payment of partial LOE Post-injury employment earnings In some case, the WSIB may need to determine post injury earnings. If a worker has returned to work or is participating in WR activities, the WSIB calculates the LOE benefit by taking 85% of the difference between the worker s pre-injury NAE and postinjury NAE. Determining post-injury earnings Earnings may be determined when it is decided that a worker will not be provided with WR services, or a work transition (WT) plan is completed/closed. Those earnings are determined using the identified suitable occupation (SO) which are determined using current wage and labour market information. The LOE benefit is based on 85% of the difference between the worker s pre-injury NAE and the determined post-injury NAE. If the worker obtains a job in the identified SO, the WSIB generally uses the actual employment earnings to calculate the partial LOE benefit. Reviewing LOE Benefits Material change reviews A worker who is eligible to receive benefits must report any material change in circumstances to the WSIB. Types of material changes to be reported include, but are not limited to, changes in health (medical) status earnings/income including Canada Pension Plan/Quebec Pension Plan (CPP/QPP) disability benefits paid because of the work-related injury or disease employment status availability for, or co-operation in, health care, WR with the injury employer or appropriate WT services, and optional insurance coverage. An LOE benefit may be adjusted at any time prior to the final review for any material change or failure to report a material change which occurs The adjustment to the LOE benefit is effective from the date the material change occurred. For more information on what may be considered a material change, see , Material Change in Circumstances - Worker. Published: 15 July 2011 Page 2 of 5

3 Material change in earnings Significance test - 10% or greater To determine if a change in earnings is material, the decision-maker compares the recently reported net average earnings (NAE) with the NAE being used to pay the LOE benefit. If there is a significant change (increase or decrease) in the post-injury NAE, usually 10% or greater, it is considered material, and the WSIB adjusts the LOE benefit accordingly. Each time new post-injury earnings are reported, decision-makers compare these to the earnings last used to actually adjust the benefit. Case management reviews In addition to material change (new information) reviews, the WSIB also conducts general reviews for cases with continuing loss of earnings at six, nine and twelve months post-injury, and then annually until the final 72-month benefit review. Other review periods may be determined for disease claims. The purpose of the case management reviews is to ensure that recovery and WR goals are achieved and that benefits are being paid correctly. Completion of WR with the injury employer If a worker has a wage loss upon completion of a WR program with the injury employer, the LOE benefit is based on the worker s actual earnings, regardless of the job being performed. Actual post-injury earnings are the worker's total salary remuneration from all employment (e.g., base salary from one or more jobs including production bonuses, shift premiums, overtime). A worker's post-injury annual earnings may include additional sporadic earnings and a review of the annual post-injury earnings should be considered to ensure that the appropriate benefit is paid. Completion/closure of WT plan The LOE benefit compensates workers for his or her loss of earnings resulting from the workrelated injury. The LOE benefit should be paid at the established SO earnings. The LOE benefit should not be increased if reduced earnings are related to economic conditions or the worker s choice to be under-employed. Employed in SO If a worker is employed in the identified SO with the injury employer or a new employer, the WSIB uses the worker s actual earnings to pay LOE benefits, even if the earnings are not consistent with updated labour market wage information. Published: 15 July 2011 Page 3 of 5

4 Not employed in SO but instead comparable job In some cases, a worker may return to work in a comparable job. LOE benefits may be paid based on the worker s actual earnings provided this job is comparable to the SO-identified job with similar earnings expectations. Unemployed If the worker remains unemployed at the completion/closure of the WT plan, the LOE benefits are paid using the earnings the worker would earn if employed in the SO that was specified in the WT plan. 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. In some cases, a worker may return to the identified SO but at reduced hours or lower wages than what was projected. There is a need to examine why the earnings and/or hours have been reduced. This may be due to unforseen aspects arising from the type of employment, or reflective of a probationary period, or changing work requirements/demands. If the decision-maker is satisfied that the worker is not voluntarily under-employing him/herself, then LOE benefits can be paid on actual earnings. If the decision-maker is satisfied that the worker chose to work fewer hours or at lower earnings, LOE benefits will be paid at the SO earnings established as part of the WT plan, rather than at actual earnings. Wage information used at reviews In cases where a worker is either not working or is working in the SO but is voluntarily underemployed, if the WSIB originally used entry-level wages to determine the post-injury earnings, updated entry-level wages are used mid-range wages to determine the post-injury earnings, updated mid-range wages are used. LOE benefit duration - 0% NEL In some cases, a NEL review may result in a 0% rating which indicates there is no evidence of an assessable permanent impairment. LOE benefits continue for a maximum of two weeks until the worker is notified in writing about limited entitlement. Application date This policy applies to all decisions made with respect to wage loss entitlement periods on or after July 15, 2011, for all injuries/diseases Published: 15 July 2011 Page 4 of 5

5 review schedule This policy will be reviewed within five years of the application date. Document history This document replaces dated December 1, References Legislative authority Workplace Safety and Insurance Act, 1997, as amended s 2.2, 23, 40, 42(3), 43, 44, 47(13) Minute Administrative #12, June 30, 2011, Page 489 Published: 15 July 2011 Page 5 of 5