A Emmink Professional Corporation, Workers' compensation claim services

WSIB Loss of Earnings (LOE) Reviews - Its all in the Timing!
In 1998, the former Worker's Compensation Act was replaced with the new Workplace Safety and Insurance Act (WSIA). Amongst the numerous new provisions was one that limited the power of the Workplace Safety and Insurance Board (WSIB) to review a worker's loss of earnings.

Section 44 of the new WSIA stipulates that the Board "shall not review the payments more than 72 months after the date of a worker's injury."

This means that if a worker suffers a work-related loss of earnings after the six-year anniversary of their injury, the WSIB is unable to determine what the loss is and compensate the worker for it. However, in a somewhat perverse application of the legislation, the WSIB is equally unable to review claims where a loss of earnings existed at the 72-month point, after that point passes. This means that if an injured worker is in receipt of a full LOE benefit at the six year point, the WSIB may not review it; the LOE benefit is then "locked in" to age 65, even if the worker returns to work in the 73rd month after the accident.

There are only two circumstances where the "lock-in" may be set aside and a further review conducted.

. If, before the 72 month period expires, the worker failed to notify the WSIB of a material change in circumstances or has engaged in fraud or misrepresentation in connection with his or her claim for benefits, or
. If the worker has a permanent impairment and there is a deterioration that results in an increase in the worker's Non Economic Loss (NEL) benefit.

The WSIB may also defer a final LOE review if the worker is, at the tim of the review, engaged in a Labour Market Re-entry Program (LMRP).

Clearly, Section 44 as it stands is capable of causing inequities - both in terms of under and over-compensation. The first claims affected reached the six year mark in January of 2004. No doubt it will spawn a flood of new appeals to the already-overburdened Workplace Safety and Insurance Appeals Tribunal. One case that is sure to end up there, is a client who, at the time of the 72 month review was engaged in a gradual return-to-work program. At the time, he was working half days with the accident employer, with the objective of gradually increasing his hours to a full 10 hour shift. In an astounding display of administrative sleight-of-hand, the WSIB declared that the gradual return to work program was really a LMR program, and used that to defer the final LOE assessment until our client returned to working full hours. The same week he returned to full hours the WSIB carried out the final LOE review and lo and behold, there was no loss of earnings! The "$0.00" loss of earnings is now locked in.

Unfortunately, our client was unable to continue working the full hours, and is now off work completely. Because of Section 44, he is not entitled to any further WSIB benefits, and must now claim under his employer's long term disability insurer.

To fully appreciate the absurd nature of Section 44, consider the case of two police officers injured in a high-speed pursuit. Officer A suffers a neck strain, and officer B, a torn knee ligament. As it happens, at the 72nd month after the injury, officer B undergoes a second surgery for his knee. He happens to be off work for the surgery at the 6th anniversary date of his accident. As a result, the WSIB is unable to review his loss of earnings again when he returns to work. His full LOE benefit is locked in to age 65, even though he is again receiving his full wage from his employer.

But then consider what happens when officer A suffers a recurrent bout of neck problems in the 73rd month post accident. This leads to further medical investigation and ultimately, surgery in the 75th month post accident. Because he was not incurring any loss of earnings at the 6th anniversary of his accident, the WSIB cannot consider his loss of earnings for the surgery and recovery period.

Two officers, both injured in the same accident, both requiring further medical care and off work within a matter of weeks of one another. One receives income replacement benefits; the other does not.

Is this equitable legislation?
It seems to me it serves neither the worker nor the employer community very well. One wonders, though, what impact the legislation had on the WSIB's unfunded liability (that is, the amount by which its financial obligations for current claims exceed the assets it has to pay out those obligations). Presumably, an exposure to future claim costs that is limited to a six year period as opposed to age 65, can only have a beneficial effect on the WSIB's debt. But then, I'm not an actuary.