Wednesday, December 30, 2009

Auditor General's report targets WSIB

The Auditor General's report has drawn controversy  from both worker and employer groups.  The report on one hand recommends that premuim rates for employers be increased  and coverage be provided to the entire workfore but on the other hand makes recommendations to reduce the number of new claims and criticizes increased worker benefits.  The current financial woes of the WSIB are multifaceted and while premium rates, expanded coverage, and accident prevention are steps to eliminating the current unfunded liability they are not the only avenues in this writer's view.  Good, informed, and fair decision-making from intial entitlement to LMR are also key to financial recovery and a better system.

Tuesday, December 29, 2009

72 Month Lock in Decision

I was recently told that an appeal of a 72 month lock in decision did not include a review of the suitability and availability of the Suitable Employment or Business chosen. The worker did not appeal the goal initially but after completing the 3 year course and months of job search it does not appear to be available in the local job market. The worker was also granted psycho traumatic benefits following completion of her bookkeeping program but goal was never reviewed in light of this. If the final review is to review the sufficiency or insufficiency of the Loss of Earnings paid to a worker how can this be done in isolation without again considering the availability of work? In my view a final review must look at both the availability and suitability of the goal chosen at the time of the review. Otherwise what is it's purpose?

Friday, October 23, 2009

Lump sum Payments of NEL Awards

I am often asked to comment on whether a worker should opt for a lump sum award of their NEL award. The answer is yes. While it is true that over time you will receive more by accepting a monthly payment, this is dependent on the WSIB being a viable entity, the rules remaining the same and your being alive.

As of the end of the first quarter of 2009, the Board’s unfunded liability was $12.38 billion. Due to substantial job losses, in the Province the Board lost $105 million in premiums. While they insist that the system is financially viable money to pay for claims must come from somewhere. I’m a firm believer that money in my pocket today is better than possibly nothing in the future. In addition, if you die, the NEL benefit is not transferable. Your spouse and children are not entitled to these monthly NEL payments. If you accept the lump sum you can do what you want with the money today or in the future.

Thursday, August 13, 2009

CPP and WSIB a new approach?

Writing was put on the back burner for a while so that I could reorganize the office to serve you our clients better.

The Tribunal recently decided a case involving a worker who originally sustained a mild concussion, bilateral shoulder strain, a neck injury, and a fracture of the spine. It was later determined that the worker recovered from the physical injuries but continued to suffer from a psychological injury. The worker was granted a 25% Non-economic Loss (NEL) award for this psychological impairment. The worker was also found unable to work and was granted a full FEL (Future Economic Loss Award) and was paid 100% loss of earnings.

The worker was also granted CPP disability benefits. The Board offset 100% of the CPP benefits from the FEL benefits.

Normally the Board and the Tribunal look at the nature of the medical conditions that were recognized by the Canada Pension. If CPP only considered compensable conditions then these benefits would be offset at a rate of 100% from the WSIB benefits. If however, CPP considered other conditions the offset is prorated.

So if for example the WSIB granted benefits for a back injury and found a worker permanently unemployable as a result of this condition but on the CPP application there were other medical problems contributing to the worker's inability to work such as carpal tunnel and a heart condition it is likely that the CPP benefits would be offset by only 30 to 50% rather than 100%.

In this case however, the Tribunal took a broader approach and looked at the impact of the workplace accident.

The Tribunal found that a review of the medical report in support of the worker’s CPP application, clearly related the worker’s disability to the workplace injury of January 16, 1997 and not to any other cause. They did not accept the argument that because the CPP application lists the physical conditions that WSIB had determined were resolved that they could not consider an offset. What was more important the CPP disability benefits were being paid for
the work-related injury, notwithstanding the fact that it has been granted on an organic rather
than non-organic basis.

What troubles me with this decision is that the WSIB never considered the physical injuries permanently injured as a result of the accident. So how could they continue to contribute to a person's unemployablity if these injuries were seen by WSIB to have been resolved. I hope that this case is just an anomaly. Otherwise what happens if WSIB denies initial entitlement to various injuries but CPP recognizes that the worker has ongoing problems with that denied area of injury? Certainly, those problems should be seen as non compensable.