A non economic loss award is suppose to compensate an Ontario injured worker for the pain, suffering and loss of quality of life caused by a permanent impairment. In order to receive a non economic loss award an injured worker in Ontario must suffer a permanent impairment which has a specific definition in the Workplace Safety and Insurance Act. A permanent impairment includes any physical abnormality, functional abnormality, disfigurement or psychological damage arising from the abnormality.
A physical abnormality could include the amputation of a limb. A functional abnormality deals with the loss of mobility or the inability to do things such as lifting, sitting, standing, twisting, bending etc. A disfigurement includes damage which causes significant scarring or alters the shape of a person’s face. It could damage caused by burns. Psychological damage includes depression or phobias that result from an injury.
The non- economic loss process is quite simple. Once the Workplace Safety and Insurance Board determines that you have reached Medical Maximal Recovery, that is, your condition has stabilized and not expected to get any better, the Workplace Safety and Insurance Board will determine whether or not you suffer from a permanent impairment. If the answer is yes the WSIB will send you a roster of doctors who have agreed to assess your type of condition. You must choose a doctor from this list within 30 days. You cannot choose a doctor who has previously treated you or a member of your family. If you do not choose a doctor within 30 days the WSIB will pick one for you.
Once a doctor is chosen the Workplace Safety and Insurance Board then arranges an appointment and sends you a letter telling you the date time and place of the appointment. At the appointment the doctor performs an examination. If you suffer from a physical or functional abnormality, the assessment involves measuring various angles using a special ruler. Once the WSIB receives the doctor’s report these measurements are inserted into various charts to determine the percentage of your impairment to the entire body. For example if a person amputates their entire arm the maximum percentage awarded is 27%.
The amount of your cheque is calculated as follows:
Start with the base figure of $52,156.66 for 2004. To this amount either add $1159.43 for every year you were under age 45 at the time you were injured or deduct this amount for every year you were over the age of 45 to a maximum of $75,336.07. Multiply this figure by the percentage granted by the Board.
The entire process takes approximately 6 months. If, after the assessment, you disagree with the percentage granted you can appeal the decision. If your condition worsens in the future you can ask for a re-determination. However you must wait 12 months from the original assessment and provide medical evidence that your condition has worsened.
Does the system properly compensate Ontario injured workers? No, not at all. The system is based an outdated "meat chart" created by the American Medical Association in 1990. It does not take into account the impact that an injury has on a worker - the loss of enjoyment of activities, relationships and day to day activities let alone the level of pain a worker may experience. Can something be done about it? Voice your concerns to your Members of Provincial Parliament.
Friday, May 05, 2006
Monday, February 13, 2006
New Return to Work Policies
The Workplace Safety and Insurance Board has released the draft policies with regard to the new return to work program. While the law has not changed, the Board’s interpretation of what is suitable modified work has been revised, expanded and hopefully clarified.
When Bill 99 was introduced the legislation clearly stated that both the worker and the employer had a duty to cooperate in an early and safe return to work. As a worker you were expected to contact the employer as soon as possible after the injury occurred, maintain communication throughout your recovery and impairment, and provide medical information as requested in the form of a Functional Abilities Form
Often times, employers brought workers back to work too soon in order to meet their obligation of an early return to work. When the Board introduced the changes in Bill 99, they made it very clear to the employer community that if they did not bring workers back quickly then there would be huge cost implications for them.
The Workplace Safety and Insurance Board has now recognized that returning to work too quickly is not appropriate and has tried to balance the worker’s interest and the employer’s costs. In describing suitable work they have introduced 4 new concepts- safe, productive, remunerated and sustainable. In the short term the work only has to be safe. But for longer term placements all four criteria must be met.
Interestingly while productivity is addressed the Board has not re-introduced the concept of meaningful work. The job merely has to add value to the employer but not meaningful to the worker.
The Board has also introduced the concept of timely. Which states that it does not mean immediate return to work but rather has emphasized the appropriateness of the return to work given the nature of the claim, patterns of recovery (not your personal recovery but the general population) and the ability to provide suitable work.
The other major change is in the Board’s role. When Bill 99, a model of self reliance, was introduced, you as an injured worker and your employer were to find a solution independently of the Board. Now the Board will take on a more active role in monitoring return to work programs.
While the proposed changes are intended to assist by clarifying the policy, there is still a lot of room for interpretation of the new concepts and what is in fact suitable work. It is likely that there will be more appeals by both workers and employers until it is clear what this new policy really means.
When Bill 99 was introduced the legislation clearly stated that both the worker and the employer had a duty to cooperate in an early and safe return to work. As a worker you were expected to contact the employer as soon as possible after the injury occurred, maintain communication throughout your recovery and impairment, and provide medical information as requested in the form of a Functional Abilities Form
Often times, employers brought workers back to work too soon in order to meet their obligation of an early return to work. When the Board introduced the changes in Bill 99, they made it very clear to the employer community that if they did not bring workers back quickly then there would be huge cost implications for them.
The Workplace Safety and Insurance Board has now recognized that returning to work too quickly is not appropriate and has tried to balance the worker’s interest and the employer’s costs. In describing suitable work they have introduced 4 new concepts- safe, productive, remunerated and sustainable. In the short term the work only has to be safe. But for longer term placements all four criteria must be met.
Interestingly while productivity is addressed the Board has not re-introduced the concept of meaningful work. The job merely has to add value to the employer but not meaningful to the worker.
The Board has also introduced the concept of timely. Which states that it does not mean immediate return to work but rather has emphasized the appropriateness of the return to work given the nature of the claim, patterns of recovery (not your personal recovery but the general population) and the ability to provide suitable work.
The other major change is in the Board’s role. When Bill 99, a model of self reliance, was introduced, you as an injured worker and your employer were to find a solution independently of the Board. Now the Board will take on a more active role in monitoring return to work programs.
While the proposed changes are intended to assist by clarifying the policy, there is still a lot of room for interpretation of the new concepts and what is in fact suitable work. It is likely that there will be more appeals by both workers and employers until it is clear what this new policy really means.
Thursday, June 30, 2005
Just as a number of changes were being proposed by the Minister of Labour which should improve the Workplace Safety and Insurance system the Premier DALTON MCGUINTY
shuffles cabinet and appoints Mr. Steve Peters as the New Minister of Labour.
His biography is below:
Mr. Peters was elected to the Ontario legislature in 1999.
Born in St. Thomas in 1963 to Joan and Percy Peters, both children of Ukrainian immigrants, Mr. Peters is proud of his heritage.
Mr. Peters is a graduate of Arthur Voaden Secondary School in St. Thomas and the University of Western Ontario, where he earned a bachelor of arts, majoring in history.
When Mr. Peters was first elected to St. Thomas Council as an alderman in 1988, he was employed as a stock clerk at a downtown A&P store. Mr. Peters was still working at A&P when he was elected to his first term as mayor of St. Thomas in 1991.
His election win attracted national news coverage, as he was Canada’s youngest mayor at the time. Mr. Peters was re-elected mayor with massive majorities in both 1994 and 1997. As mayor, Mr. Peters served on all city committees and many outside boards and agencies.
Mr. Peters was appointed as the disabilities critic in June of that year and moved to the agriculture portfolio in September 2000.
When not hard at work for his constituents, Mr. Peters enjoys gardening and pursuing his other passion, local history. Mr. Peters is considered one of the foremost experts on Elgin County history and is a collector of Elgin memorabilia, notably items associated with Jumbo, the giant circus elephant that was struck and killed by a train in St. Thomas in 1885.
shuffles cabinet and appoints Mr. Steve Peters as the New Minister of Labour.
His biography is below:
Mr. Peters was elected to the Ontario legislature in 1999.
Born in St. Thomas in 1963 to Joan and Percy Peters, both children of Ukrainian immigrants, Mr. Peters is proud of his heritage.
Mr. Peters is a graduate of Arthur Voaden Secondary School in St. Thomas and the University of Western Ontario, where he earned a bachelor of arts, majoring in history.
When Mr. Peters was first elected to St. Thomas Council as an alderman in 1988, he was employed as a stock clerk at a downtown A&P store. Mr. Peters was still working at A&P when he was elected to his first term as mayor of St. Thomas in 1991.
His election win attracted national news coverage, as he was Canada’s youngest mayor at the time. Mr. Peters was re-elected mayor with massive majorities in both 1994 and 1997. As mayor, Mr. Peters served on all city committees and many outside boards and agencies.
Mr. Peters was appointed as the disabilities critic in June of that year and moved to the agriculture portfolio in September 2000.
When not hard at work for his constituents, Mr. Peters enjoys gardening and pursuing his other passion, local history. Mr. Peters is considered one of the foremost experts on Elgin County history and is a collector of Elgin memorabilia, notably items associated with Jumbo, the giant circus elephant that was struck and killed by a train in St. Thomas in 1885.
It was only at the beginning of this month that Mr. Bentley announced firm deadlines for Next Steps in Workplace Safety. These steps included recommendation in Return to work/Labour Marker Re-entry, faster decsion making, independence for workers with regard to payment options and simplification fo the forms and rules.
For those who have been waiting for their decisions while suffering from their injuries and the serious financial impact of the delays I hope that Mr. Peters will continue on this course quickly.
CPP Offsets and Loss of Earnings
If you are in receipt of Canada Pension Benefits and Workplace Safety and Insurance Benefits there are new policies which affect you. Currently, the Board offsets 100% of CPP benefits received by the worker or their survivor for the work related injury. This has been the approach for individuals who receive either 100% loss of earnings benefits from the Board or partial loss of earnings benefits from the Board. Often times those who were granted partial benefits from the Board and also were receiving CPP benefits would not be paid any compensation because of the offset. This was certainly not fair.
The Board has now adopted a new formula so that the portion of the CPP benefits which exceeds the deemed earnings amount will be added to worker's post injury earnings. While the Board will continue to deduct 100% of CPP benefits which relate to the compensable injury from individuals who receive 100% benefits the new rules for those who have been deemed by the Board to have some earning capacity should be fairer.
The Board has now adopted a new formula so that the portion of the CPP benefits which exceeds the deemed earnings amount will be added to worker's post injury earnings. While the Board will continue to deduct 100% of CPP benefits which relate to the compensable injury from individuals who receive 100% benefits the new rules for those who have been deemed by the Board to have some earning capacity should be fairer.
Monday, February 21, 2005
WIN WSIB APPEALS
Have you been denied WSIB benefits? Keep reading to learn how you can Win WSIB APPEALS. The following information will guide workers in dealing with the WSIB and win their WSIB appeals.
If you do not agree with the WSIB’s decision, you do have the right to appeal WSIB decisions. But keep in mind that there are time limits to appealing a decision. The majority of decisions are subject to a 6 month time limit but those involving Labour Market Reentry Programs or retraining must be filed within 30 days. The appeals must be in writing and be sure to put the date at the top of the letter with your return address. A short letter will suffice. Often times long appeal letters are confusing and not completely read. In addition, if you are angry, you may end up saying something you may regret or could damage your case. You should identify the issue you are appealing, for example - initial entitlement, ability to work, Non economic loss award and the date of the adjudicator’s decision. You should also request a full copy of your claim file. Keep a copy of the letter for your records.
The next step is to review the entire file. Every WSIB claim or appeal requires good preparation and presentation. Often times the medical evidence is key. The questions you should ask yourself include:
1. Is there medical evidence that deals with the causation of the disability? Is the evidence convincing or does it use words like "may be caused", "could be caused by" or simply does not comment on the cause of the injury?
2. Does the medical evidence identify a diagnosis? Are there conflicting opinions about the diagnosis?
3. Is there evidence that the medical problems have been continuous or are
there gaps? Make sure that all specialist reports, physiotherapy, chiropractic and family doctor records are in the file. Dates of every health care visit relating to the claim should be recorded and in the file.
4. Does the medical evidence explain or show that you did not have prior problems with preexisting conditions?
5. Do the medical reports agree about the facts of the disability?
6. Is the medical evidence based on subjective or objective findings? Decision makers prefer an opinion of a specialist to a generalist. They also prefer to see indications in the report the physician examined the worker thoroughly and contains more substantial evidence of objective signs in support of its opinion. Therefore a note with states "back pain, unable to work, will reassess in 3 weeks" will normally be given little or no weight.
Get better medical evidence if you need it. Remember quality counts, not quantity.
The next step is to identify any other missing evidence. Think of the best source you have to prove your point- a witness, a document, a photograph, or a diagram. If the issue is the type of work you were performing maybe the union or the company has a job description or physical demands analysis.
Once you’ve assessed the evidence, consider your theory. Think of the central point of your case. "Keep it simple stupid" (KISS) is a rule that I always go back to it helps to focus on theory. If you provide too much information this may only confuse the decision maker. Remember your job at the hearing is to prove your theory. Do you have all the facts or evidence necessary to convince the listener of your point of view? If not you still have some work to do.
The presentation of your case at the hearing is also important. Never assume that essential facts are understood. State them and know what you are going to say ahead of time. Stick to your theory and prepare a road map. Take the decision maker thru a logically developed presentation from beginning to end. Often times a short focused presentation is more effective that spending hours going thru the information. Remember the decision maker has read the file.
Going thru these simple steps will ensure that the issue is stated, the facts are established, and that your reasons are explained. If you follow these steps it help you win WSIB appeals.
If you do not agree with the WSIB’s decision, you do have the right to appeal WSIB decisions. But keep in mind that there are time limits to appealing a decision. The majority of decisions are subject to a 6 month time limit but those involving Labour Market Reentry Programs or retraining must be filed within 30 days. The appeals must be in writing and be sure to put the date at the top of the letter with your return address. A short letter will suffice. Often times long appeal letters are confusing and not completely read. In addition, if you are angry, you may end up saying something you may regret or could damage your case. You should identify the issue you are appealing, for example - initial entitlement, ability to work, Non economic loss award and the date of the adjudicator’s decision. You should also request a full copy of your claim file. Keep a copy of the letter for your records.
The next step is to review the entire file. Every WSIB claim or appeal requires good preparation and presentation. Often times the medical evidence is key. The questions you should ask yourself include:
1. Is there medical evidence that deals with the causation of the disability? Is the evidence convincing or does it use words like "may be caused", "could be caused by" or simply does not comment on the cause of the injury?
2. Does the medical evidence identify a diagnosis? Are there conflicting opinions about the diagnosis?
3. Is there evidence that the medical problems have been continuous or are
there gaps? Make sure that all specialist reports, physiotherapy, chiropractic and family doctor records are in the file. Dates of every health care visit relating to the claim should be recorded and in the file.
4. Does the medical evidence explain or show that you did not have prior problems with preexisting conditions?
5. Do the medical reports agree about the facts of the disability?
6. Is the medical evidence based on subjective or objective findings? Decision makers prefer an opinion of a specialist to a generalist. They also prefer to see indications in the report the physician examined the worker thoroughly and contains more substantial evidence of objective signs in support of its opinion. Therefore a note with states "back pain, unable to work, will reassess in 3 weeks" will normally be given little or no weight.
Get better medical evidence if you need it. Remember quality counts, not quantity.
The next step is to identify any other missing evidence. Think of the best source you have to prove your point- a witness, a document, a photograph, or a diagram. If the issue is the type of work you were performing maybe the union or the company has a job description or physical demands analysis.
Once you’ve assessed the evidence, consider your theory. Think of the central point of your case. "Keep it simple stupid" (KISS) is a rule that I always go back to it helps to focus on theory. If you provide too much information this may only confuse the decision maker. Remember your job at the hearing is to prove your theory. Do you have all the facts or evidence necessary to convince the listener of your point of view? If not you still have some work to do.
The presentation of your case at the hearing is also important. Never assume that essential facts are understood. State them and know what you are going to say ahead of time. Stick to your theory and prepare a road map. Take the decision maker thru a logically developed presentation from beginning to end. Often times a short focused presentation is more effective that spending hours going thru the information. Remember the decision maker has read the file.
Going thru these simple steps will ensure that the issue is stated, the facts are established, and that your reasons are explained. If you follow these steps it help you win WSIB appeals.
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