Loss of Retirement Income Benefit Changes

The Workplace Safety and Insurance Board sets aside funds to replace a worker's lost retirement income if a worker has received loss of earnings (LOE) payments for 12 continuous months. The funds equal 5% of the amount of every subsequent LOE payment. You can also contribute an additional 5% of your benefits to the fund.

When you reach the age of 65, you are to receive the Loss of Retirement Income (LRI) benefit. The amount of the LRI benefit is the sum of the mandatory contributions, the voluntary contributions and the accumulated investment income.

The Board has increased the monetary threshold of when they pay a lump sum amount. If the Loss of Retirement Benefit equals a payment amount of less than $3000 per year, your benefit will be paid as a lump sum. If the amount of the benefit is more than $3000 per year you cannot take the money out as a lump sum. You will be given a choice of 3 payment schemes and different investment options. You should carefully consider the consequences of the choices and their impact on your estate.

WSIB Required to Provide Explanation of Benefits Calculations

IAVGO made a complaint to the Fair Practices Commission regarding the Board's lack of co-operation in providing an explanation of benefits calculations, particularly in complex retroactive awards. Many worker representatives have battled with the Board over the years, trying to get individual claims adjudicators to provide an explanation for benefits in cases where the injured worker received retroactive benefits on appeal. As a result of the Fair Practices Commission's intervention, a protocol has been established within the Board for dealing with such explanations.
In a letter dated January 31, 2008 to Judy Kondrat of IAVGO, Fair Practices Specialist Janice Sandomirsky outlined the following:

" Claims Adjudicators have been reminded that they are expected to be proactive in providing payment explanations in all cases. All verbal payment explanations are to be followed up in writing. A detailed written explanation should always be provided in cases involving a complex payment. Examples of complex payments include:

• Retroactive payments


• Reviews/adjustments of benefit payments


• Minimum or maximum benefit payments


• Partial benefit payments


• Recalculations of average earnings


• CPP/QPP offsets

The written explanation will identify the type of benefit included in the payment(e.g. loss of earnings, interest, arrears, diversion for assignments, court orders), the average earnings basis and the payment period of each benefit paid.

Where there is a request for clarification of the benefit payment calculation, the Claims Adjudicator is expected to contact the Payment Specialist who will place a memo on the file outlining the calculation of the benefit payment in question. It is anticipated that the Claims Adjudicator will respond to the clarification request within three days. In exceptional cases, such as pre-1990 or non-imaged claims, it may take up to two weeks for the Payment Specialist to produce the memo. The Claims Adjudicator will advise the requester in writing about the delay and provide a time frame for a response.

If there are questions that require additional assistance/clarification, the Claims Adjudicator is expected to obtain guidance from his/her Manager, and , if necessary, the Payment Specialist Manager. "

The complex payment review also involved the creation of documents on payment terms and definitions, some sample letters, suggested payment criteria paragraphs, effective writing tips, plain language advice, grammar and spelling tips, and clear language reference tools.

This article has been reproduced with permission from Judy Kondrat of the Industrial Accident Victim's Group of Ontario (IAVGO). Kudos go out to Judy and IAVGO for their great work!

ODSP and Interest on Payments for Pain and Suffering

A recent case the Ontario Superior Court of Justice held that damages or compensation for pain and suffering including interest is considered to be exempt income for the purpose of calculating a person's entitlement to disability benefits.

The case is Mule v. Ontario Disability Support Program 88 O.R. (3d) 326. ODSP initially decided that the part of the settlement representing prejudgement interest did not constitute "damages or compensation for pain and suffering as a result of injury" and therefore it was to be included in applicant's income in their application for disability benefits. The applicant appealed this decision. In making their decision the court looked at the meaning of the word "for".

They stated that the most appropriate meaning to give to the word"for" in this context was "having a reason or cause". The court indicated that the interest was dependent on the entitlement to damages. The interest paid could not exist independently it formed part and parcel of the award for damages or compensation. Therefore, the interest was to be exempted from income.

This case is also relevant in the WSIB context. It applies to those individuals who are receiving ODSP benefits and who receive a non economic loss award together with interest.

Help for your return to work

If you, as a worker, are concerned that the modified work offered is not consistent with your functional abilities you can request an ergonomic assessment to see if the work is in fact suitable. An ergonomist is someone who has studied human capabilities in relationship to work demands. Information derived from ergonomists contributes to the design and evaluation of tasks, jobs, products, environments and systems in order to make them compatible with the needs, abilities and limitations of people. They examine the workplace with the goal of reducing worker fatigue, discomfort and injury.



An ergonomist will be able to objectively assess the proposed working conditions and determine if they are consistent with the your restrictions and relay their findings and recommendations to you, as the worker, the employer and the WSIB . It is important for you to be present with a representative at the assessment, so that the ergonomist can view how you, not a co-worker, performs the tasks. Having a representative present allows you to voice your concerns or correct any misinformation provided. Factors such as posture and stature can be very relevant to the final recommendations.



An ergonomic assessment can be particularly helpful in cases where the relationship between the worker and employer have become strained, creating difficulties in the return to work process.

Canada Pension Disability Changes

One of the requirements to qualify for Canada Pension disability benefits is to have made enough contributions into the plan while you were working. You need to have made enough contributions in at least 4 of the last 6 years.

Canada Pension Plan recently introduced a change to this rule that will benefit individuals who made contributions for more than 25 years. Applicants with 25 or more years of contributions into the plan now only need to have made contributions in 3 of the last 6 years. This change applies to all applications received on or after March 3rd, 2008.

All applicants must still meet the second criteria which is: that they suffer from a severe and prolonged disability.

This change will benefit those that have been seriously injured or suffer from a serious illness or disease later in life causing them to lose time off work.

Preferred Suppliers for Health Care Equipment

Effective March 3rd, 2008 the WSIB will require workers to purchase approved health care equipment and supplies from a list of three preferred suppliers. The suppliers are Medical Mar, Motion Specialites and Shoppers HomeHealthCare. All three preferred suppliers provide home delivery and set up for workers who are unable to get to the store or do not have a store in their community.

Injured workers will no longer have to pay out of their pocket and wait to be reimbursed. Instead, the medical suppliers will submit the bills to WSIB and they will be reimbursed directly. The supplies will still require a prescription and pre-approval from WSIB. This policy does not apply to prescription drugs.

The Board has provided a list of products that are covered on its website. If you have any questions regarding this policy and the new procedures we encourage you to contact your nurse case manager.

Court Quashes WSIAT Decision

The Divisional Court recently reviewed a decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) concluding the calculation of earnings decision was correct in an employer’s contributions to health and pension plans are excluded from the worker’s pre-injury earnings. The Board had determined that the earning’s basis do not include these payments. The worker applied to the Tribunal to have these employer’s contributions included in the earnings. The request was denied. The Vice-Chair of the Tribunal found that “the contributions were not earnings within the meaning of s.2 of the Workplace Safety & Insurance Act”.

The Court reviewed the Tribunal’s decision and indicated that the Vice-Chair failed to take into account the legislative history of the applicable provisions and the government’s explanation for various amendments to the Worker’s Compensation Act. The failure to consider this and to assess its overall weight in the context of the facts and law rendered the decision “patently unreasonable”.

The Court made the following statement: “The Vice-Chair purported to follow Board policy but it’s unclear whether the Board was aware or considered this legislative history and explanation in formulating its policy on employer contributions. What is striking in this case is the total failure by either the WSIB or WSIAT to take the legislative history and the government’s explanatory purpose into account in any way”. The Vice-Chair was engaged in an exercise of statutory interpretation and she considered a variety of factors in determining the purpose of the statutory provision and nature of the law. While the Court did indicate that the Vice-Chair erred in failing to consider the legislation, they did not conclude that an injured worker’s earnings should in fact include pension contributions paid by the employer. The Court instead set aside the decision and referred the decision back for a re-hearing. This result is pending. The Tribunal has been directed by the Court to consider the legislative history however, the amount or weight that the Tribunal will give this information is entirely up to the Tribunal. In the end, this may not change the law and result may remain the same and employer’s contributions to pension benefits may never be found to form part of the worker’s pre-injury earnings.

New Program of Care for Lower Extremity Injuries

The Workplace Safety and Insurance Board has now introduced a new program of care for Lower Extremity Injuries. The program is designed for workers who have been diagnosed with acute ankle sprain, an anterior knee injury with patellar tendinopathy, patellofemoral syndrome or a reocurrence. The Board describes the new program as an "experience based health care delivery plan that describes treatments shown to be effective for workers" diagnosed with these conditions.



The objective of the program is to:


" - facilitate early, safe and sustainable return to work

- resolve or reduce clinical signs and symptoms

- improve or restore strength and endurance with an intent to return to pre-injury function

- prevent chronicity

- achieve satisfaction with the quality of care among workers and other stakeholders "


This is the seventh program of care introduced by the WSIB. Other more common programs that workers may be familiar with include; the back and upper extremity program.


The programs of care have been useful in expediting injured workers to specialists in order to determine the nature and level of impairment. Unfortunately, in my experience if the issue is initial entitlement, the physicians are not asked to comment on compatibility of the injury to the duties being performed or the suitability of modified work. This type of information in my humble opinion could assist in the Board's decision making process.

WSIB Advertising Campaign

Well after attending a local business function last night I thought I'd finally add my 2 cents. While I can appreciate that the Workplace Safety and Insurance Board has a manadate to prevent accidents I am of the personal opinion that the recent advertising campagain is not appropriate.

The premise of the campaign is that there are no accidents. Well, as it turns out - there are. An accident is defined as a chance event with undesirable consequences. This is one of the definitions even accepted by WSIB. It implies that it is not preventable. Sometimes things happen. The other night I was driving home and it became extremely icy and slippery on one section of the road - it was entirely unexpected and unpreventable. Snow plows cannot be everywhere at the same time ensuring that the roads are safe. Even driving at a slow speed (40km/hr)could not have prevented what happened next.... The point is accidents do happen!


The next problem is that the advertising is too graphic, distasteful and does not portray reality. Just look at the WSIB's year end report and statistics. I'm sure most have seen the TV ad where there is an explosion and the worker falls out of a 4th floor window. Well after 20 years working in this area of law I have yet to see or hear this fact situation happen. In fact the number one reported injury in this province last year was a sprain or a strain. In our community and the claims that I see in my office the majority involve repetitive work. These types of incidents are more easily preventable by providing ergonomic workstations, incorporating proper lifting techniques or lifting devices, rotation of jobs, fatigue mats, proper tools... I could go on but I'm sure you get the point. The WSIB instead of helping the public- workers, unions, supervisors and employers learn ways to prevent these more common injuries has decided to sensationalize the Workplace accident. Most people can distinguish sensationalization from reality. We can distiguish war from an action movie. We don't take the action movie seriously and my belief is that we, as a society. won't take the WSIB ads seriously. Why? Because it just doesn't happen that way in real life.

Maybe its time for the WSIB to get a reality check!

Benefit Rate Changes effective January 1, 2008

By now you may have noticed an increase in your WSIB cheque which you receive and were wondering whether it was correct. Here is an explanation to help you decide if the amount you received is correct:

The clothing allowance benefit has been increased by 2.5%.

The Independent Living Allowance, Personal Care Allowance and the Guide & Support Dog Allowance were increased by the Consumer Price Index or 2.5 %.

The Personal Care Allowance(general rate) and the Non-Professional Escort fee was increased to $8.75 per hour.

For accidents after January 1, 1998, the monthly benefits cheques are recalculated on January 1 every year. The WSIB establishes a schedule of Net Average Earnings (produced by Actuarial Services and distributed by the Communications Division) for all levels of earnings up to the statutory maximum which reflects current rates for income tax, EI premiums, and CPP/QPP premiums in accordance with s.55 of the Workplace Safety and Insurance Act (the Act). The schedule is conclusive and final.

Board must pay for Medical Marijauna

In decision 2007/07 the Workplace Safety and Insurance Appeals Tribunal approved the worker's reimbursement for medical marijuana.

The Workplace Safety and Insurance Act specifically outlines in Section 33 (1):

"A worker who sustains an injury is entitled to such health care as may be
necessary, appropriate and sufficient as a result of the injury and is entitled to make the
initial choice of health professional for the purposes of this section. "

In his decision the Vice Chair of the Tribunal stated:

"In my view, that the Board’s decision to deny this particular aspect of the worker's
claim is based more on a general reluctance to consider marijuana as a legitimate alternative to
more traditional pharmaceuticals in the treatment of pain, than it is on any consideration of
whether this type of treatment might be of value to the worker."

In this case the worker was awarded a 30% Non economic Loss award for his low back injury. The medical evidence supported that the worker continued to have ongoing significant symptoms of pain in the back and lower extremity. All conventional forms of treatment were exhausted and ineffective.

Each case must be dealt with on its own merits and the Vice Chair noted that the wording of Section 33 is broad and provides the Board and the Tribunal with a significant discretion in determining the type of health care which may be necessary in a particular case. Equally broad discretion was noted in the Board's policy. The Board's policy lists types of health care benefits but also includes "such measures to improve the quality of life of severely impaired workers". While the policy does not define a "severely impaired worker", the Vice Chair placed significant weight on the fact that Health Canada approved access to marijuana.

The legislation governing Health Canada allows marijuana to be prescribed to individuals who suffer from " grave or debilitating illnesses, where conventional treatments are inappropriate or not providing adequate relief". After reviewing the medical information and the grounds for access to marijuana by Health Canada, the Vice Chair was satisfied that this worker can be described as “severely impaired” as a result of his compensable back injury. The request was not being made by the worker to support a habit but for pain relief.

The Vice Chair held that there was sufficient discretion in both the legislation and policy and granted the reimbursement for the cost of marijuana.

Another small but positive step for injured workers.

Closed Company allowed to Participate at Tribunal

An employer which had closed its business had requested standing to participate in a worker's appeal. The Tribunal found that the employer should be allowed to participate in the appeal. The fact that the employer did not have a financial interest in the outcome of the appeal was not a relevant consideration in relation to the question of whether the employer could participate in the appeal. It is common for employers to participate in appeals in which they do not have a
financial interest.

The case involved an occupational disease case and the Tribunal was of the view that these cases usually involve technical and complex evidence. Therefore, the participation of the employer on whose premises the alleged exposure took place is very likely to be of assistance to the Panel.

This case follows the line of reasoning set out in other cases. Workers should never assume that just because the 3 year NEER window has passed whereby an employer's premiums are not impacted by the results of an appeal that an employer will not participate in an appeal.

Fair Practices Commission

If you're having problems with the WSIB then you should consider filing a complaint with the Fair Practices Commission. The Fair Practices Commission is the organizational ombudsman for the Workplace Safety and Insurance Board. They investigate complaints about the service you are receiving from the WSIB. It could be an issue concerning the length of time it is taking to issue a cheque or a decision, the attitude of a Board employee or a decision making process.

The Commission also tracks complaint trends, identifies systemic issues and recommends improvements to the WSIB. It's another voice for the stakeholders on major systemic problems with the WSIB system.

Filing a complaint with the Commission can be effective. If you're having difficulties with the WSIB look into the Fair Practices Commission you may be pleasantly surprised at the results you get from the WSIB.

WSIB and Heart Attacks

There is a presumption under the Board policy that if an accident occurs at work it occurs in the course of employment. This holds true for heart attacks. Even though certain risks factors may exist such as high blood pressure, being overweight or smoking, if an individual does not have any preexisting heart conditions the Board is to examine the circumstances surrounding the heart attack. A worker that was engaged in any type of overexertion at the time of the heart attack or death should be granted benefits despite the preexisting risk factors. If the Workplace Safety and Insurance Board (WSIB) fails to grant benefits this issue is certain worth a review and appeal to the Workplace Safety and Insurance Tribunal (WSIAT). See tribunal cases 851/91, 339/87, 244/87.

Separation and Divorce - The Impact on WSIB benefits

The question of whether WSIB benefits, a pension and supplementary benefits (now replaced by NEL and LOE benefits) should form part of net family property in an equalization on separation or divorce was reviewed by the Court of Appeal in the case Lowe v. Lowe. The Court determined that WSIB payments should not be included in the calculation since they are exempted from the definition of property. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages are exempt under the Family Law Act. It is clear that a pension or NEL award would fall within the exemption. It is an award to compensate for the pain and suffering and physicial or mental injury.

In determining whether the monthly benefit is to be included the Court looked at the case of Brice v. Brice. The case stated "It seems to me preferable from the perspective of clarity and predictability to treat all disability benefits the same whether they are calculated strictly in terms of lost income or as compensation for impairment to earning capacity. However, as I have already indicated, disability payments that form part and parcel of an employee pension benefit plan may be on a different footing. In the end, the central point is that disability benefits represent income replacement and, from the perspective of family property and spousal support, are more appropriately treated on the same basis as income for employment."

As a result the Court of Appeal determined that WSIB benefits were not part of the calculation for net family property.

WSIB Report Card

I was reviewing some information for a case, when I came across a letter send by then Interim WSIB Chair Jill Hutchenson to the Minister of Labour dated September 30, 2005. The letter made a number of recommendations for further improvements to the system both legislative and policy in the following areas:


1. Return to Work

2. Labour Market Re-entry

3. Deeming of Loss of Earnings Benefits

4. Faster Decision Making

5. Independence for Workers

6. Simplification of Process



Let's see how they have done.



1. Return to Work

Implementation was Scheduled originally for early 2006 we are still waiting for the new policies and I don't expect to see anything soon. Last information update estimated one more year. Grade: Fail



2. Labour Market Re-entry

The LMR plan was to be coordintated with the Return ot Work policies but nothing has been done to make any improvements to the basic need to have meaningful plans that are matched to real jobs that are available. I have seen too many plans that are doomed to fail from the start. Plans need to be realistic given the workers age, academic abilities, all physical and psychological restrictions, both compensable and non compensable. The plan must provide skills that are transferrable and matched to a job that exists in the worker's market area. There is no point in paying thousands for a private college program when the job market demands a University degree to be even considered for a position. The Board needs to stop promising change and act now. Grade: Fail



3. Deeming of Loss of Earnings Benefits

Changes were announce in the recent provincial budget. Hopefully the act gets passed soon. Grade: Provisional Pass



4. Faster Decision Making

After a summer of changing adjudicators and restructuring I have yet to see the faster decision making process. In fact things seem to be slower. Phone calls are still not being returned and implementation of appeal decisions and issuance of cheques is more often a new saga. Promises are fruitless time to see some results. Grade: Fail

5. Independence for workers


While changes have been proposed to provide a 2 1/2% increase to workers this will not create financial independence for these workers. Too little too late. The system must keep up with the cost of living. The de-indexation of benefits in 1985 caused a serious inequity that still has not been corrected. Grade: Fail



6. Simplification of Process


Forms have been redesigned including the Form 7, 8 and the Functional Abilities Form. Now the question which remains is whether the forms work and provide sufficient information to streamline the process. Grade: Pass

New Return to Work Policies

Well the second round of consultations is done but the end is nowhere near. We were all hoping to see a final draft of the Workplace Safety and Insurance Board's final return to work policies sometime this summer. This will not be happening. The best estimate is about a year. they need time to review the submissions, evaluate the pilot projects and make further changes. So what's the next step? If I were a betting person I would have to a say a third draft?
Keep you posted.

Worker Granted Relief where Representative Fails to File WSIB Appeal within Time Limits

If you have been left high and dry by some unsavory representative and you have missed your limitation periods there have been recent developments at the Tribunal which may benefit you.

The Tribunal has allowed a reconsideration of a decision that denied the worker’s request for a time limit extension to appeal an ARO decision. The reconsideration was granted largely because of the egregious conduct of his former representatives, both of whom were fee-for-service consultants.

The second representative took 18 months to make the application for a time limit extension to the Tribunal. The Tribunal denied thsi request on the basis that poor representation is not a ground on its own to grant a time extension unless there were some other exceptional circumstances. The worker had not acted diligently in pursuing the matter, given that the time limit extension request was dated March 16, 2001 and the expired time limit was December 29, 1998.

The worker retained a lawyer and asked for a reconsideration of this decision based on an affidavit of his intent to appeal from the ARO decision within the 6 month time limit. This new evidence was found credible and a new hearing was ordered.

Based on the new information presented the Tribunal concluded that the first representative had actively misrepresented to the worker and the second representative had failed to implement the worker’s instruction to file a time extension application in a timely manner, either through her negligence or her misunderstanding.

This approach is consistent with other Tribunal decisions that found “that where a representative through active misrepresentation or some other misleading conduct has actually thwarted a worker’s efforts to pursue his or her appeal, the worker’s request for a time extension should be granted” So long as the worker acted diligently “in the context of what could be reasonably expected of an unsophisticated person with a limited education, limited understanding of the appeals process and very little ability to communicate in the English language” a extension should be given. In addition, the employer's interest must be examined and whether they would be prejudiced if the time extension were allowed. As well, the Tribunal looks at whether the case is so old that it cannot be adjudicated on its merits. Where these criteria have been met then an extension of time has been granted.

If you are in this situation be sure to contact a lawyer.

WSIB and Mandatory Retirement

As of December 12, 2006 Ontario workers will not longer be required to retire at the age of 65.

So what impact will this have on Workplace Safety and Insurance Law Benefits or Workers Compensation? Unfortunately none!

The Board is exempt from the changes to the Human Rights code so if you are working and are older that 65 you will only be entitled to a maximum of 2 years of loss time benefits. For more details check out the Workplace Safety and Insurance Board's website at: www.wsib.on.ca/wsib/wsibsite.nsf/LookupFiles/PolicyQAOlderWorkers/File/PolicyQAOlderWorker.pdf . With an ever aging workforce this is entirely unfair and I would suggest unconstitutional. What is the difference if a 20 year old is injured or a 67 year old. Both are losing income. Both should be adequately compensated for their losses. People are working more and more later in life and surely they are entitled to equal coverage.

In this writer's opinion a constitutional challenge is awaiting these provisions.

Fair Practices Commission Annual Report Released


The Fair Practices Commission’s Annual Report for 2005-2006 has recently been released. The Commission has received 3,000 complaints in the two and a half years it has been operating. The Commission handles complaints individually, but looks for systemic issues to bring forward to the WSIB. The Commission is independent from the WSIB, with the commissioner reporting directly to the WSIB’s board of directors through the WSIB’s chair.

The report noted a number of systemic issues currently being addressed by the Commission with the WSIB We’ve highlighted some of the ones we think are more important to you . These are:

Managing Mail – mail and faxes were not being delivered to managers (and therefore not being acted on) and mail and faxes were lost and not scanned to file.

Standards for Specialist and Advisory Services – delays in initiating internal referrals to investigators, ergonomists and return-to-work mediators which, in turn, result in delays in adjudication.

Step-by-step Adjudication – delays in decision-making resulting from making referrals needed to make the decision in a step-by-step manner. For example, rather than initiating a referral to an investigator, an ergonomist and a medical consultant at the same time, the adjudicator does them one at a time and waits for the results from each specialist before making the referral to the next. This can cause unnecessary delays in the adjudication of the claim.

Expense Payment Processing – many workers complained to the Commission about delays in reimbursement for health care and travel expenses.

The Commission received 1,633 complaints for the reporting period April 1, 2005 to March 31, 2006. Workers accounted for 81% of the complaints. Employers and their representatives accounted for 5% of the complaints made and the remaining 5% came from various sources including WSIB staff who are injured workers, service providers, the commission’s own motion, anonymous, and other. A third of complaints were about adjudication and almost half were about benefits.

If you are experiencing delays or other systemic difficulties consider filing a complaint.