Time Limits

The Workplace Safety and Insurance Act requires that all cases be dealt with within specific time limits. It is extremely important that workers meet the time limit restrictions. If a time limit is not met than a worker may lose the right to challenge an unfavourable decision or even collect benefits.



Filing a Claim


If you are injured at work you must file a claim with the Board within since months of the injury. While you may not think that the accident is significant at the time o injury, a problem could develop in several months or years. If you do not file a claim with the Board you may lose rights to future benefits. A claim should be filed using a Form 6. These are readily available from your employer or the Board.


Labour Market Re-entry Plans


If you disagree with the labour market re-entry plan proposed by the Board you have 30 days to appeal. If you believe that the program or proposed job is or may be too physically demanding or the wage level does not approximate your preinjury earnings, you must appeal the Board’s decision in writing within 30 days of the date of the Board’s decision letter. This time limit is strictly adhered to and some Appeals Resolution Officers will not let you argue the goal was not suitable unless it was properly appealed at the outset.


Other Decisions


All other decisions made by the Board must be appealed within 6 months. This includes decisions concerning but not limited to:


• initial entitlement


• recurrences


• loss of earnings benefits (formerly Future Economic Loss benefits)


• earnings basis


• non cooperation




You’ll be advised of the Board’s decision in a letter, which will also state the time limit and procedures or appealing the decision. If you wish to appeal you must do so in writing within 6 months of the date of the letter.


An appeal from an appeals resolution officer’s decision is also subject to a 6 month limitation period. The appeals resolution officer’s decision is the final decision of the Board and can be appealed to the Tribunal.




What if I’m not ready to proceed immediately with an appeal?


First, upon receipt of the Board’s decision, you need to decide if you in agreement with the outcome. If you disagree with the Board or may disagree in the future, (such as the LMR goal) you must notify the Board in writing that you wish to appeal within the specified time limits.


If this is done within the required time limit, you will receive a letter stating that you met the statutory requirement. Shortly afterward you will receive a copy of your file and an objection form. When you receive the objection form send a letter that you wish to continue with the appeal but are waiting for additional information. Once the notice is filed there are no further time limits. The notice of your intention to appeal preserves your right to continue with the appeal any time in the future.


At this time you should also consider hiring a professional who can assist you with your appeal. The law is governed by the Workplace Safety Insurance Act, caselaw and the Board policy.




What if I miss a limitation period?


The Board has the authority to extend the time limit in exceptional circumstances. Such circumstances include serious illness or death in the family. It is difficult to obtain an extension and therefore important to seek professional advice to ensure that you meet the criteria and you best case is put forward.

LMR Completed- Now What?

You’ve finished your Labour Market Re-entry program (LMR). While looking for work, it becomes clear to you that there are no jobs available and you’ve come to the conclusion you can ever work again. Now what?


The Board will re-evaluate your loss of earnings benefits upon completion of the retraining program to reflect your potential new earnings. It is usually the Board’s opinion that you have received skills and are therefore, able to find employment in the suitable employment or business (SEB) which was chosen for you. For example; if you retrained as customer service representative, the WSIB would presume that you have the appropriate skills and should be able to find employment at an entry-level wage in this job category. They would then reduce your benefits by the amount of the anticipated entry-level wages in this SEB. In this example, a customer service representative. This decision is of course, appealable. The appeal must be filed within 6 months of the date of decision.


In determining the loss of earnings to be paid the WSIB in accordance with s. 43(4) of the Workplace Safety and Insurance Act shall determine the worker’s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker and is available and,


(a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or


(b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision.


Interestingly, the word determine is not defined in the legislation but yet effort was made to introduce the word “determined” into the legislation in place of the word “deemed”. Determined means to find out or come to a decision about by investigation, reasoning or calculation. Deemed means to come to think or judge or to have an opinion. I can believe a job exists or deem that a job exists but yet determine thru research and investigation that in reality my belief or opinion was incorrect based on the statistical information available. This is an important distinction. The Board must perform a more thorough review of the actual statistical information available and consider its veracity against the current true labour market.


There are of course times when workers cannot find employment in their training program for a number of reasons and the following factors should be considered in determining whether or not an appeal will be successful:


1. The availability of employment in the goal set by the Board.


Available means that the employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job. Obviously this argument is very dependant upon the economy and the current economy in the Windsor area there may be a number of goals which may not have jobs available following the completion of a retraining program.


In addition, the worker’s scope of job search or geographical location may come into play. For example, if a worker’s previous job was in Leamington and they’ve always worked in Leamington and have issues with transportation; the local job market which should be reviewed is the Leamington area rather than the entire Windsor-Essex County area.


2. Adequacy of skills


The education and experience a worker possesses may not be sufficient to have a reasonable prospect of obtaining a job in the field specified. For example, it may be successfully argued that a worker who obtains computer training may now have out dated skills or that a certificate of social work from a business college may not have the necessary skills to complete and/or perform the duties of a social worker The starting point for this type of argument is the job requirements set out by the National Occupation Code (NOC) which is available through Employment Canada. This index of job descriptions also provides the basic job requirements in order to be successful in employment. If the job requires a grade 12 education or a college/university degree and this level of education has not been provided, then a worker may be successful in arguing that they did not receive the necessary skills to be successful in obtaining employment in the job identified by the Board.


3. The worker’s physical ability to perform the duties required.


Success on this point depends heavily upon medical information, job descriptions and actual job postings. If a worker has a restriction of no prolonged standing and the goal chosen is customer service. The Board may have thought there were jobs were the worker could sit but a review of job postings could show no such jobs available within a 6 month period and therefore the worker could not possibly have a reasonable prospect of obtaining a sitting customer service job.


The question of whether benefits should be reduced following an LMR plan also needs to address a worker’s compensable and non compensable physical and mental abilities, but also their transferable skills, education and even age.


It is important that a worker, if in disagreement with a Board decision, immediately appeal the decision and obtain appropriate advice so as to maximize the benefits they are legally entitled to from the Board. It is extremely important that regardless of whether or not you as a worker agree with the WSIB, you must continue to search for work even if you believe you can never return to work again. A job search is critical in ensuring that you have mitigated your losses as an injured worker and made a whole-hearted attempt at finding employment in the area which you have been retrained. A failure to do this can result in either a negative decision or a reduction of benefits.

WSIB New Year Housekeeping

There have been a number of initiatives and changes at the WSIB in recent months.


WSIB has started to publish a few select decisions from the Appeals Branch on the publicly accessible website Canadian Legal Information Institute (CanLII).  Although the Board makes its decisions on a case by case basis and are very fact driven, it will be interesting to see if there is any value in using these decisions for policy interpretation purposes.  The decisions can be found at:  www.canlii.org/en/on/onwsib


The WSIB has introduced two Recurrence teams as part of its new service delivery model.  One is located in Toronto the other in Hamilton.  The teams are responsible for making decisions concerning all recurrences adn secondary injuries where the file has not be active for more than 30 days.  As well, all decisions concerning work disruptions which include short term, long term layoffs, strikes and plant closures are handled by the Recurrence team.  EI Work share and Work reductio programss would fall under this team's purview as well.


WSIB has announced a consultaiton regarding the joint health and safety committee certification program.  For details go to:  www.wsib.on.ca/wsib/wsibsite.nsf/public/PreventionJHSCConsultation


The Board also started a SIEF (Secondary Injury Enhancement Fund) pilot project in Hamilton.  All SIEF requests are to be handled by a special team who will adjudicate all SIEF decisions rather than the adjudicator. SIEF is a program that basically provides demployers with cost relief that translates into reduced premiums with the amount of relief being dependent the severity of the workplace accident and severity of the preexisting conditions or injuries.


Finally, the Board updated severally Policies in October and November, 2009.  These include:


Disclosure of Claim File Information to Worker or Employer Representatives
Disclosure of Claim File Information to Health Care Providers, LMR Providers and Research Entities
Hearing Devices
Independent Living Devices


The new policies can be found at www.wsib.on.ca/wsib/wopm.nsf/home/opmhome


Happy New Year!

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.

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?

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.

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.

Return to Work - Who's Right my Doctor or the Board?

Workers are often faced with the difficult task of deciding what to do when the Board threatens to cut off benefits if they do not return to work or school and yet their doctor writes a note to stay off work. This is a common situation. The answer it not always easy and depends on the facts of each individual case. What worked for your friends may not work for you. But here are some things to keep in mind.

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  The Board uses the Functional Abilities Form to assist in determining whether you can return to work or school. They will not accept a doctor’s note that states: Mr. X is to remain off work. Pain is expected to be controlled through pain management methods and doctor-prescribed medications. The Board's view is that it may hurt because you are not used to the work but if it isn't harming you it is suitable. Hence, if the work appears to be within your functional abilities it is suitable.

• Your functional abilities must be assessed by a trained professional and accurately reported on a Functional Abilities Form. When you bring it to your health care provider for completion, fully discuss your problems and how the injury limits your activities around the house including any lifting, reaching, bending, standing, walking, sitting, twisting, crouching, sleeping, and driving. Discuss with your health care provider any changes you have had to make to make things easier for yourself like rearranging where things are stored to make it easier to reach them or modifications to your home to assist you in moving around safely. The form can be completed by your family doctor, chiropractor or physiotherapist. Do not over medicate yourself for your assessment as this will not provide an accurate assessment of your functional abilities.

• Try the work. If you don't try, you will not know if the work is suitable or not. This is the first question usually asked by an appeals resolution officer at an appeal hearing. Furthermore, absence of an honest effort can easily be perceived the Board as non-cooperation.

• If you try the job and you cannot perform the work without and increase in pain or other symptoms then report the problems to your employer. Ask if there is other work available. Make suggestions about changes that could help you perform the work with less pain. Keep track of who you spoke to what was discussed and when.

• Report any problems to your health care provider. Bring the job description with you or accurately describe the job so there is no confusion about what the job entails when discussing it with your health care provider. Discuss possible modifications to the work. If your health care provider decides that the job is not suitable, obtain written reasons why they are of this opinion. Objective medical evidence should be provided to show how you are worse and how the job is not safe and exposes you to further injury. Remember it is not your opinion but the health care professional's opinion that should be documented.

• Request a return to work mediation to try to resolve the problem with your employer using this process. Think of other jobs that may be lighter and therefore not as taxing on your injury. Offer to work on a graduated basis, starting at a few hours per day and gradually increasing your duties so that you can build up your strength. Anyone who has not been to work for several months would find it tiring to work an 8 hour day. Ask to begin working a few half-days a week, gradually building up to an 8 hour day.

• Request an ergonomist come out to assess the workstation and job duties. They can often offer suggestions on how to make the job safer and recommend you be taken out of a job that is not suitable for your injury.

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  If pain or depression/anxiety is a serious barrier then ask the nurse case manager for pain management or a referral to a psychologist to help you cope and eventually return to work.

• Be realistic with a return to work program. You do not want to become re-injured, but unless you are totally disabled, you have abilities.
  

There are many factors that determine what you should do if faced with a return-to-work situation that you do not feel that you are ready for. If you are having difficulties obtain legal advice before making a decision. If the Board determines that you are non-cooperative, not only will your benefits be cut off, but the strength of your appeal may be negatively impacted.

Bill 119 brings Mandatory Registration to Construction Workers

For many years the Workplace Safety and Insurance Board has talked about making coverage mandatory for all independent operators in the construction industry. Problems related to identifying who is truly an independent operator has plagued the Board for many years and many appeals have been heard before the Tribunal on this issue. The question of whether a construction worker was working for himself or someone else required the completion of various forms and disclosure of what some individuals considered confidential information including lists of competitors and financial statements. Other individuals were being injured only to find out that there was no coverage.

A determination that an individual was an independent operator has also meant a loss of income for the Board. These individuals did not have to pay premiums nor did the companies for which they provided services.

The Ontario Legislature has passed Bill 119 that will extend mandatory coverage to independent operators, sole proprietors, some partners in a partnership and some executive officers in the construction industry. While the Bill has passed, the law is not expected to come into effect until 2012. Those in the construction industry will not be required to be registered until the Act comes into effect.

The WSIB is now working on developing the policies, systems and administrative processes to support the implementation of this legislation. Those in the construction industry should check the Act to see how they will be impacted and check the Board's website for updates on registration requirements.

NEL Program Redesigned

Many workers have by now experienced the changes to the Non Economic Loss (NEL) system. In the past, workers were sent a roster of doctors to choose from for their assessment. A physical examination was required in every case.

As of July 2, 2008 , a NEL Clinical Specialist will review the information contained in your file such as functional abilities evaluations, medical, chiropractic, and physiotherapy reports to determine if there is sufficient information to rate your NEL benefit. If the information is complete, that is provides Range of Motion information after your date of maximal medical recovery, your NEL Benefit will be rated based on the information in your file. You will receive a letter explaining the decision, as well as the payment.

If an examination is required, the Workplace Safety and Insurance Board will either refer you to a Regional Evaluation Center to have your assessment done or send you a list of doctors specially trained to assess your type of injury or disease. Generally 3 or 4 names are provided as opposed to the pages of doctors names previously given. In either case, you choose which doctor will examine you from those names supplied to you.

The WSIB will reimburse you for travel expenses and any lost wages that result from attending the examination.

After the examination, the doctor will send the WSIB a medical report. This report, as well as the medical information on you claim file will be reviewed to calculate your NEL benefit. You and your employer will each receive a copy of the doctor’s report as well as a letter to explain how the benefit was calculated.

You will also receive the option of receiving the monies as a lump sum but must make this request in writing within 35 days of receiving the decision letter from the Board.

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New Service Delivery Model

It's not only been a busy few months for us at the office but also at WSIB. The Board has introduced a new service model which impacts the way in which claims are processed.

The Board has stated: "Profound emotional, physical and economic losses are experienced when injured or ill workers have not yet returned to work and recovery. These losses are felt in the home, at the workplace, and throughout the community. Everyone benefits when workers return to work and recover as quickly as possible. " The focus of the new system is return to work and the model has been released at the same time as the new return to work policies which we have been anticipating for a number of years.

Through the life of a claim workers will come in contact with not just one adjudicator but several. When an accident first happens an Eligibility Adjudicator will determine your eligibility to benefits. This adjudicator will primarily investigate the claim and determine initial entitlement following an accident.

If the claim results in a longer term recovery the file will be transferred to a Case Manager who makes decisions about ongoing benefits to be paid, reviews the opportunities and obstacles to return to work, arranges and monitors Labour Market Re-entry services and makes decisions concerning permanent unemployability.


The Case Manager will work with the Return to Work Specialist who facilitates return to work and case resolution at the workplace. The Return to Work Specialist assists the parties in identifying suitable and available employment in the workplace in order to fulfil the worker's and employer's obligation to cooperate in an early and safe return to work.

The Nurse Case Manager's Role has been expanded and is now called a Nurse Consultant. The Nurse Consultant coordinates specific medical interventions and assists in resolving health care barriers and improving wait times to services required. This person also decides what health care services and benefits are allowable.

The Disability Prevention Specialist assists employers (in-house as needed) to build new or improved prevention, disability management and compliance programs and practices for their entire workplace. The position is part of the Board's mandate to have zero accidents.

The new delivery model was launched in Ottawa and Toronto this past fall. The Windsor office is set to change to the new model in February, 2009 and the transition process for the other regional offices is to be completed by mid 2009.

This new system means that there will likely be a change in adjudicators for many workers in the coming months.

Overnight Shift Work Identified as "Probable Carcinogen"

The International Agency for Research on Cancer (IARC), a part of the World Health Organization has evaluated more than 900 agents since 1973, of which approximately 400 have been identified as carcinogenic or potentially carcinogenic to humans. After a thorough review of scientic evidence and expert working group with IARC has concluded that shiftwork that involves circadian disruption is probably carcinogenic to humans.


Medical research studies have found that long-term night workers have a higher risk of breast cancer than women who do not work at night. The studies show that constant light, dim light at night or simulated chronic jet lag can substantially increase tumour development. Other studies show that reducing melatonin levels at night increases the incidence or growth of tumours.


The agency noted that these study results may be explained by the disruption of the circadian system that is caused by exposure to light at night. This can alter sleep-activity patterns, suppress melatonin production and disregulate genes involved in tumour development. The noted that the most disruptive shiftwork is nightwork.


This classification will be of importance to healthcare and automotive workers among others who work midnights in our city and province.



The IARC website is an extremely useful website when it comes to identifying cancer causing agents and can be found at http://www.iarc.fr/ENG/Databases/index.php.

Do I have to attend an employer requested health exam

If you are receiving benefits from the Workplace Safety and Insurance Board, your employer may ask you to attend to a health examination with a doctor chosen and paid for by the employer. You are not required to attend this appointment until ordered to do so by WSIB. Although, you may wish to consider how not attending will impact on your relationship with your employer. I often advise clients that you have nothing to hide and in fact the independent medical may actually assist your claim.

If you decide however that you do not want to attend the employer requested health examination, you must tell your employer that you object to the examination. I recommend that you do this in writing and carbon copy the Board. After receiving your objection, the employer has 14 days to write and request that the WSIB order you to attend the examination.

This is not automatically done by the Board. The employer must show that the examination is necessary and it will:

• help with your early and safe return to work


• provide significant new information not already available in your claim file


• help clarify any disagreements in the medical opinions of doctors,


• help better understand the nature of your injury

The Board will not approve an independent medical examination if the employer is sending you for an opinion merely because they disagree with the current medical opinions. All medical examinations are limited to the work related injury.

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.