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Difference between revisions of "Workers' Compensation Claim Benefits (7:XI)"
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Workers' Compensation Claim Benefits (7:XI) (view source)
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== G. Permanent Disability Pensions == | == G. Permanent Disability Pensions == | ||
Once a worker’s condition has stabilized or “plateaued,” i.e., is not likely to get significantly better or worse in the next 12 months, temporary wage-loss benefits will cease. If the worker continues to have some disability, they will be assessed for a permanent disability pension. A disability pension is possible if WCB determines that the worker has been left with a permanent disability. | |||
A case manager will determine which conditions or injuries are permanent and refer the worker for assessment. Decisions not to refer a worker at all or to exclude certain injuries or conditions are appealable to the Review Division and, if necessary, to WCAT. | |||
A WCB “pension” is how the Board compensates an injured worker for a permanent disability. There are two possible methods for calculating a pension – compensation for permanent functional impairment, or compensation for loss of earnings (detailed below). If a permanent partial disability is accepted, WorkSafeBC will consider '''both''' methods and select the method which will provide the '''larger award'''. | |||
Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will have one-half of those benefits deducted from their WCB pensions (this could amount to as much as $577 per month, half of the $1153 maximum currently payable by CPP). This deduction represents the employer’s share of the benefits paid for the same disability as the WCB claim. If a CPP pension is partly based on non-compensable disabilities, no deduction will be made for that portion of the CPP (See RSCM II, Item C6-36.10). | |||
=== 1. Permanent or Partial Total Disability Benefits === | |||
When the Board determines that a worker has a permanent functional impairment, the Board must determine whether the functional impairment is a Permanent Total Disability (“'''PTD'''”) or aPermanentPartial Disability (“'''PPD'''”). Sometimes, this will be obvious, such as in cases of paraplegia or blindness. In other cases, the Board must conduct an assessment to determine the degree of impairment. If the impairment is 100%, the worker has a PTD. If it is anything less than 100%, the worker has a PPD. This is an important distinction, as PTD and PPD benefits are calculated under different sections of the ''Act'' and have different minimum payable amounts. | |||
There are two methods used to calculate a worker’s degree of impairment: the functional impairment method – often referred to as the loss of function method (“'''LOF'''”) – or, the loss of earnings method (“'''LOE'''”). | |||
The Board will consider both methods and will use the method that provides the highest award to the worker (Act, s. 195–196 [Former Act, s. 23]). | |||
=== 2. Loss of Function Method === | |||
The LOF method compares the worker’s degree of physical impairment to that of a totally disabled person. The percentage of impairment is usually based on the RSCM’s Permanent Disability Evaluation Schedule (PDES). It is important to note that this is an objective measure, i.e., the amputation of a thumb would result in the same degree of impairment for a carpenter as for an accountant under the LOF method, even though it may be a far more disabling injury for the carpenter. | |||
At age 63, the worker is asked to provide independent verifiable evidence that they had plans to work beyond age 65. Elements that make up a plan would include a concrete pathway towards continued employment as well as a financial need to remain in the workforce. This evidence can include the following: | Generally, only disabilities that could reduce earning capacity receive compensation, and there are no payments for pain and suffering or loss of enjoyment of life. The Board’s policy manual contains detailed schedules of percentage of impairment for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process. | ||
Item C6-39.00 of the RSCM II says that the PDES is meant to be a guideline and not a rigid formula. The WCB is free to apply other variables in arriving at a final award, but they must relate to degree of impairment and not social or economic factors, or rules established in other jurisdictions. In practice, the PDES is applied with little discretion. | |||
Note that loss of function awards for chronic pain are capped at 2.5% per area of pain (RSCM II, Item C6-39.10). | |||
As stated above, if the LOF method leads to a finding that the worker is 100% disabled, they will be paid PTD benefits pursuant to s. 194 of the ''Act'' [Former Act, s. 22]. If the LOF method leads to a finding that the worker is less than 100% disabled, they will be paid PPD benefits pursuant to s. 195–196 of the ''Act'' [Former Act, s. 23]. | |||
Note that even if a worker is found to be 100% unemployable pursuant to the LOE method described below (i.e., their loss of earnings is complete), it does not necessarily make them 100% functionally disabled, because the LOE method may incorporate personal information about the worker (such as a criminal history) that makes the worker unemployable even though the injury did not cause a 100% functional impairment. As such, a 100% unemployable worker will still be paid benefits pursuant to s. 192 of the ''Act'' [Former Act, s. 30(2)]. | |||
=== 3. Loss of Earnings Method === | |||
The LOE method compares the long-term wage rate that a worker was able to earn per year before the injury to what the worker is able to earn after the injury, based on occupations that are suitable for and reasonably available to that worker. Unlike the objective LOF method, the subjective LOE method takes into account the specific worker. I.e., the LOE method would likely find that the loss of earnings related to an amputated thumb is greater for the carpenter than it is for the accountant, because the accountant can likely return to their pre-injury job, but the carpenter cannot. | |||
Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they are actually earning or can earn following an injury. For example, a worker who cannot return to a pre-injury job that paid $4000 per month may find new employment for $2000 per month. Instead of accepting the worker’s own experience, the Board may decide that, over the long term, the worker can find a different kind of job that pays $3000 per month, and calculate the benefits accordingly. Instead of getting a loss of earnings pension representing the actual $2000 per month the worker is losing, they would receive a pension based on the $1000 the Board “deems” them to be losing. | |||
Workers may disagree with Board decisions. Common situations are that the worker believes the Board has underestimated the extent of physical or psychological limitations they have due to their injury and/or pre-injury background, or underestimate the demands of the deemed occupations the Board says they can perform. Workers may also disagree with the assessment of what they are capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that exceed what is reasonably suitable and available for them. If a worker appeals a loss of earning decision, then they should provide evidence of why the decision should be changed. | |||
== H. Benefits After Age 65 == | |||
Item C6-41.00 of the RSCM II states that payments for permanent disability pensions end at age 65 unless the WCB is satisfied that the worker would have retired at a later date. WCA s. 201(3) states that a determination as to whether a worker would have worked passed the age of 65 can be made by the Board after the individual reaches the age of 63. Note that this change was introduced in 2021 and, before that time, retirement age was assessed as of the date of the injury, regardless of the age of the worker. | |||
At age 63, the worker is asked to provide independent verifiable evidence that they had plans to work beyond age 65. Elements that make up a plan would include a concrete pathway towards continued employment, as well as a financial need to remain in the workforce. This evidence can include the following: | |||
* Names of the employer or employers the worker intends to work for after age 65, along with confirmation from the employer; | |||
* A description of the type of employment the worker is going to perform, along with evidence showing the worker actually has the capacity to perform the work; | * A description of the type of employment the worker is going to perform, along with evidence showing the worker actually has the capacity to perform the work; | ||
* Evidence from other professionals that it normal to continue work beyond 65 in that profession. This would include retirement age set by unions; and | |||
* Evidence from other professionals that it is normal to continue work beyond 65 in that profession. This would include retirement age set by unions; and | |||
* Financial obligations of the worker or family, such as a mortgage or other debts. | * Financial obligations of the worker or family, such as a mortgage or other debts. | ||
== I. Benefits in Fatality Cases == | == I. Benefits in Fatality Cases == | ||
A child eligible for compensation includes a child less than 19 years of age, | When a worker is killed as a result of a workplace injury, dependants of that worker can apply to the Board for benefits. Dependants include family members that are dependent on the worker’s earnings, as well as a spouse, child, or parent that had a reasonable expectation of pecuniary benefit from the continued life of the worker (see RSCM II, Item C8-53.00). | ||
A child eligible for compensation includes a child less than 19 years of age, a child of any age who had, at the date of the worker’s death, a physical or mental disability that resulted in the child being incapable of earning, and a child less than 25 years of age who attends a school. | |||
Spousal benefits are not lost upon re-marriage, and survivors’ pensions are not terminated when the worker would have reached age 65 (see WCA, s. 168, as well as s. 225 for death before July 1, 1974; [Former Act, s. 19.1]). | |||
Where death results from a compensable injury or industrial disease, the surviving dependents may receive lump-sum payments or monthly pensions based on the deceased worker’s earnings. These pensions cannot exceed the statutory maximum and are adjusted in accordance with changes in the Consumer Price Index. The amount of the pension for spouses without dependent children depends on the surviving spouse’s age (WCA, s. 170 [Former Act, s. 17(3)(d)]). | |||
A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had they survived (s. 178; previously 17(9)). A common-law spouse is entitled to benefits after three years of cohabitation or after one year if there are children. However, compensation may not be paid, or may be reduced, if there is a separated spouse as well. | |||
Benefits in fatality cases can be complex, particularly if any apportionment between dependants is required. Chapter 8 – Compensation on the Death of a Worker of the RSCM II should be consulted. | Benefits in fatality cases can be complex, particularly if any apportionment between dependants is required. Chapter 8 – Compensation on the Death of a Worker of the RSCM II should be consulted. | ||
== J. Suspension of Benefits == | == J. Suspension of Benefits == | ||
Benefits may be suspended: | |||
* | Benefits may be suspended if: | ||
* | |||
* | * a worker persists in unsanitary or injurious practices, which tend to '''prevent or slow recovery'''; | ||
* | |||
* a worker refuses to submit to medical or surgical treatment, which, in the opinion of the WCB, is '''reasonably essential''' in promoting recovery; | |||
* a worker fails to attend a medical examination arranged by the Board; or | |||
* a worker is in prison, in which case benefits will cease, or be paid to their dependents. | |||
The Board may also divert compensation from a worker for the benefit of their dependents if the worker is not supporting them. | The Board may also divert compensation from a worker for the benefit of their dependents if the worker is not supporting them. | ||
Under s. 153 of the WCA [Former Act, s. 57.1], the Board may withhold or reduce benefits for any period the worker does not provide the requested information (unless the Board finds that it was unclear in communicating the requirement, or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information. | Under s. 153 of the WCA [Former Act, s. 57.1], the Board may withhold or reduce benefits for any period the worker does not provide the requested information (unless the Board finds that it was unclear in communicating the requirement, or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information. | ||
== K. Emergency Assistance == | == K. Emergency Assistance == | ||
Many workers need immediate income if they are waiting to be accepted or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer-term relief if a decision is being appealed, EI sickness benefits, CPP disability pensions, any plans available through their place of work or union, ICBC (if an automobile was involved), or private disability insurance. | Many workers need immediate income if they are waiting to be accepted, or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer-term relief if a decision is being appealed, EI sickness benefits, CPP disability pensions, any plans available through their place of work or union, ICBC (if an automobile was involved), or private disability insurance. | ||
== L. “Resolved/Plateau” Decision Letters == | == L. “Resolved/Plateau” Decision Letters == | ||
=== 1. Has the | There are other key decisions in a worker’s claim including the initial decision to accept or deny a claim and any vocational rehabilitation or pension decision. Additionally, it is important to note the decision that is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually includes several key decisions, each of which may be appealed. Briefly, the decisions usually embedded in the “resolve/plateau” decision include: | ||
=== 1. Has the Worker’s Injury/Occupational Disease Stabilized? === | |||
The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” decision. As noted above, if a work injury or Occupational Disease has resolved entirely, the Board issues a “resolve” decision and the claim file is closed. If the injury has only stabilized, then the Board issues (or should issue) a “plateau” decision. If the injury has not yet stabilized, the Board should continue to treat it as a temporary disability with temporary benefits (wage-loss and/or health care benefits). | |||
An appealable matter arises if the Board issues a “resolve” decision but the worker or the medical evidence indicates that there are ongoing effects, conditions, or impairments from the injury (e.g., chronic pain). In this case, both the medical evidence and the Board’s adjudication should be assessed. The medical evidence should be assessed to determine if the compensable conditions are still temporarily disabling (i.e., the worker is not able to fully return to pre-injury work) so that the worker continues to be entitled to temporary ongoing benefits, or if the compensable conditions have reached a “plateau” as defined by RSCM II Policy #34.54 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation. | |||
The | The issue of “fully resolved” vs. having reached a plateau is a medical issue. “Fully resolved” means that there is no permanent or ongoing residue or impairment from the injury. If the claim is concluded on the basis that the compensable condition has “fully resolved,” then no further benefits flow and it will be very difficult to reopen the claim later. If the injury is not fully resolved medically,the file should not be closed. Just because a worker returns to pre-injury employment (with no disability so no wage loss), it does not mean that the injury is “fully resolved”; The injury may have stabilized into a permanent impairment that is not disabling. If the worker is issued a “resolve” letter and there are ongoing medical issues or symptoms, the “resolve” decision should be appealed. | ||
If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, RSCM II Policy #34.54 gives the criteria for making a determination between temporary and permanent conditions in this context. Basically, the policy states that a medical condition is “stabilized” when there is little potential for improvement or where any changes are in keeping with the normal fluctuations for that condition. Most doctors know the term “plateau” in this sense, and the worker’s GP may well address this matter in the last report on the claim file (found in the medical section). | |||
=== 2. Plateau Date === | === 2. Plateau Date === | ||
If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of | If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing,” “maximum medical recovery” (MMR) or “plateau.” You can assess whether this date is appropriate by considering: | ||
* Have all the compensable conditions been considered? | |||
* Is it appropriate given the criteria in RSCM II Policy #34.54 and the medical evidence? | * Have all the compensable conditions been considered? | ||
* Is it appropriate given the criteria in RSCM II Policy #34.54 and the medical evidence? | |||
'''Example''': If further treatment (physiotherapy or surgery) is likely to make a significant change in the worker’s condition within three months, then the condition should continue to be temporarily disabling and the worker should get temporary wage-loss benefits until then. | |||
=== 3. Which Permanent Conditions are Accepted or Denied? === | |||
In the plateau decision letter, the Case Manager sets out which exact conditions are accepted as permanent. These permanent conditions may be somewhat different than those originally accepted on the claim. For example, if a worker falls and suffers multiple injuries, some of the injuries are likely to fully resolve (e.g., sprains) while others can potentially leave a residual impairment (e.g., broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (e.g., mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (e.g., infections, psychological conditions, chronic pain, addiction, etc.). | |||
Typically, as a worker nears plateau, the Case Manager refers the claim to a Board Medical Advisor (BMA) to assess whether the worker has reached plateau, and to determine the likely plateau date and what permanent conditions should (and should not) be accepted on the claim. The BMA assessment may or may not be explicitly referenced in the plateau decision. The complete BMA opinion can be found as a “Clinical Opinion” in the medical section of the claim file. | |||
=== 4. Accepted and Denied Conditions === | === 4. Accepted and Denied Conditions === | ||
The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; | It is '''very''' important to carefully assess which conditions are accepted and denied as permanent on the claim, as these conditions will likely govern all future benefits. All plateau decisions should include a referral to Disability Awards for assessment of the permanent disability. | ||
The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; If not, the worker will likely need additional medical evidence. | |||
Another common reason for denying permanent conditions is that the Board considers that the conditions pre-existed the injury, and were not permanently aggravated by the injury, even if there was a temporary aggravation. There are two distinct types of pre-existing conditions: | |||
* The pre-existing condition or disease was '''non-deteriorating''': | |||
: As set out in RSCM II Item C3-16.00 for injury and Item C4-25.20 for Occupational Disease, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/Occupational Disease. This is an issue for which medical records are important. | |||
* The pre-existing condition or disease was '''deteriorating''': | |||
The pre-existing condition or | If the worker had a pre-existing deteriorating condition, the test is whether the work injury “accelerated, activated, or advanced” the condition more quickly than would have occurred in the absence of the work injury (RSCM II Item C3-16.00). The Board commonly denies permanent disability on the basis that it arises from a natural degeneration of a pre-existing condition such as degenerative disc disease or osteoarthritis. | ||
=== 5. Missing Conditions === | === 5. Missing Conditions === | ||
The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the decision letter with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim. | The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the decision letter with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim. | ||
=== 6. Can the Worker Return to the Pre-Injury Job? === | === 6. Can the Worker Return to the Pre-Injury Job? === | ||
If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional temporary wage loss benefits, a new plateau date, additional permanent conditions, etc., the return to work finding of fact can be addressed in the context of these additional issues. | A case manager’s decision that a worker can return to their pre-injury job is considered to be a finding of fact and not an appealable decision. In the context of a plateau decision, this return-to-work finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job. | ||
If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional temporary wage-loss benefits, a new plateau date, additional permanent conditions, etc., the return-to-work finding of fact can be addressed in the context of these additional issues. | |||
However, if there are no other issues in the plateau decision other than this return-to-work finding, the plateau decision should be appealed on the grounds that the worker cannot return to their pre-injury job and is entitled to additional vocational rehabilitation benefits. Framing the appeal issue in this way ensures that the Review Division has an entitlement decision to address. | |||
=== 7. | === 7. Referral to Vocational Rehabilitation === | ||
If the Board finds that the worker cannot return to their pre-injury job, then the case manager will most often refer the case to vocational rehabilitation for vocational rehabilitation benefits. | If the Board finds that the worker cannot return to their pre-injury job, then the case manager will most often refer the case to vocational rehabilitation for vocational rehabilitation benefits. | ||
