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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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When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All claims benefits (e.g. LOE, PFI, TWL) are paid according to these rates. If you or your client believe your benefits do accurately reflect your income before your injury, it is vital that you try to correct this as soon as possible. | When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All claims benefits (e.g. LOE, PFI, TWL) are paid according to these rates. If you or your client believe your benefits do accurately reflect your income before your injury, it is vital that you try to correct this as soon as possible. | ||
At the beginning of the claim, the Board sets a short-term wage rate (STWR). After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate (LTWR). Both the STWR and LTWR are set at 90% of net earnings but the calculation of these earnings are different (in most cases) for the two wage rates. | |||
Except for “casual workers” (see below), a worker’s STWR is based on his gross earnings at the time of the injury with deductions assumed to be 1.5 times the basic personal deduction allowed under the Income Tax Act, RSC 1985, c 1 (5th Supp.) for a single taxpayer, plus the standard EI and CPP contributions. This results in a STWR that equates to 90 percent of the worker’s take home pay for a single worker. For workers who have several dependants or much lower actual tax deductions, this calculation results in a lower wage rate than if the Board had used actual figures. However, because the STWR is only set for the first 10 weeks of the claim and generally reflects their current wages, many workers do not dispute this issue or appeal the STWR decision. | Except for “casual workers” (see below), a worker’s STWR is based on his gross earnings at the time of the injury with deductions assumed to be 1.5 times the basic personal deduction allowed under the Income Tax Act, RSC 1985, c 1 (5th Supp.) for a single taxpayer, plus the standard EI and CPP contributions. This results in a STWR that equates to 90 percent of the worker’s take home pay for a single worker. For workers who have several dependants or much lower actual tax deductions, this calculation results in a lower wage rate than if the Board had used actual figures. However, because the STWR is only set for the first 10 weeks of the claim and generally reflects their current wages, many workers do not dispute this issue or appeal the STWR decision. | ||
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Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the LTWR, the benefit itself is adjusted annually according to inflation, at a rate 1 percent less than the actual inflation rate with a 4 percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002. | Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the LTWR, the benefit itself is adjusted annually according to inflation, at a rate 1 percent less than the actual inflation rate with a 4 percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002. | ||
=== Recurrence or Deterioration and Wage Rates === | |||
A claim may be “re-opened” if a worker suffers a new period of temporary disability and/or an increased degree of permanent disability from a recurrence or deterioration of a previously accepted condition. | |||
Under s. 35.1(8) of the current Act, a '''recurrence''' of an injury is treated as a new injury for any new period of temporary disability. In addition, if the re-opening is more than 3 years after the initial injury, the Board may reset the LTWR for the purpose of calculating additional benefits under the re-opening. | |||
The applicable policy on re-setting LTWR for re-openings over 3 years is Policy #70.20. This policy is complex and it is best to consult this policy in light of the particular facts of each case. This policy affects all workers with long-term disabilities, where their condition recurs or deteriorates. | |||
The re-opening provisions also have particular significance if the worker was injured prior to June 30, 2002, where the LTWR was calculated as 75% of gross and the definition of “average earnings” was different. For this worker, his re-opening TWL benefits would be calculated under the new policy provisions (90% of net average earnings). | |||
It should be noted that a “recurrence” must be distinguished from a “'''deterioration'''”. In ''Cowburn v Worker’s Compensation Board of British Columbia'', 2006 BCSC 722, the court found that it was patently unreasonable to treat a deterioration in a worker’s disability as a recurrence of an injury. Accordingly, when a worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits are based on the older provisions that were in force when the disability first arose (such as pension entitlement). However, a new applicable wage rate may still have to be determined under policy #70.20. | |||
== C. Average Earnings == | == C. Average Earnings == | ||
As noted above, the Board determines a worker’s LTWR based on its calculation of his annual “average earnings” and because of this, “average earnings” is an important decision on the worker’s claim. | |||
In general, “average earnings” is set as the worker’s employment income over the one-year period before the injury. Section 33 of the Act provides that the Board must use the exact previous one-year earnings unless the worker meets one of the few exceptions set out in the Act. If a worker has regular earnings in this one year period before his injury, this is not difficult. However, if a worker has irregular earnings in this period (for any reason), it is important to consider whether his employment falls within one of the statutory exceptions; if not, it will be difficult for that worker to get a LTWR comparable to his actual earnings at the time of injury. | |||
One exception is for “casual workers’. As noted above, “casual workers” already have their “average earnings” (over the previous year) calculated at the outset of the claim and for these workers, their STWR will be the same as their LTWR; both wage rates are likely significantly lower than the worker’s actual wages at the time of injury. This section is rigidly applied. | |||
Another exception is a “new” worker, defined as where the worker was permanently employed by the accident employer for less than 12 months before the injury. For this type of worker, section 33.3 of the WCA allows the “average earnings” to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 33.3 is not applicable where the worker’s employment is deemed casual or temporary. | |||
Under section 33.4 of the Act, the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable” . This provision does not apply to cases of “casual” workers ) or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary”, “unusual”, or “irregular”, such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history”. Examples might include a non-compensable illness or injury, or maternity/paternity obligations.. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e. one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time. | |||
Under WCA s. 33(3.2), EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work”. For a seasonal worker, this is an important distinction as can be seen by the example of a worker injured at work in his first week, after returning from a six month lay off. If this worker is designated as a “casual worker”, the Board would simply calculate his earnings over the last year (including the period of the long layoff but without counting EI payments) to arrive at the “average earnings” over the one year period before the injury. This figure would set both his STWR and LTWR and the only argument for a higher rate would be through section 33.4 of the Act. However, if the worker is found to be in a “highly seasonal” occupation, his EI benefits would add to the calculations of his “average earnings” and greatly increase his LTWR. In addition, his STWR (for the first 10 weeks) would be set in the usual manner as being his wages at the time of injury. | |||
Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on his or her combined earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (Policy #65-02). | |||
== D. Temporary Wage Loss Benefits (TWL) == | == D. Temporary Wage Loss Benefits (TWL) == | ||
The WCA does not define “disability” although it uses this term throughout the Act. Section 29(1) of the Act states that if a worker has a temporary total disability (TTD), the Board must pay full TWL benefits (calculated | The WCA does not define “disability” although it uses this term throughout the Act. Section 29(1) of the Act states that if a worker has a temporary total disability (TTD), the Board must pay full TWL benefits (calculated according to the steps above), also referred to as “s. 29 benefits”. Section 30 states that if a worker has a temporary partial disability (TPD), the Board must pay the difference between the worker’s average net earnings before the injury and either their average net earnings after the injury OR the average net earnings in some deemed “suitable” occupation. These are referred to as “s. 30 benefits”. | ||
If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker '''cannot''' perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss (#34.10). For most claims, the Board finds that there is some type of temporary disability: | If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker '''cannot''' perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss (#34.10). For most claims, the Board finds that there is some type of temporary disability: | ||
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The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. | The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. | ||
The Board has the right to supervise a worker’s treatment (s. 21) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Notwithstanding the 75-day | The Board has the right to supervise a worker’s treatment (s. 21) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Notwithstanding the 75-day time limit on Board reconsideration (WCA section 96(5)), the Board now agrees that each Medical Aid decision can be appealed. | ||
== F. Income Continuity Benefits == | == F. Income Continuity Benefits == | ||
