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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)
Revision as of 05:38, 15 November 2016
, 05:38, 15 November 2016no edit summary
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== H. Permanent Disability Pensions == | == H. Permanent Disability Pensions == | ||
Once a worker’s condition has stabilized or “plateaued”, i.e. is not likely to get significantly better or worse, temporary wage loss benefits will cease. If the worker continues to have some disabilty, 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. | 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 disabilty, 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, WCAT. | 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, WCAT. | ||
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:'''NOTE:''' 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. | :'''NOTE:''' 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. | ||
=== | === Functional Impairment Method === | ||
The first calculation for permanent partial disability pensions (called “Permanent Functional Impairment”) 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). | The first calculation for permanent partial disability pensions (called “Permanent Functional Impairment”) 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). | ||
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Note that loss of function awards for chronic pain are capped at 2.5% per area of pain. | Note that loss of function awards for chronic pain are capped at 2.5% per area of pain. | ||
=== | === Projected Loss of Earnings Method === | ||
This second calculation for permanent partial disability pensions 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. | This second calculation for permanent partial disability pensions 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. | ||
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Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they actually are 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, he or she would receive a pension based on the $1000 the Board “deems” him or her to be losing. Common problems workers face in these situations are that the Board may underestimate the actual extent of physical or psychological limitations they have due to their injury and/or pre-injury background, underestimate the demands of the deemed occupations the Board says they can perform, and/or overestimate what they are actually capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that far exceed what is reasonably suitable for and available to them. On appeal of a loss of earnings decision (and often a VR rehabilitation plan decision), the worker should provide evidence to counter these common problems. | Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they actually are 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, he or she would receive a pension based on the $1000 the Board “deems” him or her to be losing. Common problems workers face in these situations are that the Board may underestimate the actual extent of physical or psychological limitations they have due to their injury and/or pre-injury background, underestimate the demands of the deemed occupations the Board says they can perform, and/or overestimate what they are actually capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that far exceed what is reasonably suitable for and available to them. On appeal of a loss of earnings decision (and often a VR rehabilitation plan decision), the worker should provide evidence to counter these common problems. | ||
Given the above, the vast majority of workers will only receive a Permanent Functional Impairment (PFI) award for their '''permanent partial disability'''. For exceptional cases where the PFI award is inadequate, an additional Loss of Earnings (LOE) award will be provided. In cases of severe disability, a worker may have a '''permanent total disability''' equal to 100% PFI. In these cases, the WCB will pay the worker a monthly | Given the above, the vast majority of workers will only receive a Permanent Functional Impairment (PFI) award for their '''permanent partial disability'''. For exceptional cases where the PFI award is inadequate, an additional Loss of Earnings (LOE) award will be provided. In cases of severe disability, a worker may have a '''permanent total disability''' equal to 100% PFI. In these cases, the WCB will pay the worker a monthly payment equivalent to a 100% LOE pension. Some examples of permanent total disability are paraplegia, quadriplegia and total or near blindness. | ||
== I. Benefits after Age 65 == | == I. Benefits after Age 65 == | ||
Policy item #41.00 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. The worker is asked to provide independent verifiable evidence at the time of the permanent disability award (or on appeal) that he or she had plans prior to injury to work beyond age 65. This type of evidence can often be unavailable. A series of WCAT and RD decisions have held that if independent verifiable evidence is not available, the available evidence including workers’ statements should be considered to determine whether the worker had plans prior to the work injury (or in some cases prior to the time of the permanent disability award). See WCAT-2014-00467, identified as “noteworthy” on the WCAT website; if for example the worker had sincere plans to continue working past age 65 due to some combination of emotional and financial need, this may be sufficient to extend the pension. | |||
== J. Benefits in Fatality Cases == | == J. Benefits in Fatality Cases == | ||
For deaths that occurred on or after June 30, | For deaths that occurred on or after June 30, 2002, the following rules apply. Different rules may apply to deaths that occurred prior to June 30, 2002. | ||
A child eligible for compensation includes a child under 19 years of age and a child under 25 years of age who attends a school. | A child eligible for compensation includes a child under 19 years of age, an invalid child of any age, and a child under 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 (s. 19.1). In older cases, a spouse of a deceased worker who remarried might have lost their benefits. Under the new legislation, there are no such exclusions. Instead, s. 19(2) states that a person whose payments were discontinued under a former section is entitled to complete payment of all benefits that he or she would have been entitled to – as though the section had not applied. | |||
Where death | 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 (s. 17(3)(d)). | ||
A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had he or she survived (s. 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. | A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had he or she survived (s. 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. | ||
== K. Suspension of Benefits == | == K. Suspension of Benefits == | ||
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The Board may also divert compensation from a worker for the benefit of his or her dependents if the worker is not supporting them. | The Board may also divert compensation from a worker for the benefit of his or her dependents if the worker is not supporting them. | ||
Under s. 57.1 of the WCA, the Board may withhold or reduce benefits for any period the worker does not provide requested information (unless | Under s. 57.1 of the WCA, the Board may withhold or reduce benefits for any period the worker does not provide 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. | ||
== L. Emergency Assistance == | == L. Emergency Assistance == | ||
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Briefly, the decisions usually embedded in the “resolve/plateau” decision include: | Briefly, the decisions usually embedded in the “resolve/plateau” decision include: | ||
=== | === Has the Worker's Injury/OccD Stabilized === | ||
The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” | 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 OccD 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 (WL 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 | 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 policy #34.35 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation (VR). | ||
The issue of “fully resolved” vs. 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 | The issue of “fully resolved” vs. 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 (no disability so no WL) does not mean that the injury is “fully resolved”; the injury may have stabilized into a permanent impairment which 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, policy #34.54 gives the criteria | If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, 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). | ||
=== | === Plateau Date === | ||
If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing” or “maximum medical recovery” (MMR) or “plateau”. You can assess whether this date is appropriate, considering: | If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing” or “maximum medical recovery” (MMR) or “plateau”. You can assess whether this date is appropriate, considering: | ||
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'''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 TWL until then. | '''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 TWL until then. | ||
=== | === What Permanent Conditions are Accepted and what Conditions are 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 (sprains) while others can potentially leave a residual impairment (broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (infections, psychological conditions, chronic pain, addiction, etc.). | 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 (sprains) while others can potentially leave a residual impairment (broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (infections, psychological conditions, chronic pain, addiction, etc.). | ||
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==== a) Accepted and Denied Conditions ==== | ==== a) Accepted and Denied Conditions ==== | ||
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 (DA) for assessment of the permanent disability. | 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 (DA) 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. | 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. | ||
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The pre-existing condition or disease was '''deteriorating''': | The pre-existing condition or disease was '''deteriorating''': | ||
If the worker had a pre-existing deteriorating condition, the test is whether the work injury “significantly accelerated, activated or advanced” the condition more quickly than would have occurred in the absence of the work injury (policy #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 | If the worker had a pre-existing deteriorating condition, the test is whether the work injury “significantly accelerated, activated or advanced” the condition more quickly than would have occurred in the absence of the work injury (policy #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. | ||
==== b) Missing Conditions ==== | ==== b) Missing Conditions ==== | ||
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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 DL 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 DL 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. | ||
=== | === Can the Worker Return to the Pre-Injury Job? (not appealable) === | ||
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 RTW finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job. | 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 RTW finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job. | ||