Difference between revisions of "Workers' Compensation Claim Benefits (7:XI)"

Although classified as VR benefits (described below), income continuity benefits are payments to provide interim support for the worker after TWL is terminated at plateau but before the amount of a permanent disability pension is determined. A worker’s advocate should always request these benefits as they are often the only source of income that a worker will have between the time the worker’s condition stabilizes and the time the pension benefits are assessed. These are short-term, temporary benefits.

If a worker refuses employment or to participate in a Board issued VR plan, he or she may be refused income-continuity benefits. See Policy C11-89.10 of the RCSM for more information regarding the assessment of income continuity benefits.  

The Board usually assesses whether a worker needs assistance to return to work (RTW) at or near the end of his or her temporary disability. If the worker has a permanent impairment and is not able to safely RTW without assistance, he or she is referred to Vocational Rehabilitation (VR).   

If a worker is struggling or unsafe near the end of the period of wage loss, an advocate should review the file to ensure a referral to VR is made.  If there is no referral, the advocate may make a direct request to the CM and/or appeal the “resolve” or “plateau” decision on the basis that these decisions do not contain a VR referral, when one is needed.  Policy #85.00 and #86.00 set out the principles, goals, and eligibility criteria for VR benefits.  

Once a VR referral is made, the Board may provide a large variety of VR services to injured workers.  These are discretionary benefits under s. 16 of the Act, governed by the policy set out in Chapter 11 of the RSCM II.  Generally, the extent of VR services generally depends on the nature of the worker’s disability.  

The policy requires that the assigned Vocational Rehabilitation Consultant (VRC) consult with the worker and issue a written VR plan identifying a suitable occupational goal and the VR services required. In identifying a suitable VR plan, the VRC works through five VR phases, set out in Policies C11-85.00 to 91.00. In fatal cases, a surviving spouse may be eligible for retraining.

# Phase One:  The VRC will make an effort to assist the worker to return to the same job with the same employer (the “accident employer”).  This may require some phased in work programs such as a gradual RTW or work conditioning.  

# Phase Four:  If the worker is unable to return to employment in the same or related industry, the VRC explores opportunities in all industries, with emphasis placed on the worker’s transferable skills, aptitudes and interests.  

The particular VR benefits which are authorized for the worker are be spelled out in detail in the formal VR plan, which should be provided to the worker.  The worker’s VR plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.

VR services can include:  

In practice, the Board will only issue one VR plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a VR plan is not reasonable, they should appeal the VR decision setting out the VR plan and ask for a new plan, being as specific as possible as to why the VR plan is unreasonable, and if possible, what a reasonable VR plan may be.   

If a worker is cooperating with VR re-training, they should continue to receive benefits at the full wage loss rate. If a worker is appealing a VR plan as unreasonable, the worker may wish to keep cooperating with the challenged VR plan during the appeal period in order to continue receiving benefits.  

VR benefits, under a formal VR plan, may be terminated for reasons set out in Policy #88.00.  These reasons include if the worker is not cooperating or if he withdraws for personal reasons or refuses suitable employment or is prevented from participating by non-compensable factors alone. If the worker believes that the Board’s reasons for terminating VR benefits are inaccurate or wrong, the termination decision should be appealed.  This is particularly important if the worker is failing in VR due to some aspect of his medical condition.  

At the end of the VR process, the VRC issues a decision about the worker’s future earning capacity in a suitable occupation and whether VR has restored it to near its pre-injury level.   Based on this final VR decision, the Board then determines whether the worker should be considered for a loss of earnings (LOE) pension.  

'''Rehabilitation decisions can be reviewed only by the WCB’s Review Division; the RD decisions on VR cannot be appealed to the Workers’ Compensation Appeal Tribunal.'''

While the Board routinely relies on the VRC’s decision regarding the worker’s employability, WCAT does not consider these VR decisions as binding on them when adjudicating an LOE pension issue on appeal.  EXAMPLE: A VRC finds that a worker can adapt to working full-time in a particular occupation, when he cannot.  The worker may still raise this issue and provide evidence about disability in his appeal of a denial of an LOE pension, both at the Review Division and WCAT.

:'''NOTE:''' Many difficulties in this area arise from different concepts of disability and employability.  The Board tends to assess a worker’s permanent disability in terms of impairment and to limit its assessment of impairment to “medical restrictions and limitations” (R&Ls) i.e. specific activities which the worker cannot do or should not do at all because of potential harm. R&Ls may or may not include other aspects of limited ability such as tolerance or endurance (such as an inability to sit for more than 10 minutes) which are key elements of work function.  Also, disabled workers often face discrimination and other barriers to employment.  Court decisions have been clear that VR processes must address the whole worker, including any pre-existing disabilities or factors affecting employment (''Young v. WCAT'' 2011 BCSC 1209) but this remains a contentious area and one that the Board does not consider part of the “compensable” condition.   

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 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 (PFI) or compensation for loss of earnings (LOE).  

All permanent disability pensions are paid until age 65, unless if the worker can convince the WCB otherwise (discussed in detail below).   

:'''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.

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).

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 disability for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process.  

Policy item #39.10 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.

Loss of earnings pensions will only be paid where the amount determined under the loss of function method would leave the worker with a significant loss of earnings, i.e. where the disability resulting from the work injury makes it unlikely that a worker can continue in the occupation at the time of injury or adapt to another suitable occupation without incurring a significant loss of earnings (See WCA s 23(3.1) and Item #40.00 in the RSCM). Practice Directive #C6-2 further defines “significant loss of earnings”. A 25% or greater percentage differential between pre-injury and post-injury earnings is usually considered significant. A 5% or less percentage differential is not considered significant. Anything in between could be considered significant, depending on the individual circumstances of the case. Note that the Practice Directive is not binding law, but is still persuasive.

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 payment equivalent to a 100% LOE pension. Some examples of permanent total disability are paraplegia, quadriplegia and total or near blindness.

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.  

 

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 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.  

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.

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.

There are key decisions in a worker’s claim including the initial decision to accept or deny a claim and any VR or pension decision. However, it is important to note the decision which is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually embeds several key decisions, each of which may be appealed.

 

=== 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” 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 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 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.  

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.).

Typically, as a worker nears plateau, the case manager (CM) 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.   

==== 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.  

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:   

As set out in policy #16.00 (Chapter 3) for injury and policy #26.55 (Chapter 4) for OccD, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/OccD. This is an issue for which medical records are important; or

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 ====

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.

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 TWL, a new plateau date, additional permanent conditions, etc., the RTW finding of fact can be addressed in the context of these additional issues.  

However, if there are no other issues in the plateau decision except this RTW finding, the plateau decision should be appealed on the grounds that the worker cannot to his pre-injury job and is entitled to additional VR benefits. Framing the appeal issue in this way ensures that the RD has an entitlement decision to address.  

=== If Not, Referral to Vocational Rehabilitation (VR) ===

If the Board finds that the worker cannot return to his pre-injury job, then the case manager will most often refer the case to VR for VR benefits.

There is a varied Board practice on whether the plateau letter will contain a decision on a worker’s entitlement to a Loss of Earnings (LOE) assessment or whether this decision will be deferred, pending the outcome of VR. However, all plateau letters should be assessed for whether they contain an LOE decision (express or implied) and if so, if this decision should be appealed.