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Workers' Compensation Claim Benefits (7:XI) (view source)
Revision as of 01:01, 29 July 2021
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* Chapter 11 – Vocational Rehabilitation Services | * Chapter 11 – Vocational Rehabilitation Services | ||
== A. Benefits == | == A. Overview: Worker Disability and Compensation Benefits == | ||
Of the 100,000 workers injured on the job in B.C. every year, about half suffer minor or inconvenient injuries and return to their pre-injury employment in quick order. Most of these claims are accepted by the Board for health care benefits only (medical treatment, medication, etc.). | |||
Of those workers whose injuries are more serious, there are several common profiles of disability and recovery. After a worker makes an application for a temporary disability, the Board determines whether the worker is totally temporarily disabled and if so, pays full wage loss benefits under Section 191 (previously 29) of the Act. If the worker is only partially temporarily disabled i.e. can work some hours or some duties, the Board will pay partial wage loss under Section 192 of the Act. | |||
The following examples are to illustrate common compensation benefits and scenarios for disability: | |||
* The worker suffers a broken wrist in their dominant hand and cannot perform their job duties as a result. Their doctor recommends a certain number of weeks to recover after which they are cleared to return to work, full duties. The worker makes an application for compensation. If their claim is accepted, the Board sets a short-term wage rate on their claim (based on their average earnings) and the worker is paid temporary wage loss benefits at this rate for their days of lost work. The Board also covers any health care costs such as treatment or medication. If there are no permanent medical consequences to this injury and the worker returns to work full duties, the Board issues a decision that the injury is “resolved” and their claim is closed. The worker is not referred for any other benefits such as Disability Awards or Vocational Rehabilitation. | |||
* The worker suffers a more serious injury to their hand (e.g. a crush injury). If their claim is accepted, they again receive temporary wage loss for their time away from work. However, after 10 weeks, the Board issues a new long-term wage rate based on a more complex formula in law and policy. At a discretionary point, the Board considers that the worker’s condition is no longer “temporary” and must make one of the following decisions about the worker’s medical condition. Either: | |||
# His injury has “resolved” with no permanent impairment and they can return to work and perform full duties. In this case (as above), the Board will issue a “resolve” decision ending their temporary wage loss benefits and their file will be closed; or | |||
# His injury is not fully resolved, and they are left with some permanent functional impairment. In this case, the Board will issue a “plateau decision”, setting a date at which it considers that the worker’s condition is no longer temporary but it has reached a medical “plateau” (that is, the condition will not significantly change in the next year). This “plateau” decision also ends temporary wage loss benefits on the plateau date but will also refer the worker to Disability Awards to assess the nature and severity of this permanent impairment. In a separate decision, the Disability Awards will rate their impairment according to a schedule and award the worker Permanent Functional Impairment pension in a “Permanent Functional Impairment decision”. The Permanent Functional Impairment pension is awarded regardless of whether the worker returns to work or not as it is compensation for the permanent physical impairment, not direct compensation for lost wages. | |||
The plateau decision also sets out whether the Board thinks that the worker can return to their pre-injury job, performing full duties, with the impairment. If the worker can return to their pre-injury work, the Board does not need to retrain him and there is no referral made to vocational rehabilitation. | |||
However, if the Board considers that the worker cannot return to full duties with their impairment, the “plateau decision” will state this and the worker will be referred to vocational rehabilitation for further help with employment. | |||
The vocational rehabilitation process is set out below and goes through five phases: | |||
* '''Phase one:''' Tries to have the worker return to the same job with the same employer | |||
* '''Phase two:''' If unable to return to the same employer, works with worker and employer to modify job or identify job opportunities within the same company | |||
* '''Phase three:''' If unable to return to the same company, tries to help identify suitable job options related to workers experience and skills | |||
* '''Phase four:''' If the worker is unable to return to the suitable work in the same or related industry, tries to help the worker to identify options in other industries | |||
* '''Phase five:''' If the worker needs additional skills in order to return to suitable work, may cover the cost of training to help develop skills. | |||
The first phase is to see if the employer can or will accommodate the worker and their impairment. If there is no accommodation and the worker does not have a job to return to, vocational rehabilitation goes through further phases to assesses what vocational rehabilitation assistance the Board should provide to help the worker become employable, given their permanent injury. Vocational rehabilitation benefits are discretionary but typically include a vocational rehabilitation plan for the worker to re-train and/or have a job search and wage loss benefits for this period of vocational rehabilitation time. If successful, vocational rehabilitation results in the injured worker successfully adapting to employment with a permanent injury. | |||
It is possible that vocational rehabilitation is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable. | |||
== B. Short Term and Long Term Wage Rates == | == B. Short Term and Long Term Wage Rates == | ||
When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All | When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All wage loss related benefits (e.g. loss of earnings, permanent functional disability, and temporary wage loss) are paid according to these rates. If you or your client believe your benefits do not 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. After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate. Both the short-term wage rate and long-term wage rate are set at 90% of net earnings but the calculation of these earnings are different (in most cases) for the two wage rates. | At the beginning of the claim, the Board sets a short-term wage rate. After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate. Both the short-term wage rate and long-term wage rate are set at 90% of net earnings but the calculation of these earnings are different (in most cases) for the two wage rates. | ||
A worker’s short-term and long-term wage rates are based on a determination of “Average Earnings” for the worker. This determination is a complicated and fact specific process. There is an entire chapter of the RSCM II devoted to policies surrounding the determination of a worker’s average earnings (RSCM II Chapter 9 – Average Earnings). See below for further details. | |||
The general rule for determining a worker’s short term average earnings is to take the worker’s earnings as of the date of the injury. For example, if a worker makes $100 per day as at the date of the injury, their average earnings will be set at $100 per day. However, this is not an appropriate measure for workers who do not work regular hours. Workers with variable earnings, with more than one job, and several other specific circumstances will have their short term average earnings determined in respect of a certain period of time (e.g. over three months prior to the accident) rather than in respect of the date of the accident. (See RSCM II, Policies #64.00 – 65.05) | |||
The general rule for determining a worker’s long term average earnings is to obtain the worker’s earning and tax status for the 12 months preceding the injury and base the average earnings for the worker on that information. | |||
The | For both short-term and long term average earnings, there are exceptions to the above general rules. The exceptions apply workers with a casual pattern of employment, self-employed workers, workers with no earnings, volunteer workers, volunteer firefighters, workers in catholic institution, emergency services workers, apprentices, workers employed for less than 12 months, and workers in “exceptional circumstances” (see RSCM II, Policies # 67.00 – 67.60) | ||
For example, where the Board decides that a worker has a casual pattern of employment, the short-term average earnings will be based on that worker’s earnings over the immediately preceding 12 months of employment. Essentially, this means there is no “short-term” wage rate review, only the “long-term” wage rate. The result is that a “casual worker” who is earning a good wage at the time of the accident will likely be eligible for less compensation during the initial payment period than their counterpart in a “permanent” job. Where the “casual worker” designation has been made in the short-term wage rate decision but is not correct, this may be an important appeal issue. | |||
:'''NOTE:''' Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if they have a history of short term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as PDs are updated and changed on a regular basis, the electronic version should be consulted. | :'''NOTE:''' Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if they have a history of short term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as PDs are updated and changed on a regular basis, the electronic version should be consulted. | ||
Another example is a “new” worker, defined as when the worker was permanently employed by the accident employer for less than 12 months before the injury. For this type of worker, section 217 of the WCA [Former Act, s. 33.3] 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 217 is not applicable where the worker’s employment is deemed casual or temporary. | |||
Under section 218 of the Act [Former Act, s. 33.4], 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. 208(3) [Former Act, 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 their first week, after returning from a six-month layoff. If this worker were designated as a “casual worker”, the Board would simply calculate their 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 their short-term wage rate and long-term wage rate and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the Act. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their 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 their 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 (RSCM II Policy #65.02). | |||
In addition to determining the appropriate period of time over which to “average” earnings, the Board will also consider what income should or should not be included in that average. These policies are set out at RSCM II, Policies #68.00 – 68.90 and include topics such as overtime, termination pay, salary increases, benefit plans, trike pay, fishers and others. | |||
Note also that the WCA places a cap on wage rates that is set out at Policy #69.00 of the RSCM II. | |||
Once the appropriate averaging period and included income amounts have been determined and averaged, deductions are applied so that the worker is receiving wage rates based on their net (or take home) pay, rather than their gross pay. To calculate the workers average net earnings, the Board deducts probable EI premiums, probable CPP contributions, and probable income tax. These amounts are estimated, not calculated specifically for the worker (see RSCM II, Policy #71.00). | |||
In order to do this, the Board establishes a schedule of deductions that apply to short-term average net earnings and long-term average net earnings (see RSCM II, Policies #71.10 and 71.20). For short-term average net earnings, the board applies the scheduled amount of CPP and EI deductions according to the worker’s average earnings. The Board will then deduct income tax based on the following credits: the basic personal amounts multiplied by 1.5 and the credits for CPP and EI contributions. | |||
This will mean that individuals who have dependents or other significant tax credits will end up with a net average earnings amount that may not accurately approximate their actual net earnings. However, this is only an issue for the short-term rate. | |||
For long term average earnings, the Board applies formulas that reflect federal and provincial tax rate and the level of CPP and EI contributions for the immediately preceding calendar year. CPP and EI contributions are determined in a similar manner as in the short-term calculation, and do not necessarily reflect the actual CPP and EI contributions deducted from the worker. However, in estimating tax deductions, the Board will apply the basic personal amounts, EI and CPP credits, and spousal / dependent and / or caregiver credits. | |||
:'''NOTE:''' In addition to Chapter 9 of the RSCM II, there are currently 11 practice directives that apply to the calculation of a worker’s average earnings and average net earnings. Rather than summarize this complexity, it is best to recognize that the Board’s long-term wage rate decision is based on an “average earnings” decision and that the “average earnings” decision is important to review on its particular facts. | |||
Wage rates are established based on the worker’s short-term or long-term average net earnings. The worker receives a wage rate based on 90% of their average net earnings. So, once the short-term or long-term average net earnings have been calculated as above, the wage rate paid to the worker will be 90% of that amount. | |||
Once the long-term wage rate is set, the Board uses this long-term wage rate figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below). | Once the long-term wage rate is set, the Board uses this long-term wage rate figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below). | ||
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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. | 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 229(1)(8) | Under s 229(1)(8) [Former Act, s. 35.1(8)] of the 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 long-term wage rate for the purpose of calculating additional benefits under the re-opening. | ||
The applicable policy on re-setting long-term wage rate 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 applicable policy on re-setting long-term wage rate 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. | ||