Policy clarified, worker’s benefits increased

A worker who was injured in the 1970s asked the WSIB to explain calculations for his temporary total (TT) disability benefits allowed for a recurrence. He questioned why his benefits were based on his 1974 pre-injury earnings instead of his most recent earnings. He cited WSIB Policy 18-06-04 which requires the WSIB to use most recent earnings, as had happened with an earlier recurrence.

WSIB Policy 18-06-04 applies to workers injured before January 1, 1998. It dictates how to calculate total or partial disability benefits for a recurrence of the work-related injury/disease.

When he couldn’t get answers from the WSIB about how the WSIB interprets the policy, the worker contacted the Commission.

The Commission spoke to an assistant director (AD) who explained that when a worker is not working at the time of the recurrence, the pre-injury earnings are used to calculate TT benefits. He said that the team that handles pre-1990 injuries consistently approaches TT benefits this way, but that they made an exception in this case because of how the worker’s prior recurrence was paid. The AD reported that he referred the worker to discuss his policy concerns directly with the WSIB’s Policy Branch.

The Commission spoke with Policy Branch staff who confirmed that policy 18-06-04 was being revised for clarity, but that TT benefits are based on most recent earnings or pre-injury earnings, whichever is higher, regardless of whether the worker is working at the time of reoccurrence. WSIB staff said it’s unclear when the WSIB strayed from this interpretation and application. The revised policy was published on January 2, 2018.

In a discussion with the Commission, the AD acknowledged the confusion and confirmed that all management and staff received clarification. He agreed to screen active “pre-90” cases for any TT benefits decisions that  require review.

The worker later received a letter to explain how his TT benefits would be calculated. The WSIB reviewed and increased his benefits, using his most recent earnings.

The Commission is following up with the WSIB to identify other claims where this policy may have been incorrectly applied.