Definitions for Adjudicating Pre-1998 Claims

Policy

The following definitions govern the adjudication of temporary disability in pre-1998 claims.

Temporary total disability

Temporary total disability is the complete inability to earn full pre-accident wages for a limited period of time as a result of the physical and/or psychological effects of the injury and the necessity for clinical treatment. A worker who is unemployable as a result of a combination of a work-related injury and a number of personal and vocational (non-injury-related) factors is not considered totally disabled.

Temporary partial disability

Temporary partial disability is a reduction in the ability to earn full pre-accident wages for a limited period of time as a result of the labour market's inability to accommodate the worker with the remaining physical and/or psychological effects of the injury. This includes workers who are partially disabled but unemployable without a medical rehabilitation (MR) program or work reintegration (WR) activities, and those who are not in need of these services to return to work.

Full benefits

Full benefits mean 90% of the worker's net average earnings (NAE) before the injury for pre-1998 accidents, or 75% of the worker's gross earnings before the injury for pre-1985 accidents.

Proportionate benefits

Proportionate benefits mean some proportion of 90% of the worker's NAE before the injury and NAE after the injury for pre-1998 accidents, or some proportion of 75% of the worker's gross earnings before the injury and gross earnings after the injury for pre-1985 accidents.

Guidelines

Level of disability

Temporary total disability is a condition that prevents the worker from performing any type of work. A decision-maker usually looks at clinical information, functional abilities information, and information regarding the physical requirements of the worker's job and other jobs in determining whether a worker is completely unable to return to the workforce due to the effects of the work-related injury and/or the limitations imposed by the clinical treatment provided, and is, therefore, considered totally disabled.

A worker who is temporarily partially disabled may be physically capable of returning to the workforce in some meaningful capacity without a MR program or WR activities. The worker may be able to perform a modified version of the pre-accident job or another suitable job.

The fact that the worker is considered partially disabled does not mean that there is actually a job that the worker could or should do, or that there is a MR program or WR activities for the worker, or that the worker's benefits should be reduced. If there is no suitable employment available, it does not affect the determination of the worker's level of disability, but it is a factor in determining the level of benefits the worker may receive.

Full benefits

A worker who has a temporary total disability as a result of a work-related injury is entitled to full benefits (90% of NAE for pre-1998 claims, or 75% of gross earnings for pre-1985 claims).

A worker who has a temporary partial disability as a result of a work-related injury and who has not returned to work is entitled to full benefits provided that the worker is

  • willing to co-operate in a MR program or WR activities which, in the WSIB's opinion, will assist in returning the worker to gainful employment, or
  • available for suitable employment that is available to the worker.

Proportionate benefits

A worker who has a temporary partial disability as a result of a work-related injury and has returned to work is entitled to proportionate benefits. These benefits are calculated to be

  • 90 per cent of the difference between the worker's NAE before the injury, and net average amount that the worker is able to earn in some suitable occupation (SO) after the injury for pre-1998 claims, or
  • 75 per cent of the difference between the worker's gross earnings before the injury, and gross earnings amount that the worker is able to earn is some SO after the injury for pre-1985 claims.

A worker who is judged to have a temporary partial disability as a result of a work-related injury and has not returned to work is entitled to proportionate benefits if the worker has failed to either

  • co-operate in a MR program or WR activities which, in the WSIB's opinion, will assist in returning the worker to gainful employment, or
  • be available for suitable employment that is available.

In this situation, proportionate benefits are considered to be a percentage as determined by the degree of ongoing disability.

MR program

Whenever there is any MR program that could aid the worker in getting back to work, the program must be made available to the worker. MR includes

  • emergency/acute care services
  • elective surgery
  • specialist consultations
  • paramedical services
  • psychological services, and
  • medical/paramedical assessments/evaluations.

WR activities

The WSIB views WR as a process, consisting of a series of activities along a timeline which generally

  • starts as soon as the employer learns that a worker has suffered a work-related injury/disease
  • continues throughout the work-related injury/disease recovery and impairment period, and
  • adapts to changes as they arise.

The WR process also includes the stay at work process which is triggered when workers do not lose any time from work, or return to work soon after the injury, but may require accommodated work during the recovery due to the work-related impairment. In these cases, the workplace parties are expected to put in place a plan that achieves a return to the pre-injury job and/or restores pre-injury earnings where appropriate, see 19-02-01, Work Reintegration Principles, Concepts and Definitions.

The workplace parties must co-operate with each other and the WSIB in the return to work process by

  • initiating early contact 
  • maintaining appropriate communication throughout the worker’s recovery  
  • identifying and securing WR opportunities for the worker 
  • giving the WSIB all relevant information concerning the worker’s WR, and
  • notifying the WSIB of any dispute or disagreement concerning the worker’s WR.

See 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration.

When the workplace parties have been unsuccessful in arranging a return to suitable and available work with the injury employer, the WSIB provides a work transition assessment to determine what specialized assistance a worker requires to enable a return to work with the injury employer or, if necessary, in a SO that is available in the labour market, see 19-03-03, Determining Suitable Occupation.

Application date

This policy applies to all decisions made on or after February 15, 2013, for accidents prior to January 1, 1998.

Document History

This document replaces 18-06-03 dated October 12, 2004.

This document was previously published as: 
02-01-08 dated August 9, 1991.

References

Legislative Authority

Workplace Safety and Insurance Act, 1997, as amended
Sections 40, 42, 102, 105, 108

Workers' Compensation Act, R.S.O. 1990, as amended
Sections 37, 40, 41, 50, 53, 134, 145, 146

Minute

Administrative
#36, January 28, 2013, Page 508