When a worker is unable to return to pre-injury employment because of a work-related injury/disease and is not working at any job at the time of the initial future economic loss (FEL) determination, the WSIB presumes that the worker's future loss of earnings is work-related. However, this presumption can be disproven by:
- an actual job offer
- a suitable occupation (SO), see 19-02-10, RTW Assessments and Plans, or
- a worker's lack of co-operation in a medical rehabilitation (MR) program or return-to-work (RTW) activities.
The purpose of this policy is to outline when the worker's loss of earnings is presumed to be work-related, and how the presumption can be disproven.
Actual job offers
Job offers are signals that perhaps not all of a worker's future loss of earnings are work-related. If the worker accepts a job offer, the earnings loss from the work injury might be eliminated or reduced.
However, it is not enough for the WSIB to simply look at evidence that a worker refused, or was unable to accept, a job offer and conclude that the work injury is not the cause of the future loss of earnings. There must be evidence that the job which the worker refused is suitable and available. The job must meet the criteria outlined in document 19-02-10, RTW Assessments and Plans.
SO identified in the RTW plan (with training)
A worker who has not returned to pre-injury employment because of a work-related injury/disease may be referred for a RTW assessment, at which time the SO is identified, see 19-02-07, RTW Overview and Key Concepts, and 19-02-10, RTW Assessments and Plans.
Lack of co-operation
The purpose of MR programs and RTW activities is to eliminate or lessen the effects of work injuries on a worker's physical and earnings ability. Therefore, if a worker fails to co-operate in an MR program or RTW activities, not all of the future loss of earnings may be related to the work-related injury.
If a worker is not co-operating in the RTW assessment or plan, the FEL benefit is based on 90% of the difference between the pre-injury net average earnings and the net average earnings associated with the identified SO.
This policy applies to all FEL decisions made on or after March 1, 2021, for accidents from January 2, 1990 to December 31, 1997.
This document replaces 18-04-02 dated February 15, 2013.
This document was previously published as:
18-04-02 dated October 3, 2007
18-04-02 dated October 12, 2004
18-04-02 dated June 15, 1999
7.1* dated January 1, 1998
05-05-02* dated September 4, 1991.
*Documents were replaced by 18-04-02 dated June 15, 1999.
Workers' Compensation Act, R.S.O. 1990, as amended
Section 42, 43
#30, March 24, 2021, Page 588