FEL Presumption

Policy

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 19-03-03, Determining Suitable Occupation, or
  • a worker's lack of co-operation in a medical rehabilitation (MR) program or work reintegration (WR) activities.

Guidelines

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 decision-makers 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 19-03-03, Determining Suitable Occupation.

SO identified in the Work Transition plan

A worker who has not returned to pre-injury employment because of a work-related injury/disease may be referred for a work transition (WT) assessment, at which time the SO is identified, see 19-02-01, Work Reintegration Principles, Concepts, and Definitions and 19-03-03, Determining Suitable Occupation

Lack of co-operation

The purpose of the MR program and WR activities is to eliminate or lessen the effects of work injuries on the worker's physical and earnings ability. Therefore, if a worker fails to co-operate in a MR program or WR 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 WT 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.

Application date

This policy applies to all FEL decisions made on or after February 15, 2013, for accidents from January 2, 1990 to December 31, 1997.

Document History

This document replaces 18-04-02 dated October 3, 2007.

This document was previously published as
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.

References

Legislative Authority

Workers' Compensation Act, R.S.O. 1990, as amended
Section 42, 43

Minute

Administrative
#24, January 28, 2013, Page 506