Update on Non-Economic Loss (NEL) award review

We are always checking to make sure that we apply our policies consistently and fairly. We looked at the way that we apply our policy on non-economic loss benefits and decided to reconsider when we reduce benefits for pre-existing conditions.

Starting December 15, 2017, we will no longer reduce benefits for people with an asymptomatic pre-existing condition if it is non-measureable. We will also reconsider the approximately 4,500 decisions about benefits that were made between January 2012 and December 15, 2017 where there was a reduction because of an asymptomatic pre-existing condition.

We have issued a Policy clarification memo (PDF) and will consider any new claims using this updated practice and we will send letters to anyone impacted by this review of NEL benefits.

As a result of the review, it is now taking longer than eight to 10 weeks to complete a decision for newly referred NEL cases. We are working hard to improve the timelines so that we can get decisions to people as soon as possible.

Questions and answers

Why are you reviewing non-economic loss (NEL) decisions?

As part of our commitment to service excellence, we regularly review our policies and their application to make sure we are applying them consistently and fairly. We also monitor WSIAT decisions to look for trends.

Based on this review, we found we need to clarify how pre-existing conditions are considered when determining NEL benefits.

For more information on pre-existing conditions check out Policy 15-02-03.

What does this clarification mean?

The WSIB is reviewing NEL decisions made since 2012 where the degree of permanent work-related impairment (PI) was reduced due to a pre-existing condition and adjusting the decision where applicable.

How will someone know if their claim is being reviewed? When will someone be notified when an adjustment on their claim has been completed?

We will be in contact with everyone whose claim is being reviewed. Each claim is unique so this may take a number of months. They will receive a letter when their review is complete whether there is an adjustment or not. The reviews started in December 2017 and are expected to be completed by mid-2018.

Are there any claims that will not be adjusted?

Although your claim may have been reviewed as a result of the clarification, it may not necessarily result in an adjustment. To discuss your specific case, you may contact your NEL clinical specialist who reviewed your case.

If the NEL decision is adjusted, will this impact my loss of earnings (LOE) benefits?

No, the degree of permanent impairment that is determined does not affect entitlement to any loss of earnings (LOE) benefits.

A NEL benefit is separate from any loss of earnings you may be entitled to due to your work-related injury/disease and is not related to your ability to work.

Isn’t an increase in a NEL benefit a material change in circumstance that would result in increased LOE benefits?

No, a material change in circumstances includes changes to a person’s health status, such as an improvement or deterioration.
LOE benefits are not generally impacted by pre-existing conditions as long as there is an ongoing work-related impairment.

For more information review Policy 15-02-03, Pre-existing Conditions.

Why does the WSIB consider pre-existing impairments when determining NEL benefits?

We have a legislative obligation to draw a line between work-related and non-work-related impairments to make sure benefits are only provided for work-related impairments.

What if I previously objected to my NEL decision?

If you previously objected to a NEL decision because the degree of your permanent impairment was reduced due to a pre-existing condition, your case will be reconsidered based on the policy clarification and you will be notified of the outcome.

If I’m an employer, how will any increase in a NEL benefit impact my accident cost statement?

If the adjustment is made in 2018:

  • The experience rating adjustment for employers in the NEER and CAD-7 programs will only be impacted if a NEL adjustment is made in a claim with an accident date in 2014 or later.
  • Adjustments made in claims with accident dates in 2013 or earlier will not impact their experience rating adjustments.
  • For employers in the MAP program, adjustments to the NEL benefit may only impact their premium rate adjustment for 2020, where, as a result of the adjustment, total claim costs exceed $5000.

Who should I call if I have questions or concerns?

Please call us at 1-800-387-0750 and inform the telephone representative that you have questions about a NEL review.