On March 22, 2007, the Ontario Government introduced Bill 187, the Budget Measures and Interim Appropriation Act, which included several amendments to the Workplace Safety and Insurance Act ("WSIA"). The bill was passed on May 17, 2007 and became effective on July 1, 2007.
The amendments to the WSIA include changes to the indexing for workers receiving partial wage loss benefits, additional benefits for workers who are beyond the 72-month lock-in review, changes to the way worker benefits are calculated for ongoing wage loss benefits, and an increase to the lump sum payout threshold for Loss of Retirement Income benefits. The changes have resulted in the implementation of a number of draft
Operational Policies which came into effect July 1, 2007.
1. Changes to cost of living indexing for partial wage loss benefits As a result of Bill 187, approximately 155,000 workers receiving partial wage loss benefits will have a cost of living adjustment of 2.5 per cent for three consecutive years. The adjustments will take place on July 1, 2007, January 1, 2008 and January 1, 2009. This change only affects workers receiving a partial wage loss benefit, as they are indexed using the Modified Friedland Indexing formula. Benefits paid to workers who receive a full wage loss benefit are indexed using the Consumer Price Index on January 1 of each year.
When asked why no changes have been contemplated beyond 2009, the Workplace Safety and Insurance Board ("WSIB") confirmed that the Ontario Government makes all decisions on changes to the Act. The WSIB administers the Act and will provide support in any regulation developed on this issue.
2. Deteriorations Beyond the 72 Month Lock-In
Previously, the WSIA did not allow for a review of a worker's benefits if they suffered a temporary or permanent deterioration of their compensable condition after their 72 month lock-in or 60 month post Future Economic Loss ("FEL") determination. The amendments from Bill 187 will allow some workers to receive additional benefits in the event of a significant deterioration of their condition post lockin. The WSIB will look at the determination and the need for future active treatment, surgery, objective medical information, changes to the worker's functional abilities or job change impacts to determine if there has been a significant deterioration.
3. "Determining" vs. "Deeming" Worker Benefit Level
The changes included in Bill 187 remove the word "deeming" from the WSIA and replaces it with the word "determining" with respect to worker earnings in the context of return-to-work and following retraining. In the past, worker earnings were "deemed" based on earning potential for a particular job. Workers were not so much concerned that the WSIB was determining their future level of income. Instead, they were concerned with the manner in which this function was being performed.
The changes included in the law and Operational Policies cause the WSIB to examine a worker's personal and vocational abilities, functional abilities, the suitability of work and the availability of suitable employment in the worker's local labour market. The WSIB will evaluate the worker's circumstances to determine the likelihood of the worker reasonably securing a job, as the ultimate goal is to get the worker back to work.
The changes demonstrate a goal of gaining an understanding of the worker's unique situation and making decisions to reflect that understanding. In situations where workers secure employment, but their earnings are below their pre-accident level, the WSIB will consider their actual earnings in setting and paying benefits.
4. Loss of Retirement Income Threshold
Loss of Retirement Income ("LRI") benefits are paid to workers by the WSIB once they reach age 65 and are no longer entitled to wage loss benefits. Workers may receive this money by lump sum or by monthly instalment, depending on how much money is in their LRI account as established by the WSIB. The changes to the WSIA increase the threshold amount for lump sum payment from $1,166.44 to $3,000. This change will increase the number of workers who will receive their LRI benefit by lump sum, giving them more financial control.
The WSIB has commented that the changes brought about through Bill 187 will not cause an increase in premium rates. The WSIB has also indicated that if all system partners continue to work together to aggressively pursue accident prevention and return to work, it should still be able to achieve its goal of eliminating its unfunded liability by 2014.
The Operational Policies created due to Bill 187 became applicable July 1, 2007 but remain in draft format as the WSIB considers stakeholder feedback. The WSIB is accepting feedback on the policies until November 1, 2007. For more information on Bill 187 and the changes listed above, visit www.wsib.on.ca/wsib/wsibsite.nsf/public/PolicyUpdatesBill187.