Workers' Compensation Matters
Dealing with WCB & CPP Disability Claims
The first step in each WCB claim is for the Board to determine which conditions have been accepted. You may have suffered multiple injuries, some more serious than others. You may have developed an occupational disease instead of an injury. Some workers are unable to pinpoint a specific workplace accident, but develop health problems over time. Many workers suffer from psychological conditions due to their injury, such as depression, post-traumatic stress disorder, or anxiety.
The crucial factor is whether your condition occurred due to your employment. As an insurance company with a goal to deny entitlement, the Board may deny your claim on the basis that there is no connection between your symptoms and your job duties. For example, the Board may point to a pre-existing condition to deny or minimize the scope of your claim. This is usually preceded by a referral to a Board “Medical Advisor.” Most WCB Medical Advisors are non-practising general practitioners who provide opinions to Case Managers based on referral memos.
Our lawyers will attempt to ensure that you receive compensation for the entirety of your condition. We have successfully handled a very wide variety of cases involving physical and psychological disabilities, including limb amputations, disc herniations, sciatica, low back injuries, knee injuries, shoulder injuries, elbow injuries, wrist injuries, neck injuries, burns, disfigurement, occupationally-related respiratory disorders, cancers, fibromyalgia, eye disabilities, chronic pain syndrome, carpal tunnel syndrome, epicondylitis, tendinitis, bursitis, cubital tunnel syndrome, major depression, post-traumatic stress disorder, Reflex Sympathetic Dystrophy Syndrome, Chronic Regional Pain Syndrome, sexual dysfunction, bladder/urinary dysfunction, alcohol dependency, (various) nerve damage cases, hearing loss, tinnitus, traumatic head/brain injuries, post-concussion syndrome, and more.
After a claim is accepted, the Board will provide you with the health care benefits they deem necessary to treat your condition. This may include coverage for medications, referrals to various rehabilitation programs, and counselling for psychological conditions.
You may suffer from multiple conditions, all attributable to a workplace incident or to your work duties. However, you will only receive benefits for the conditions accepted under your claim. Additionally, the Board may deny coverage for certain treatment or medications on the basis that they are not “reasonably necessary” to treat your condition.
Once again, the Board’s goal is to minimize conditions accepted in order to minimize claims (and treatment) costs.
For as long as your condition remains temporarily disabling, the Board should provide you with wage loss benefits. Regular medical reports from your doctors are required. The amount of these payments is based on the weekly wage rate set on your claim.
Your wage rate depends on how much you earned before your injury. For the first 10 weeks that you miss work, you will receive benefits based on an initial wage rate. This rate is set at 90% of the income you earned in the three months before your injury. If your recovery takes longer than 10 weeks, the Board will calculate your benefits based on a long-term wage rate. This rate is set at 90% of the income you earned in the 12 months before your injury.
For workers who are able to make a full recovery, wage loss benefits will end when their conditions resolve and they are able to return to work.
For others workers, wage loss benefits will end when their medical condition is no longer expected to undergo any significant changes. You may find that your doctors have no more treatment options to offer, and advise that further improvement is unlikely. This means that your condition has stabilized, or reached medical plateau. You are left with a physical or psychological disability (or both), and you find that you cannot engage in the same activities as before you were injured. At this point, the Board should refer your claim to the Disability Awards Department for evaluation of your entitlement to a disability pension.
Problems arise when the plateau date determined by the Board is premature. This will result in termination of your wage loss benefits before your condition has resolved, or while your condition is still improving.
A more significant issue arises when you suffer from a permanent disability, yet the Board decides that your condition has resolved and that you should be able to return to work. In such a case, your claim will not be referred to the Disability Awards Department, which is tantamount to a denial of your right to a disability pension.
As with most issues in your claim, the Board’s goal is to minimize your wage rate, wage loss duration, and permanent conditions accepted.
In some cases, the Board provides workers with Vocational Rehabilitation (“VR”) benefits. These may include payments equal to your wage loss benefits. You should be aware that this type of assistance is offered at the Board’s discretion, and is limited in duration and quality. Not every injured worker will receive VR benefits. Additionally, to remain eligible for VR assistance, you are required to cooperate fully in the VR plan formulated by the Board. You will only receive VR benefits after your condition has stabilized.
VR plans vary widely. Some workers are able to return to their pre-injury employer, but require assistance adapting to modified job duties. Other workers may have lost their pre-injury position, and require assistance in their job search. For workers who must find an entirely new occupation, the Board may provide additional training.
However, many workers find that the Board has prepared a VR plan that is incompatible with their post-injury abilities. You may not be able to physically tolerate the occupations deemed appropriate by the Board, or you may find that you cannot meet the demands made by VR staff.
For cost reasons, the Board usually chooses private facilities offering relatively inexpensive courses.
Workers who have not fully recovered from their injuries are considered for a disability pension. This is referred to as a permanent partial disability (“PPD”) award. To be eligible for a PPD award, your injury must result in a permanent disability that will impair your future earning potential. You will only receive a PPD award after your condition has stabilized.
Your PPD award will be calculated as a percentage of total disability, and the monetary amount will depend on the wage rate set on your claim. The Case Manager will refer your file to the Disability Awards Department, who will contact you and schedule a Permanent Functional Impairment Evaluation (“PFIE”). During the PFIE, you will be required to perform physical tests measuring your level of impairment (if your disability is physical), or to undergo an assessment by a psychologist (if your disability is psychological). The Board’s Permanent Disability Evaluation Schedule (“PDES”) is a set of guidelines containing percentages for many types of permanent disabilities.
A few months after the PFIE, the Board will issue a decision letter notifying you of your pension entitlement. If your award amounts to less than $200 per month, you will receive a lump sum award. If your award amounts to more than $200 per month, you will receive a monthly pension, payable to age 65 in most cases.
Often the Board completely ignores objective evidence (e.g. CT scans, MRI findings) of disability and classifies serious disabilities as “chronic pain.” Chronic pain is quantified by the Board as a 2.5% (out of 100%) disability.
Some workers realize that their disability prevents them from returning to their former jobs, or that they cannot find new employment matching their pre-injury income. In such cases, they may be eligible for a loss of earnings (“LOE”) award.
A 100% LOE award will be granted to workers who are deemed to be unemployable, and will be equivalent to the amount of your wage loss benefits.
A partial LOE award is granted to workers who are able to find a new job, and will be equivalent to the difference between your current income and your pre-injury wage rate. This is a very valuable award, because it will approximate the income you earned before you were injured.
You should be aware that not all workers who have lost their job are eligible to receive an LOE award. In fact, the Board denies LOE assessments in most cases. You will usually be assessed for an LOE award if you are currently earning significantly less than you did before you were injured. You may feel that you fit this description, and that you should receive an LOE award. However, the Board routinely denies LOE entitlements by determining that a worker can adapt to a suitable occupation. On this basis, the Board may conclude that you will be able to meet or exceed your pre-injury earnings, or that you are only entitled to a partial LOE award.
Canada Pension Plan Disability Benefits
Did you know that you may be entitled to a monthly CPP disability benefit if you are under 65, stopped working because of a medical condition, and have paid into the Canada Pension Plan?
To be eligible for CPP disability benefits, you must:
- Be under 65 years old;
- Have made enough contributions to the CPP while working; and
- Have a disability that is considered “severe and prolonged” as defined by the CPP legislation.
The Minimum Qualifying Period (“MQP”) is the minimum number of years that you need to have contributed to the CPP to be eligible for a disability benefit. You must show that you were disabled by the end of your MQP. Under the current rules, if you became disabled before January 1, 1998, you must have made valid contributions to the CPP in two of the three years, or five of the ten years before you became disabled. If you became disabled after January 1, 1998, you must have made valid contributions to the CPP in four of the last six years before you became disabled. If you have made valid contributions to the CPP for at least 25 years, you may meet the contributory requirements with valid contributions in three of the last six years before you became disabled. If you do not know whether you have made enough contributions to the CPP, contact your local Service Canada office at 1-800-277-9914. You may request that they mail you a Statement of Contributions. You may also view and print an official copy of your Statement of Contributions from the Service Canada website: www.servicecanada.gc.ca
Section 42(2) of the CPP legislation provides:
- a person shall be considered to be disabled only if he or she is determined in prescribed manner to have a “severe and prolonged” mental or physical disability, and for the purposes of this paragraph,
- a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and
- a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and
- a person is deemed to have become or to have ceased to be disabled at the time that is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
In other words, a disability is considered “severe” if it prevents you from doing your former job, or any other job, on a regular basis. A disability is considered “prolonged” when it is likely to be long term, of indefinite duration, or is likely to result in death.
CPP disability application forms are available online from the Service Canada website: www.servicecanada.gc.ca. You may also contact your local Service Canada office at 1-800-277-9914 to request that they mail you an application kit.
Under the CPP legislation, your monthly payments begin four months after you are deemed disabled. Therefore, the first payment that you receive after your application for CPP disability benefits is approved will include your first monthly payment, along with a retroactive lump sum payment. The monthly CPP disability payment includes a fixed amount that everyone receives ($424.43 per month in 2009), plus an amount based on how much you contributed to the CPP during your entire working career. If you have a dependent child under 18 years of age, or you have a child between the ages of 18 and 25 who is attending school full-time, he or she may receive children’s benefits. Applications for children’s benefits are included in the CPP disability application kit.
Yes, CPP disability benefits are considered taxable income. You may contact Service Canada and ask that they deduct your income tax each month. You may also visit Service Canada’s website: www.servicecanada.gc.ca, to access the Income Tax Deduction Request form.
Your monthly CPP disability benefit will end:
- If your medical condition no longer prevents you from working at any job on a regular basis, or
- If you turn 65 years old, or
- Upon your death.
CPP provides benefits to all eligible contributors, regardless of whether they are receiving disability income from other sources. Therefore, if you begin receiving disability payments from a private insurer, this will not affect your monthly CPP disability benefit.