November 2, 2012 By: Peggy King
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Benefits Payable More Than 72 Months after the Date of Accident

Currently the WSIB does not review a worker’s Loss of Earnings (LOE) benefit more than 72 months after the date of the worker’s injury unless:

  • before the 72-month period expires, the worker fails to notify the WSIB of a change in circumstances or engages in fraud or misrepresentation in connection with his or her claim for benefits under the insurance plan, or
  • the worker was provided with a labour market re-entry plan and the plan is not completed when the 72-month period expires, or
  • after the 72-month period expires, the worker suffers a significant deterioration in his or her condition that

    • results in a redetermination of the degree of permanent impairment
    • results in an initial determination of a permanent impairment
    • is likely, in the WSIB’s opinion, to result in a redetermination of the degree of permanent impairment, or
  • after the 72-month period expires, the worker suffers a significant temporary deterioration in his or her condition that is related to the injury, or

    • when the 72-month period expires,
    • the worker and the employer are co-operating in the worker’s early and safe return to work, or
    • the worker is co-operating in health care measures.

This means that should a worker obtain employment after the 72 months period expires, any earnings for income would not be offset from the LOE benefits unless the worker failed to notify the Board of a change in circumstances prior to that date, engaged in fraud, or misrepresented themselves with respect to obtaining benefits under their claim. As well, the WSIB would not be able to offset CPP or QPP benefits beyond the 72 months mark.

On October 22, 2012, the Ontario Government announced proposed changes to the Workplace Safety and Insurance Act that would, if passed, allow the WSIB to review LOE after the 72 month period, if an injured worker’s condition improved, or she or he rejoined the work force. The proposal may also allow the WSIB to base survivor benefits on the average earnings of the worker's occupation or trade.

It will be interesting to follow this proposal, and if passed, determine if the changes would retroactively affect active claims, or be limited to new claims.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Personal Injury