Generational Equity- How Do Young Injured Workers Fare?

October 11, 2019

Spoiler alert: Not well.

Young injured workers face the same struggles as other injured workers. The WSIB will reduce loss of earnings compensation based on unrealistic deemed post-injury earnings for young workers, in the same way that they do for other injured workers. The WSIB will often ignore pertinent findings from their treating doctors, as they do for other injured workers.

The young have, in addition to these struggles, some issues that other injured workers typically do not have:

1. Low earnings basis, as their careers are not yet mature
2. Lower non-economic loss awards, as ratings are affected by better than average pre-injury range of motion
3. Social expectations of quicker recovery from "minor injuries" and youthful inexperience

1. Low Earnings Basis

There are young people doing very, very well. Some are tech multi-millionaires or highly-paid professionals. Almost all of these young people are not covered under Ontario's workers' compensation law. Those who are covered under the scheme are almost always working in precarious unsteady work (contract, part-time, seasonal) or if they do have regular work, are earning much less than they can expect to earn 5 or 10 years later. Most of those in precarious, unsteady work would move to more regular work 5 or 10 years later.

For workers in unsteady work who suffer a significant impairment lasting more than 13 weeks, the WSIB will review their compensation rate and use their average earnings in the 2 years prior to the injury. For a 23 year old (say), these figures are invariably low and much, much less than they could reasonably expect to earn (but for the impairment) 5 or 10 years later. For a worker who cannot return to pre-injury work, the Board will usually determine at some point that the worker is capable of earning a deemed wage of minimum wage ($14 per hour) for 40 hours per week, and this is less than the worker's earnings in the 2 years prior to the accident. Therefore, no ongoing loss of earnings compensation is payable.

For young workers in regular work, the situation is not quite so bleak. A young worker who is in a trade and earns (let's say) $40,000 per year. After an injury, the worker cannot return to their trade. Their co-workers, some of whom the worker knows, are several years later, earning $60,000 or more. The worker may receive loss of earnings compensation in the long run, but it is based on the pre-injury earnings with minimal Consumer Price Index increases. The worker is effectively frozen at age 23 earnings.

For most young injured workers, long-term loss of earnings compensation is grossly inadequate or non-existent. The WSIB could in my view significantly ameliorate this situation for permanently impaired young workers by recalculating the worker's pre-injury earnings to take into account pre-injury earning capacity rather than pre-injury earnings. The power to do this can be found in subsection 50(3) of the Act. Unfortunately, in the current environment, it is unlikely that the WSIB would interpret the statute in this way.

2. Non-Economic Loss Determinations

Some injuries are rated the same, no matter what the age of the worker is. An amputation is an amputation. Lesser musculo-skeletal injuries are different. Often, the key factor for rating an injury is range of motion of a joint after the injury. The WSIB compares the post-injury range of motion with standards which are "normal" range of motion. Of course, there is a wide variance in pre-injury normal range of motion, depending on genetics, pre-injury fitness and age. Younger people typically have significant better pre-injury range of motion than other workers. When injured, they may lose the same percentage of their range of motion, but will end up with a higher absolute value and end up with a lower impairment rating and sometimes even a 0 rating despite having an actual loss of range of motion. A 0 rating will result in the termination of loss of earnings benefits.

This phenomenon is not restricted to young people. Gym teachers, for instance, will typically end up with lower impairment ratings for joint injuries; it is however much more common for the young.

3. Social expectations and youthful inexperience

Young people are more inclined to take risks than other workers, and that applies to return to activity following injury. Some of that is for good reason. The body heals quicker (on average) when one is young. Management and co-workers know this intuitively and are inclined to anticipate quicker recovery after injuries (unless the injuries are obviously very severe). Young people are less likely to resist these kinds of pressures because they are less likely to have had previous experience with injury or illness. The social aspect of injury recovery is reinforced by financial pressures resulting from the low earnings basis. A young person, who gets a meager cheque from the WSIB for loss of earnings, will be more inclined to prematurely return to work and put themselves at risk of further injury.

Surely there must be a bright side for young injured workers. If you must, there is a tiny light. The light is found in the WSIB return to work policies for some young workers. The policy in Operational Policy Manual Document 19-03-03 allows the Board to fund a retraining option beyond the worker's pre-injury earnings, where the worker is between 15-24 and earns less than 50% of the average industrial wage and cannot return to their occupation. I am told by the Board that the policy is rarely used, but it is there and workers and their representatives should use it. For young injured workers who do not meet these criteria, the retraining program that may be offered will be limited by the typically low pre-injury earnings.

https://www.wsib.ca/en/operational-policy-manual/determining-suitable-oc...