When the WSIB allows a claim and pays lost time benefits- 85 percent of the worker's pre injury net average earnings, it does not explain to the worker how those net average earnings are calculated. What the WSIB normally does is look to the earnings information provided by the employer on its Report of Injury/Disease form (Form 7). This information is often incomplete or inaccurate. Common problems leading to an unfairly low compensation rate include:
- failure to report overtime earnings
- no reference to concurrent employment earnings
- inaccurate Net Claim Code- usually due to failure to update
- inaccurate characterization of employment as seasonal and length of season
- use of income tax statements without appropriate adjustments for contractors
The law allows the WSIB to review the compensation rate after the initial allowance of the claim. It does so routinely for workers in irregular/seasonal employment after 13 weeks of benefits, and less routinely for other workers. There are a number of complex rules governing the long-term recalculation such as the period of the recalculation and allowable lost time which is excluded from the calculation.It is wise to get legal advice about any recalculation. The WSIB typically makes a long-term recalculation decision which contains a time limit to appeal, 6 months from the date of the decision. The decision is rarely completely transparent and may be very important to the worker in the long run.
If a worker returns to work after the injury and stops working again afterwards, the WSIB repeats the process and pays the worker the higher of the compensation rate associated with the pre-injury earnings and the pre-layoff earnings. There is also a long-term recalculation for irregular/seasonal workers who receive 13 weeks of benefits after a layoff following an injury.
The calculations can get quite complicated, and there is a "downside risk". This means that a worker who objects to the compensation rate runs the risk that the WSIB may determine that the compensation rate was too high and not too low, and reduce payments. When done with care though, compensation rate objections can be a source of significant additional money for injured workers and often do not require a lengthy appeals process.