Law
s.53(6)
In all cases where a worker returns to work following a work-related injury, and then has a recurrence, the worker’s average earnings are the higher of
- the pre-injury (escalated) average earnings, or
- average earnings at the time of the most recent employment.
Policy
If a worker’s average earnings at the time of the most recent employment (recurrence earnings) are
- higher than the worker’s initial short-term or long-term (escalated) average earnings, whichever applies, the WSIB uses the recurrence earnings to pay the loss of earnings (LOE) benefits
- lower than or the same as the worker’s initial short-term or long-term (escalated) average earnings, whichever applies, the WSIB continues to use the initial short-term or long-term average earnings to pay the LOE benefits.
For information on the average earnings policy model see 18-02-01, Overview.
Guidelines
Definitions
Pre-injury (escalated) average earnings — are either a worker’s initial short-term (escalated) average earnings or long-term (escalated) average earnings, whichever applies.
Short-term average earnings cycle — is a consecutive or cumulative 12-week period in which LOE benefits are paid. For more information see 18-02-02, Determining Short-term Average Earnings.
Long-term average earnings cycle — is the period of benefits paid after a recalculation of the short-term average earnings. For more information see 18-02-03, Determining Long-term Average Earnings: Workers in Permanent Employment, and 18-02-04, Determining Long-term Average Earnings: Workers in Non-Permanent Employment.
Recurrence short-term average earnings — are the average earnings at the time of the most recent employment.
Recurrence long-term average earnings are the average earnings from either
- a new long-term average earnings calculation for the 12 or 24 month period prior to the recurrence, whichever applies, or
- an amended long-term average earnings calculation in which the decision-maker adds the most recent earnings and time worked to the initial, new, or amended long-term average earnings.
Recurrences during the short-term average earnings cycle
Return to work periods of 28 days or less
If a worker
- returns to work, and
- has a recurrence within 28 calendar days,
the decision-maker restarts LOE benefits using the higher earnings, but does not begin a new short-term average earnings cycle.
In these cases, the decision-maker pays LOE benefits for the balance of the initial short-term average earnings cycle. For these cases, the short-term average earnings cycle is used to pay LOE benefits for 12 cumulative weeks.
See Appendix 1 for an example of return to work periods of 28 days or less.
Return to work periods of more than 28 days
If a worker
- returns to work, and
- has a recurrence after a period of more than 28 calendar days,
the decision-maker restarts LOE benefits using the higher earnings, and starts a new 12-week short-term average earnings cycle.
See Appendix 2 for an example of return to work periods of 28 days or more.
If it is not possible, for comparative purposes, to determine the recurrence short-term average earnings see Unable to determine short-term average earnings, in document 18-02-02, Determining Short-term Average Earnings.
Recalculations following recurrences
If the worker receives LOE benefits for either
- the balance of the initial short-term average earnings cycle, or
- the 12 weeks of a new short-term average earnings cycle,
the decision-maker may recalculate the worker’s average earnings.
The decision-maker only conducts a recalculation if the average earnings figure used to pay LOE benefits following the recurrence does not fairly reflect the worker’s long-term earnings profile.
For more information on differences in earnings profile, see 18-02-03, Determining Long-term Average Earnings: Workers in Permanent Employment and 18-02-04, Determining Long-term Average Earnings: Workers in Non-Permanent Employment.
The recalculation of a new long-term rate is based on the 12 or 24 month period prior to the recurrence, whichever applies.
If the decision-maker determines that an insufficient period of time exists to calculate the long-term average earnings the decision-maker may use other long-term average earnings. (For more information see Workers with no prior employment history in document 18-02-04, Determining Long-term Average Earnings: Workers in Non-Permanent Employment).
Short-term average earnings used beyond 12 weeks
In some cases, the decision-maker may decide that it is fair to continue paying LOE benefits beyond 12 weeks, using the initial short-term average earnings (see 18-02-03, Determining Long-term Average Earnings: Workers in Permanent Employment).
If
- the worker’s short-term average earnings were not recalculated, and
- the worker returns to work, and
- the worker has a recurrence,
the decision-maker restarts LOE benefits using a new 12-week short-term average earnings cycle.
The average earnings for the new short-term average earnings cycle is the higher of the
- initial short-term (escalated) average earnings, or
- recurrence short-term average earnings.
If it is not possible, for comparative purposes, to determine the recurrence short-term average earnings, see Unable to determine short-term average earnings in document 18-02-02, Determining Short-term Average Earnings.
If the worker receives LOE benefits for the 12 weeks of the new short-term average earnings cycle, the WSIB may recalculate the worker’s average earnings.
The decision-maker conducts a recalculation if the average earnings figure used to pay LOE benefits following a recurrence does not reflect the worker’s long-term earnings profile.
The recalculation of a long-term rate is based on the 12-month period prior to the recurrence, subject to a break in the employment pattern.
Recurrences during the long-term average earnings cycle
If a worker returns to work and has a recurrence, the decision-maker restarts LOE benefits using the higher of the
- initial (escalated) long-term average earnings, or
- recurrence short-term average earnings.
If the initial long-term average earnings are higher, this figure is used by the decision-maker to restart LOE benefits.
If the recurrence short-term average earnings are higher, the decision-maker restarts LOE benefits using a new 12-week short-term average earnings cycle.
Exception
If
- the worker’s long-term average earnings are based on earnings from non-permanent employment, and
- the worker returns to work in non-permanent employment, and
- the worker then has a recurrence within 28 calendar days,
the decision-maker restarts LOE benefits, but does not begin a new short-term average earnings cycle.
In this case, the worker’s LOE benefits are based on the greater of
- the initial long-term (escalated) average earnings, or
- an amended long-term average earnings calculation that incorporates the short-term recurrence earnings.
An amended long-term average earnings figure would only be calculated if the short-term recurrence earnings are greater than the initial long-term average earnings. If the initial long-term average earnings are greater, the decision-maker continues paying LOE benefits based on that figure.
To calculate an amended long-term average earnings figure, the decision-maker adds the short-term recurrence earnings and time worked to the initial long-term average earnings. This figure is used to pay ongoing LOE benefits.
See Appendix 3 for an example of return to work periods of 28 days or less for workers in non-permanent employment.
Recalculating to long-term average earnings
If the worker receives benefits for the 12 weeks of a new short-term average earnings cycle, the WSIB may recalculate the worker’s average earnings.
The decision-maker conducts a recalculation if the average earnings figure used to pay LOE benefits following a recurrence does not reflect the worker’s long-term earnings profile as of the recurrence.
The recalculation of a long-term rate is based on the 12 or 24 month period prior to the recurrence, subject to a break in the employment pattern.
The decision to use 12 or 24 months as the recalculation period is based on whether the worker was in permanent or non-permanent employment at the time of the recurrence (see 18-02-03, Determining Long-term Average Earnings: Workers in Permanent Employment, and 18-02-04, Determining Long-term Average Earnings: Workers in Non-Permanent Employment).
Sufficient recalculation periods
In some cases, workers in non-permanent employment may not have worked long enough to establish a sufficient recalculation period.
Generally, decision-makers should consider
- return to work periods of 12 months, or
- in the case of seasonal or cyclical workers, a reasonable length of the actual season/cycle,
as sufficient to establish a recalculation period for workers in non-permanent employment.
If the worker has not worked these lengths of time, whichever applies, the decision-maker can determine the recurrence long-term average earnings by using the long-term average earnings of another worker similarly employed by the accident employer.
If this information is not available, see Workers with no prior employment history, in document 18-02-04, Determining Long-term Average Earnings: Workers in Non-Permanent Employment.
Further recurrences
If a worker has more than one recurrence, LOE benefits are always based on the higher of the relevant
- initial escalated average earnings, or
- average earnings at the time of the most recent employment.
Lost time due to health care appointments/treatment
Following a return to work, a worker may experience further lost time due to health care appointments and/or health care treatment. In these cases, the payment of LOE benefits for the lost time does not restart the short-term average earnings cycle.
Pre-injury long-term average earnings not calculated
If the initial long-term (escalated) average earnings were not calculated, the decision-maker assumes that the long-term average earnings at the time of the most recent employment are higher than the initial long-term average earnings. Unless the worker supplies the decision-maker with the appropriate information to the contrary, the decision-maker uses the long-term average earnings at the time of the most recent employment.
Application date
This policy applies to all decisions made on or after December 1, 2002, for all accidents on or after January 1, 1998.
Document History
This document replaces 18-02-06 dated December 1, 2002.
This document was previously published as:
18-02-06 dated September 14, 1999
4.1 dated January 1, 1998.
References
Legislative Authority
Workplace Safety and Insurance Act, 1997, as amended
Section 53
Minute
Administrative
#6, June 23, 2004, Page 375
Appendix
Appendix 1
Example
Short-term average earnings -- return to work periods of 28 days or less
John is a permanently employed Monday to Friday worker with gross earnings of $600 per week. John is injured on January 3, 2000. The decision-maker pays LOE benefits of $391.22 per week based on the short-term average earnings ($600) until February 14, 2000 (six weeks). John returns to accommodated pre-injury work on February 15, 2000 earning $800 gross per week. On February 28, 2000, 14 days following the return to work, John suffers a recurrence and is off work again.
Since John’s earnings increased, the decision-maker pays LOE benefits of $494.55 per week based on the recurrence short-term average earnings ($800).
The decision-maker does not start a new short-term average earnings cycle. The same short-term average earnings cycle continues from the sixth week resulting in 12 weeks of LOE benefits paid over 14 calendar weeks.
Appendix 2
Example
Short-term average earnings -- return to work periods of more than 28 days
John is a permanently employed Monday to Friday worker with gross earnings of $600 per week. John is injured on January 3, 2000. The decision-maker pays LOE benefits of $391.22 per week based on the short-term average earnings ($600) until February 14, 2000 (six weeks). John returns to accommodated pre-injury work on February 15, 2000 earning $800 gross per week. On May 1, 2000, 77 days following the return to work, John suffers a recurrence and is off work again.
The decision-maker starts a new short-term average earnings cycle because John’s return to work period was more than 28 days.
Since John’s earnings increased, the decision-maker pays LOE benefits of $494.55 per week based on the recurrence short-term average earnings ($800).
Appendix 3
Example
Return to work periods of 28 days or less for workers in non-permanent employment
John is employed on a non-permanent/seasonal basis earning $600 per week. He is injured on January 3, 2000 and receives 12 weeks of LOE benefits at $391.22 per week based on the short-term average earnings ($600). Because John was in non-permanent employment at the time of the accident, an automatic recalculation is required. The decision-maker requests John’s gross earnings for the 24-month period before the injury, January 3, 1998 to January 2, 2000. Based on the long-term average earnings calculation ($494.95*) John receives an LOE benefit of $330.57
* The long-term average earnings calculation is the sum of the gross annual earnings, which includes gross employment earnings of $38,400 and Employment Insurance benefits of $13,216. In this case, the decision-maker calculates the figure to be $51,616 gross per year {($51,616/730) x 7 = $494.95 gross per week}.
John returns to accommodated pre-injury work (non-permanent) on April 24, 2000 after 16 weeks of full LOE benefits earning $725 gross per week. On May 8, 2000, 14 days following the return to work, John suffers a recurrence and is off work again. The decision-maker does not start a new short-term average earnings cycle. The long-term average earnings cycle continues. The decision-maker compares John’s recurrence short-term average earnings of $725 gross per week with John’s initial long-term average earnings of $494.95 gross per week.
Since the recurrence short-term average earnings are higher, the decision-maker adds this figure to the initial long-term average earnings figure to produce an amended long-term average earnings. John is now paid LOE benefits of $333 per week based on his new long-term average earnings ($499.28*).
* ($51,616 + $1,450) x 7 = $499.28 gross per week
730 + 14
