Policy Manual Overview

Section 1. - Entitlement

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

The policies contained in this section deal primarily with issues of determining when a worker is eligible for workers' compensation benefits, as opposed to the benefits payable after entitlement has been established -- these are described in later sections.

Entitlement guidelines for both injuries and occupational diseases are covered in this section.

Section 2. - HealthCare

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

The Board covers the cost of most health care services to help in the worker's recovery from the workplace injury. Health care includes physicians' treatment, prescription medicine, orthotic/prosthetic devices, physical rehabilitaion, hospitalization and some personal expenses incurred by the worker in obtaining treatment (e.g. travel).

Health care coverage is available to injured workers from, and including, the day of their accident.

The policies in this section of the manual detail some of the expenses and services covered, as well as the circumstances in which they are covered.

This section also includes policies relating to the Functional Restoration Program, a pro-active program designed to assist clients in preventing and managing Chronic Pain. This program is offered in conjunction with case management activities to clients identified as potentially benefiting from its services.

Section 3. - Short-Term and Long-Term Benefits

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

Generally, workers of a registered firm are eligible for financial compensation if they:

1. are injured or become ill due to an accident "arising out of and in the course of employment" and

2. suffer a loss of earnings as a result of the injury.

Workers’ compensation benefits are based on an earnings replacement system, meaning that an injured worker is paid a percentage of lost earnings for their time off work due to a compensable injury. Depending on the severity of the worker’s injury, the WCB may offer short-term or long-term financial benefits payable to the worker, plus medical aid and vocational rehabilitation required to treat and rehabilitate the worker.

Earnings Profiles

The WCB uses normal weekly earnings to determine an initial earnings profile, which is used for the first 26 weeks of workers’ compensation benefits. In cases where a worker is injured longer than 26 weeks, the WCB collects more detailed earnings information to set a long-term earnings profile. Depending on the category of the worker’s employment (ie. seasonal, long-term/permanent, etc.), the WCB can utilize up to three years of earnings to determine a long-term earnings profile.

Maximum Insurable/Assessable Earnings

The Workers’ Compensation Board has a maximum insurable/assessable earnings based on a percentage of the average industrial wage for the Province of Nova Scotia. The maximum insurable/assessable earnings for 2003 is $41,800.

In order to be eligible for temporary earnings-replacement benefits, an injured worker must undergo a waiting period or deductible. As a result, 2/5ths of the injured worker’s net weekly compensation rate will be deducted from their first compensation cheque. If an injury results in a loss of earnings for more than five calendar weeks, the deducted amount will be reimbursed.

Short-term Benefits (TERB)

If an employee suffers a compensable injury at work, and experiences an earnings loss for more than a period equivalent to 2/5ths of their net weekly compensable benefit, the employee is entitled to temporary benefits. Temporary Earnings Replacement Benefits (TERB) are based on 75% of the worker’s net earnings prior to the loss of earnings due to the accident (up to the maximum insurable earnings). After 26 weeks, the Temporary Earnings Replacement Benefit increases to 85% of the worker’s net earnings loss. These benefits are paid every two weeks for as long as a worker is medically unable to return to work.

Long-term Benefits (EERB, PIB)

The Workers’ Compensation Act (the “Act”) provides for a dual compensation system which recognizes that, an injured worker may suffer both a permanent injury and, therefore, a loss of physical ability, as well as a loss of earnings ability. If a worker suffers a permanent injury due to a work-re lated injury or occupational disease, the worker is entitled to a permanent medical impairment (PMI) assessment. This assessment is used to determine the injured worker’s Permanent Impairment Benefit, (PIB). The Permanent Impairment Benefit is a life-long award made to injured workers to compensate them for their physical loss due to accident. The PIB is usually paid as a lump sum, but may be paid periodically.

An Extended Earnings Replacement Benefit (or EERB) compensates a worker for a percentage of the long-term loss of earnings due to their injury. The WCB determines the difference between an injured worker’s pre-accident earnings and post-accident earnings (actual and estimated) to arrive at their compen sable earnings loss. This benefit is only payable to injured workers whose compensated loss of earnings is greater than the amount of their Permanent Impairment Benefit. The worker is then compensated for a percentage of this difference - generally 85%. This benefit is paid to workers until they are 65 years old, at which time it is replaced by an annuity. The level of an EERB is reviewed 36 months after it is established, and may also be reviewed at 60 months.

Apportionment of Benefits

Under the Act, benefits are payable only for the proportion of a worker’s permanent impairment or loss of earnings which can reasonably be attributed to a work-related injury. If some proportion of the worker’s permanent impairment or long-term loss of earnings has resulted from a cause other than the work-related injury or a disease or disability which existed prior to the work-related injury, the level of Permanent Impairment Benefits and Extended Earnings Replacement Benefits may be reduced.

Annuity

An amount equivalent to five percent (5%) of total Extended Earnings Replacement Benefits and Permanent Impairment Benefits are set aside to provide an annuity. The annuity is meant to compensate for the loss of retirement income, and is calculated from the date the worker started receiving long-term benefits until the worker reaches age 65. Once the worker reaches age 65, this Annuity may be paid either as a monthly benefit or as a lump sum, depending on the amount payable.

Supplementary Benefits

The Supplementary Benefits Program provides additional benefits to workers with permanent disabilities who were injured prior to March 23, 1990. To be eligible for supplementary benefits an injured worker must:

a) have had a work-related injury before March 23, 1990;

b) be under the age of 65;

c) be receiving, or eligible to receive, a CPP/QPP disability pension for the work-related injury;

d) have a total personal annual income below one-half the average industrial wage for Nova Scotia as prescribed by regulation; and

e) be receiving periodic compensation.

The amount of a Supplementary Benefit is the amount necessary to increase an applicant’s individual annual personal income to an amount equal to one-half of the average industrial wage for Nova Scotia.

Combining Worker's Compensation Benefits

Under the Workers Compensation Act, a ceiling is placed on the level of earnings an injured worker can receive while on compensation. This level is generally equal to 85 percent of the net maximum assessable earnings in place the year the injury occurred. If, due to previous claims that an individual may have with the Board, their total WCB benefits exceeds this ceiling, their most recent benefit award would be reduced by the excess amount.

Policies with respect to earnings replacement benefits (short- and long-term), permanent impairment benefits, apportionment of benefits and annuities, as well as former Act pensions and Supplementary Benefits, follow.

Section 4. - Vocational Rehabilitation

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

Vocational Rehabilitation services are designed to assist injured workers in returning to the workforce.

These services are offered to injured workers who experience difficulty following an accident and have suffered, or are likely to suffer, a permanent impairment as a result of their workplace accident.

Rehabilitation Services may consist of appropriate assessments, skills upgrading, on-the-job training, job search preparation, and a variety of other services. The goal of any vocational rehabilitation plan is always to return the worker to work that is suitable and reasonably available.

The worker will be assisted by a Vocational Rehabilitation Counsellor, as part of a Case Management Team, in developing a suitable return-to-work plan.

When a rehabilitation program has been developed and implemented with an injured worker, and as long as they actively participate in the program, they are generally eligible for earnings-replacement benefits.

The policies which surround this process are contained in this section of the manual.

Section 5. - Re-Employment

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

The new Workers Compensation Act contains provisions requiring certain employers to re-employ injured workers when they are ready to return to the workplace. Re-employment is intended to return the worker to a place in the labour market resembling, as closely as possible, the position held at the time of their injury. The purpose of these new provisions is to eliminate some of the barriers to a safe and successful return to work.

Employers who have 20 or more workers, except for those in the construction industry, are required to re-employ workers who suffer a work-related injury.

To qualify for these re-employment rights, a worker must be employed for 12 continuous months and have lost time as a result of a workplace accident. The re-employment provisions apply where the initial time loss related to the accident is on or after February 1, 1996. Re-employment also applies to workers who are seasonally employed or who are contract or temporary workers if a pattern of continued and repeated employment with the pre-injury employer can be established.

Offers of re-employment are linked to the worker's ability to return to work. Workers who are able to return to work to perform either the essential duties of their pre-injury work or other suitable work, are eligible for re-employment. Once the Board decides, based upon all available medical evidence, that the worker can return to work, there are two main paths that re-employment can follow. The first is when the worker is able to perform the essential duties of their pre-injury work, and the second is when the worker is able to work but cannot perform the essentials of their pre-injury work.

If a worker can perform the essential duties of their pre-injury work, the employer is obligated, if able to do so, to offer to reinstate the worker in the pre-injury employment. If the employer is unable to reinstate a worker in pre-injury employment, the employer must offer alternative work equivalent to pre-injury employment. If alternative work is unavailable, then the employer must offer to re-employ the worker in suitable work.

If a worker cannot perform the essential duties of their pre-injury work, but can safely do other work, then the employer is obligated to offer the worker the first opportunity to accept any suitable work that becomes available. As the worker's condition improves, the employer is required to offer work more compatible to the worker's ability. This means the employer must offer work within the organization as it becomes available. The worker has the right to priority placement in any work which the employer fills or intends to fill once the employer has received notice that the worker is able to return to work.

Any employer who terminates the re-employed injured worker's employment within six months of the return to work is presumed to have breached the re-employment obligation. The WCB will require the employer to demonstrate that the termination was for reasons unrelated to the injury.

The Board recognizes that the re-employment provisions of the Workers Compensation Act will require some employers to amend current workplace employment practises to comply with the legislation. The Board can offer mediation services to a worker and employer in situations where they are unable to resolve an issue related to re-employment. The Board may also impose penalties for breach of re-employment obligations.

More details concerning the rights and responsibilities of all parties can be found in within the re-employment policies which follow.

Section 6. - Survivor Benefits

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

Fortunately, few workplace accidents in Nova Scotia result in death. But if a worker should die due to a workplace accident, the WCB can provide the surviving spouse and dependents financial support.

The benefits may include:

• reimbursement for burial expenses and transportation of the body (Policy 6.1.2 & 6.1.3)
• a lump sum 'death benefit' to the dependent spouse (6.1.1 & 6.1.4)
• a monthly benefit to the dependent spouse (6.2.1R
• a monthly benefit to the surviving dependent child(ren) (6.2.3)
• discretionary benefits to 'other dependents' if there is no surviving spouse or children (6.2.4)
• an annuity to the spouse after the monthly benefit ceases (6.2.8R)

The policies regarding this benefit package are contained in this section.

Section 7. - Specialized Adjudication

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

Transitional Benefits (subsections 7.1 and 7.2)

With the coming into effect of the new Workers' Compensation Act on February 1, 1996, the rules for short- and long-term compensation changed, moving the Board and its clients to a system based on earnings replacement as well as physical impairment. Since the new rules applied to all injuries on or after March 23, 1990, some claims already paid benefits in accordance with the former Act had to be recalculated and the benefits adjusted in accordance with the new Act. This process was essentially completed in 1996. The rules with respect to which claims were recalculated and how the benefits were adjusted are contained in the Transitional Benefit Policies.

Amended Interim Earnings Loss (subsection 7.3)

The Board adopted the Amended Earnings Loss Policies on November 24, 1993. The policies were intended to ensure that an interim earnings loss benefit would be provided to those workers most in need (ie., those with a permanent physical impairment and a loss of earnings related to their injury.)

Benefits paid were generally one-half of the earnings loss reported by the worker and continued (in most cases) until the adoption of final earnings loss policies. These "final" policies were adopted pursuant to the new Act and are contained in this manual. Recalculation of these interim benefits were carried out as part of the transitional benefit recalculations referred to above. Effective April 28, 1999, Bill 90 reinstated AIEL benefits to workers with injury dates prior to March 23, 1990.

Recalculation under s. 228 (subsection 7.4)

On August 11, 1998 the Court of Appeal released a decision (the Richard decision) that ruled the current Workers' Compensation Act and policies apply to requests for permanent benefits for workers' injured during the 'window period' of March 23, 1990 and January 31, 1996. In other words, the calculation for permanent benefits during the window period is to be based on the formula in the current Act (i.e. 85% of net).

Compensation for Chronic Pain for Injuries March 23, 1990-Jan.31, 1996 (subsection 7.5)

Effective April 28, 1999, sections 10A and 10E of Bill 90 came into force. Section 10A states that no compensation is payable for chronic pain, other than that specified under the Functional Restoration Program Regulations (for post-February 1, 1996 injuries) and Section 10A of Bill 90 (for injuries after March 23, 1990 and February 1, 1996).

Section 10E provide certain workers in the appeal system, or on temporary benefits, as of November 25, 1998, with Permanent Impairment Benefits and Extended Earnings Replacement Benefits, where appropriate.

Policy Manual Table of Contents

Section 8. - Internal Appeals

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

General

Both workers and employers can appeal decisions concerning the payment of compensation, including decisions with respect to the acceptance of claims, the payment of earnings loss compensation or health care benefits, the provision of vocational rehabilitation services or the payment of permanent impairment benefits. Employers can also appeal decisions concerning their WCB assessment.

Internal Appeal

A worker or an employer may, within 30 days of being notified of the final decision on a claim, appeal that decision to a Hearing Officer. Hearing Officers have the authority to make enquiries, receive evidence and render a final written decision concerning the issues on appeal. A Hearing Officer will either conduct a paper review of the file or hold an oral hearing. The Hearing Officer's decision is the final decision of the Board. The Hearing Officer is legally required to issue decisions within 60 days of the oral hearing or paper review, although the accepted corporate standard is 30 days.

It is important to note that it is not always necessary to file an appeal to have a decision reviewed by a WCB staff member. If new information about a claim or assessment becomes available after a decision has been made, it should be sent directly to the staff member who made the original decision. The staff member can then review his or her decision, based on the new information provided, without the file having to go through the formal internal appeals process. However, where the decision for which a review is being requested is a final decision of the Board, the new information must be truly new evidence (eg. not a reiteration of evidence already on file or a ne argument based on the same evidence) and evidence which could not have been presented by the worker or the employer at the time the final decision was made.

'External' Appeal

After receiving a Hearing Officer's decision, a worker or an employer may file an appeal with the Workers' Compensation Appeals Tribunal (WCAT) within 30 days of being notified of the Hearing Officer's decision. The WCAT is an independent agency that is administratively separate from the Workers' Compensation Board (WCB). Accordingly, the WCB's Board of Directors does not have jurisdiction to pass policies concerning the process used to conduct 'external' appeals, and no such policies are included in this manual.

Policy Manual Table of Contents

Section 9. - Assessments and Collections

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

Scope of Coverage

The Workers' Compensation Act requires firms which employ three or more workers, and which operate in industries designated by regulation as subject to mandatory registration, to register for coverage. The term 'workers' includes full-time, part-time, and casual workers as well as sub-contractors. Those businesses that are not subject to mandatory registration under the Act -- e.g. financial institutions, professional services and farms -- may apply to obtain workers' compensation coverage on a voluntary basis.

Special protection coverage is an optional insurance plan for self-employed proprietors, partners, and family members of an employer living in the employer's household. The applicant chooses the desired level of coverage, ranging from a minimum to a maximum, and benefits are based on the lesser of the actual wages or the amount of coverage purchased.

Registration

If a firm is required to register mandatorily under the scope of the Act, it must do so within 10 business days of becoming an employer. If an employer fails to register with the WCB they may be subject to penalties.

Classification and Rate Setting

The funds needed to cover WCB benefits and services are collected from registered employers in the form of assessments. To calculate rates, employers are first grouped by the type of business they operate, and are given a Standard Industrial Classification (SIC) code. Industry groups with similar WCB claim-cost patterns are then put into the same rate groups. Each rate group is assigned an assessment rate based on the cost experience for the rate group.

Experience Rating

Under experience rating, an individual employer's claim-cost experience is compared to the average experience for their rate group as a whole. Any adjustment to the employer's rate will be based in part on this comparison. Employers with a better than average accident experience will pay lower assessment rates than those with a higher than average accident experience.

One of the strengths of this program is that it extends the role of insurance-based principles in the setting of premium rates, thereby making the system far more equitable. Employers have the power to positively affect their assessment rates through increased attention to workplace safety and return-to-work programs.

Prevention

In 2005, the WCB implemented a Safety Incentive Program aimed at motivating employers to implement effective health and safety systems and processes in their workplaces. The Safety Incentive Program is comprised of three components. These include:

1. Applying a surcharge to companies that are consistently worse than their rate group (i.e. have a claims cost to payroll ratio at least 200% greater than their rate group for four consecutive years). The goal is to encourage more businesses to improve and implement health and safety best practices.

2. Doubling the impact of serious injuries and fatalities when calculating an employer's Experience Rating.

3. Applying weighting factors to Rate Setting and Experience Rating costs to ensure that recent trends are better reflected in assessment rates. This way, employers who have taken recent steps to improve their safety performance will see a reduction in their Experience Rating sooner. Similarly, employers whose safety performance gets worse will see their rates increase quicker.

The details surrounding the rate-setting process (including experience rating), the Prevention Incentives Program as well as employer classification and penalties can be found in this section.

Section 10. - General Policies

Overview

Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.

The policies in this section deal with a number of topics not covered by previous sections of the manual. These include reporting of accidents, access to information in claim files, fraud and misrepresentation, and retroactivity of policy changes.