Case Summary : Decision-Making Process

72 Month Loss Of Earnings (LOE) Review

A worker representative complained about the process used to determine the worker’s 72 month future economic loss (FEL) decision. The worker was recovering from surgery and 100% disabled at the 72-month date. The representative’s position was that he should be entitled to 100% loss of income (LOE) benefits until the worker reached maximum medical recovery (MMR) and his working capacity was reviewed again. Without notifying the worker or the representative, the claims adjudicator reviewed and changed the worker’s suitable employment or business (SEB) and deemed him capable of earning more than his pre-surgery SEB which dramatically reduced the final LOE benefit.

The representative reported that she raised her concerns about the fairness of the decision to the Chief Operating Officer (COO) at the WSIB who assured her that he would look into her concerns.

As this was the second complaint of this nature received by the Commission, the COO was questioned about the plan to review the individual concerns and the possible systemic problem. The COO conducted an investigation into the complaints and discovered that some areas were not adhering to earlier communications about the 72 month review process and did not understand the WSIB’s obligations under the Act. The COO distributed a memorandum to all managers instructing them to review with their teams the correct protocol for conducting the final 72 month LOE review. The COO also implemented a process to obtain and monitor reports for the next two business quarters to ensure all final LOE decisions followed the correct protocol.

The decision in this worker’s case was reversed and he received his 100% LOE benefits pending a review of his future earnings capacity at MMR.

(November 2005)