NON-ECONOMIC LOSS AWARDS

What Is a Non-economic Loss (NEL) Award?

A NEL award is meant to recognize the permanent effects of workplace injury on a worker's life outside of work. You may receive a NEL award if you were injured after January 1, 1990 and you have recovered as much as possible from your injury ("maximum medical recovery" or MMR), but still have some impairment. The Workplace Safety and Insurance Board (WSIB) calls this your "permanent impairment." Permanent impairment may result from mental, as well as from physical injuries.

What is a NEL Determination?

WSIB will attempt to determine the degree of your permanent impairment by considering all relevant medical information in your claim file. This will be done by a NEL Clinical Specialist. You should be informed that this process is occurring. If there is not enough of the right kind of medical information in your claim file, WSIB may request additional information from you or your doctors. If this information is still not enough, you will be referred for a NEL medical assessment.

How Much Is a NEL Award?

The amount of your NEL award will depend on the seriousness of your injury ("degree of impairment") and your age at the time of your accident. WSIB sets the degree of your impairment as a percentage and then multiplies this percentage by an amount that changes according to your age. The result is the amount of your award. The rest of this fact sheet will explain what this means in greater detail.

What is a NEL Medical Assessment?

A NEL assessment is a physical examination by a doctor. Your assessment will be arranged either by a NEL clerk at WSIB or your file may be referred to a Regional Evaluation Centre (REC) in your area. If you are referred to a REC, they will ask you to select a doctor to examine you from a list of physicians. The REC will book an appointment with the doctor you have chosen.

If you are not referred to a REC, a NEL Clerk at WSIB will arrange for your assessment. WSIB will ask you to select a doctor to examine you, from a list that it keeps. These doctors are not WSIB employees. They should be in your local area and experienced in treating your type of injury. If you do not select a doctor within 30 days, WSIB will choose one for you.

In either case, the doctor will examine you, review your WSIB medical file and write a report. The report will be sent to WSIB. WSIB will then send a copy of the report to you and your employer. It is a good idea to bring the report to your doctor or a specialist to see if your doctor agrees with the report. The doctor who did the assessment may have overlooked something that can be brought to the attention of WSIB. WSIB should use all relevant medical information in your claim file, including the assessment report (if an assessment was done), to rate your permanent impairment.

What Will Happen if WSIB Requests a Second Assessment?

WSIB will send you another list of doctors. You must choose a doctor from the list to do the second examination within 30 days. If you do not select a doctor within this time, WSIB will choose the doctor for you. The second report will be sent to you and your employer. WSIB will use the second report, any medical information in your claim file, and any appropriate part of the first report, to rate your permanent impairment.

Only WSIB can ask for a second assessment if it disagrees with the first report. However, workers who were referred for a NEL determination/re-determination before January 1, 1998 can request a second assessment. You should speak to a qualified representative if you want to request a second assessment, but are not sure if you are covered by this pre-1998 rule.

How Is Your NEL Award Calculated?

• The amount depends on your age, the date of your injury and the seriousness of your injury according to the doctor's report.
  
  
• First, WSIB will use the medical information in your claim file and the doctor's report (if an assessment was done) to decide what percentage of permanent impairment is caused by your injury. The percentage is based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). This percentage is then multiplied by your NEL "base amount" to determine the amount of your award.
  
  
• WSIB sets your base amount using a calculation set out in the Workplace Safety and Insurance Act. The dollar amounts are adjusted each year to partially account for inflation. In calculating your NEL, WSIB uses the base amount for the year you reached MMR. In 2009, your base amount was determined by taking $56,502.64 and adding $1,256.07 for every year you were under the age of 45 at the time of the injury, or subtracting $1,256.07 for every year you were over 45. The most that can be added or subtracted is $25,121.40. Your base amount is then multiplied by the percentage of impairment to arrive at the amount of the award.
  
  
• For example, if you were 40 when you were injured and reached MMR in 2009, your base amount would be $62,782.99 ($56,502.64 + (5 x $1,256.07)). If WSIB decided that your impairment is 20%, your NEL award would be $12,556.59 ($62,782.99 x 20%).
  
  
• If your NEL award is $12,555.89 or less, you will receive it as a one-time lump sum. If your NEL award is greater than that amount, you will receive it in the form of a monthly payment for the rest of your life, unless you choose to receive it as a lump sum. If you want to receive your NEL award as a lump sum, you must tell WSIB within 30 days of being notified of the amount of the award. If you were referred for a NEL determination after January 1, 1998, your choice of a lump sum or monthly payment is permanent and cannot be changed at a later date. If you were referred for a NEL determination before January 1, 1998, there is no time limit to elect a lump sum so you may change your mind at a later date.

Special rules apply if you already had another impairment before the one now being assessed by WSIB.

What Is the Effect of a 0% Permanent Impairment Rating?

If WSIB finds that your degree of impairment is zero, you will be treated as if you have no permanent impairment. This means that you will not be entitled to a NEL benefit. It also means that you will not be entitled to any more loss of earnings (LOE) benefits. It also means that if your condition becomes worse, in most cases you cannot apply for a new NEL determination. However, if your condition becomes worse more than 72 months from the date of your injury you may be entitled to a NEL determination even though your NEL rating was zero.

What If You Do Not Agree With the Amount Of Your NEL Award?

If you disagree with your NEL award, you can ask the decision-maker to reconsider the award. You must ask for your reconsideration within 6 months of receiving your award. You can appeal this decision to an Appeals Resolution Officer within WSIB. If this does not resolve your dispute, you have 6 months to appeal your NEL award to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

What Can You Do If Your Condition Becomes Worse?

You cannot object to the NEL determination for one year. You may request a new determination after one year, as long as your original impairment was rated more than zero and your doctor confirms that your condition permanently became worse ("a significant deterioration"). You should ask your doctor, or specialist to compare the physical findings with those on the last NEL determination and explain in writing to WSIB how your condition has become worse since the last NEL determination. If WSIB agrees that your condition has gotten worse, it will redetermine your NEL award in a way similar to how it determined your original award. Because different rules apply to workers who requested a redetermination before January 1, 1998, you should speak to a qualified representative for advice.

OWA Fact Sheet 13 - August 2009