WORKERS' INFORMATION KIT:  Non-Economic Loss (NEL) Awards

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

A NEL award is paid to recognize the permanent effects of your injury on your life outside of work. The Workplace Safety and Insurance Board (WSIB) calls this your "permanent impairment". You will be considered for a NEL award if you were injured after January 1, 1990 and have recovered as much as possible ("maximum medical recovery" (MMR)), but still have some permanent medical problem.

You are entitled to a NEL award if your impairment is permanent and you have reached maximum medical recovery (MMR), even if you never missed any work as a result of your injury. Additionally, if your impairment impacts your ability to work, you may also be entitled to a Loss of Earnings (LOE) benefit if you were injured on or after January 1, 1998, or a Future Economic Loss (FEL) award if you were injured between January 1, 1990 and December 31, 1997.

The amount of your NEL award will depend on how serious your injury is and how old you were at the time you were injured. Your NEL award is not based on your wage loss. WSIB will arrange a medical examination ("assessment") to determine the level of your impairment. The level of your impairment will be fixed as a percentage. WSIB multiplies the percentage by an amount that varies according to your age. The result of this calculation is the amount of your award.

Part 1: The NEL Process

Appendix 1 attached to this kit contains a chart of the NEL process. It may be helpful to refer to it as you read the following sections.

NEL Entitlement

You will be considered for a NEL award when WSIB decides that your medical condition is permanent and unlikely to improve significantly. WSIB calls this point "maximum medical recovery" (MMR). Based on the medical information in your file, your Adjudicator will decide if you have a permanent impairment and whether you have reached MMR.

You may have reached MMR even if you are still taking medication or going to physiotherapy. If the treatment is only to keep your condition from getting worse and your doctors do not expect you to get any better, then you are at the point of MMR.

If you think WSIB is taking too long to decide you are at MMR and give you a NEL award, see Part 2 of this kit called NEL Problems.

If WSIB says you have reached MMR but you do not agree, seek the advice of a qualified representative.

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Choosing a Doctor

The next step is to choose a doctor to do the medical examination or assessment. WSIB will send you a list of doctors. These doctors are not WSIB employees. They should practice in your area and have experience treating your type of injury. You cannot choose a doctor who is not on the list. The doctor must be trained to do NEL assessments.

If you have an unusual injury then you may not have a choice of doctors. There might be only one specialist in the field who has been trained to do NEL assessments. If no one in your area can assess your type of injury, WSIB will pay for you to travel to the examination.

Under the law, you have 30 days from the time you receive the list to pick a doctor and tell WSIB. Under WSIB policy, if you wait any longer than 35 days then WSIB will select a doctor for you. For some tips on making your choice, see Part 2 of this kit called NEL Problems.

WSIB will arrange an appointment for you to see the doctor. Do not call for an appointment yourself. WSIB must send assessment forms and medical reports from your file to the doctor. If you make your own appointment, the doctor might not have the necessary forms when you arrive. WSIB will send you a letter telling you the time and place of your NEL assessment.

The Medical Assessment

Before going to the examination you should look at any medical reports you have. If you think they are helpful in showing the full extent of your medical problems, take them with you to the appointment and ask the NEL doctor to look at them. WSIB should also send some reports from your WSIB file to the doctor before your appointment, but you have no control over which ones are sent. Ask the doctor whether WSIB sent any reports and whether (s)he had the chance to read them.

Also, before the examination you should take a few moments to think about how your medical condition affects not only your work, but your other activities as well. Can you still take care of yourself and your home? Can you still ride a bicycle and go dancing? Have you changed the way you do things? For example, you only wear slip on shoes now because it is too painful to tie shoelaces. Try to explain the full effect of your injury to the NEL doctor.

The doctor will examine you and assess your impairment using WSIB assessment forms. The doctor will then send the forms back to WSIB.

WSIB will forward a copy of the report to both you and your employer. It is a good idea to bring the report to your own family doctor or a specialist to see if your own doctor agrees with the report. The doctor who performed the assessment may have overlooked something that can be brought to the attention of WSIB.

WSIB should use all relevant health information in your claim file including the assessment report to rate your permanent impairment. Only WSIB can ask for a second assessment if the first report is incomplete or inaccurate.

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Second Assessments

If WSIB requests a second assessment then you will be sent another list of doctors. You and your employer must agree on a doctor who will perform the second assessment. If you cannot agree within 35 days then WSIB will select the doctor for you. The second report will be sent to you, WSIB and your employer. WSIB will use the second medical assessment including any health information in your claim file and any appropriate part of the first report to rate your permanent impairment.

Amount of the NEL Award

WSIB uses the information in the medical report to decide the percentage of impairment that will be used to calculate the amount of your NEL award.

The percentage is usually based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (the "AMA Guides"). The AMA Guides contain charts and formulas for deciding the percentage of impairment based on the measurements and observations of the NEL doctor.

If you have a pre-existing impairment to the same part of the body, whether you have a WSIB claim for it or not, your NEL award will be adjusted accordingly. Here is how WSIB will do the adjustment:

If you have a pre-existing impairment where you were previously rated by WSIB for a pension (pre-1990 accidents) or NEL award:

• then WSIB will rate the total impairment to the area, and
• subtract the old pension or NEL award from this total

If you have a pre-existing impairment where you were not granted a pension award or NEL benefit, then the way WSIB addresses your pre-existing impairment will depend on whether it is considered "measurable" or "non-measurable":

• If your pre-existing impairment is considered "measurable"; WSIB will rate the total impairment to the area of the body, then determine how much the pre-existing impairment contributed to the total and the difference between those two figures would be the NEL award.
  
  
• If your pre-existing impairment is considered "non-measurable", WSIB will decide if it is minor, moderate or major.
  
  
• If it is considered to be minor, your NEL award will not be adjusted.
  
  
• If it is considered to be moderate, your NEL award will be decreased by 25%.
  
  
• If it is considered to be major, WSIB will adjust your NEL award by 50%.

After WSIB has decided the percentage of your impairment, it will calculate the dollar amount of your NEL award. The dollar amount depends on three things:

• the "base amount" in effect for the year in which maximum medical recovery was reached;
• an "adjustment factor" based on your age when you were injured; and
• your percentage of permanent impairment.

WSIB sets your "base amount" using a calculation set out in the Workplace Safety and Insurance Act, 1997 (WSIA). The dollar amounts are adjusted each year to partially account for inflation. The base amount that will apply to your case will be the one in effect for the year that you reached maximum medical recovery.

WSIB takes the base amount and then adds one adjustment factor for every year under 45 years of age or subtracts one adjustment factor for every year over 45 years of age.

For example, in 2007 the base amount was $52,469.57 and the adjustment factor was $1,166.41. If you were injured at age 35 and reached maximum medical recovery in 2007, then your personal base amount would be $64, 133.67 which is the combination of the 2005 base amount ($52, 469.57) and the adjustment factor based on your age ($1,166.41 x 10). If your percentage of impairment was 10%, your NEL award would be $6,413.37, or 10% of your personal base amount.

There are minimums and maximums for personal base amounts. These are reached at 25 and 65 years of age and may change every year because of inflation. See Appendix 2 for a list of the base amounts, adjustment factors, and minimums and maximums for each year since 1990. Appendix 2 also shows you how to check the calculation of your NEL award.

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Payment of the NEL Award

If your NEL award is less than the amount in the following chart then it will be paid as a lump sum. Remember to look at the amount for the year in which you reached maximum medical recovery (MMR), not the year you were injured nor the year you got your NEL award.

If your award is for more than the amount in the chart then it will be paid to you as a monthly payment unless you choose a lump sum. The amount of the monthly payment is calculated based on how long a person of your age and sex is likely to live.

If you want to receive your NEL award as a lump sum, the law says you must let WSIB know within 30 days of being notified of the amount of the award. Although WSIB policy allows 35 days for you to make this choice, it is recommended that you do so within 30 days. 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 payment so you may change your mind at a later date.

WSIB will pay interest on the award from your MMR date until your NEL is processed.

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Future Increases in Your NEL Award

If your medical condition gets worse over time, you can apply for an increase in your NEL award. The assessment forms used by the NEL doctor will ask whether your condition is likely to deteriorate in the future. It also asks the doctor to predict how bad the deterioration will be. You must wait one year after your most recent NEL medical assessment to apply for an increase.

For information on how to request an increase, see Part 2 of this kit called NEL Problems.

Part 2: NEL Problems

The rest of this kit tells you how to deal with some common problems in the NEL process. In some cases, this will involve obtaining a medical report from your family doctor or specialist.

What If WSIB is Delaying My NEL Assessment?

If you think it is time for WSIB to assess you for a non-economic loss award, take the "Note to Doctor" found in Appendix 3 to your family doctor or specialist. If your doctor agrees that you have reached MMR, ask him / her to send a report to your Adjudicator. It is also a good idea to send a letter requesting that you be considered for a NEL award. Use the sample letter found in Appendix 4 as a guide.

You should be aware; however, that should you be assessed at 0%, your entitlement to any LOE or FEL benefits which you may be receiving will immediately end.

How Do I Choose a Doctor From the List?

This is a difficult problem because WSIB will not usually allow you to be assessed by a doctor who has treated you or a member of your family in the past. However, you should resist the temptation to just pick the doctor with the office closest to your home. Doctors have reputations and credentials. You can find out more about them in several ways:

• Ask your doctor or specialist for advice. They may be familiar with some of the names on the list and able to recommend a doctor they know has experience in treating your type of injury.
  
  
• Consult the Canadian Medical Directory. Your doctor or public library may have a copy. The directory will tell you the specialty of each doctor on the list. It will also tell you how much experience they have, whether they teach at a medical school, and other information that might help you make a good choice.
  
  
• Ask an experienced workplace insurance representative. This could be someone at your union or community legal clinic.

Once you have collected all the information you can, then you just have to choose. Remember that under the law you only have 30 days from the date you receive the list to make your selection. Again, although WSIB policy allows 35 days for you to make this choice, we recommend that you try to stay within the 30 day limit.

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What If the Amount of My NEL Award is Too Low?

In general, there are two types of mistakes that can be made which would affect your NEL award.

1) An Error in the Calculation of Your NEL Award

If your injury is in the AMA Guides then by law, WSIB must use the percentage in the AMA Guides. You can ask a qualified representative to check if WSIB used the Guides correctly in your case.

If your injury is not in the AMA Guides, then WSIB uses other rating systems. In all such cases, you should consult with an experienced representative before taking any action.

If you have an emotional, psychological or chronic pain problem, WSIB uses a special rating system. See Appendix 6 for more information on dealing with low awards for psychological disorders, severe head injuries, chronic pain disability, fibromyalgia, fibrositis or similar conditions.

You should receive a letter from WSIB telling you the amount of your award. Read it carefully. Are the facts used by WSIB correct? You should perform your own calculation using the charts found in Appendix 2. Check to see if your figures agree with WSIB's. If they do not, you can object. Write to your Adjudicator, point out the mistake, and ask for a recalculation.

2) An Error in Your Assessment Report

If you think there is a serious problem with the assessment report or are not sure, ask your doctor or specialist to look at the report. Take along a copy of the "Note to Doctor" found in Appendix 5. If there are no errors in the assessment report then you may have no way to challenge the amount of your NEL award.

If the assessment contains serious errors or conflicts with other medical reports, you can ask your doctor for a report. Send this report to your Adjudicator along with an objection letter. Use the sample letter found in Appendix 7 as a guide.

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What Are the Situations Where I Can Appeal My NEL Award?

If your Adjudicator has not addressed the errors in your NEL award calculation or the errors in your assessment report to your satisfaction, then you can appeal your award. There are strict time limits for appealing WSIB decisions. If you don't ask for an appeal of your NEL award within six months of receiving it, you will very likely lose your right to appeal. If this does not resolve your dispute, you have six months to appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). For more information, see the OWA Workers' Information Kit: Appealing WSIB Decisions.

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 NEL benefits and also, that you will not be entitled to any more LOE or FEL benefits, either.

Should I Request a Lump Sum or Monthly Payments?

As explained earlier, if your NEL award is large enough, it will be paid as a monthly payment for the rest of your life unless you ask to have it paid out as a lump sum. Under the law, you have only 30 days from the date of being notified of the amount of the award to ask for a lump sum. Although WSIB policy allows 35 days to make this choice, we recommend that you follow the 30 day limit. Your choice of a lump sum or monthly payment is permanent and cannot be changed at a later date. When deciding if you wish to have your NEL award paid out as a lump sum or a monthly benefit, you should keep in mind that monthly payments are a reliable tax-free source of income. If you choose a lump sum, this will also be tax-free, but any income you make from investments is not tax-free. Seek financial advice before making this decision.

What If My Condition Deteriorates?

You can ask to have your NEL award reassessed if at least one year has passed since the original award, and the original award was rated more than zero. Take a copy of the original medical assessment to your doctor or specialist. Take along a copy of the "Note to Doctor" found in Appendix 5. If your condition has deteriorated since the assessment, you can ask your doctor for a report. Send this report to your Adjudicator along with a letter requesting a reassessment. Use the sample letter found in Appendix 8 as a guide. WSIB will re-determine your NEL award in much the same way it determined your original award.

Appendices

OWA Workers' Kit 3 - June 2007