Non-Economic Loss Awards
Information adopted from the Ontario Worker Adviser (OWA) website. Used with permission.
What is a Non-Economic Loss (NEL) Award?
A Non-Economic Loss award recognizes the permanent effects of workplace injury on a worker’s life outside of work. It is based on your degree of permanent impairment. As of March 30, 2011, the WSIB pays all new NEL awards as a lump sum. Larger NEL awards can be paid monthly if you choose that option within 30 days.
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 (MMR)), but still have some impairment. The Workplace Safety and Insurance Board (WSIB) calls this your permanent impairment. A permanent impairment may result from mental, as well as from physical injuries.
What is a NEL Determination?
WSIB will try to decide the degree of your permanent impairment by looking at all the 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.
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 they will send you. 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. 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. This includes the assessment report (if an assessment was done) to rate your permanent impairment.
What Will Happen if WSIB Requests a Second Assessment?
WSIB can ask for a second assessment if it disagrees with the first report. 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. 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.
How Much is a NEL Award?
The NEL award amount depends on your age and the seriousness of your injury according to the doctor’s report.
First, WSIB uses medical information in your claim file and the doctor’s report (if an assessment was done) to decide what percentage of permanent impairment your injury caused. The percentage is based on the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, 3rd edition (revised). 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 2012, your base amount was determined by taking $57,354.43 and adding $1,275.00 for every year you were under the age of 45 at the time of the injury, or subtracting $1,275.00 for every year you were over 45.
- The most that can be added or subtracted is $25,490.34.
- 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 2012, your base amount would be $63,729.43 ($57,354.43 + (5 x $1,275.00)). If WSIB decided that your impairment is 20%, your NEL award would be $12,745.89 ($63,729.43 x 20%).
As of March 30, 2011, NEL awards are generally paid as a lump sum.
If your NEL award is greater than $12,745.17 (in 2012), you can choose to receive it as a monthly payment for the rest of your life instead of a lump sum. To receive your NEL award monthly, you must tell WSIB within 30 days of being notified of the award amount. Your choice of lump sum or monthly payment is permanent and cannot be changed. If you were entitled to a NEL award prior to March 30, 2011, the rules regarding lump sum and monthly payments for NEL awards were different. 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 I Do Not Agree With the Amount Of My 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). Since NEL re-determinations are based solely on the medical it is not the policy of the Local Union’s Workers’ Compensation Department to appeal them. You can, however, contact the department for phone support (1-800-267-1977).
What Can I Do If My Condition Becomes Worse?
You may request a new determination but you must wait one year from the date of the initial NEL determination. Your original impairment must have been rated more than zero and your doctor must confirm that your condition has become permanently worse (“a significant deterioration”).
Ask your doctor to compare the physical findings with those on the last NEL determination. Your doctor should 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 re-determine your NEL award in a way similar to how it determined your original award.