Document name

Benefits – Long-Term Earnings Loss

Document number

POL 01/2018

Average weekly wage is determined by the Workers’ Compensation Board (WCB) for a calendar year. The average weekly wage is Saskatchewan’s industrial composite wage published by Statistics Canada as of June of the preceding year (Section 2 of The Workers’ Compensation Act, 2013 (the “Act”)).

Earning capacity means the amount of income a worker could be expected to generate, post injury, through the performance of suitable productive employment, given their restrictions and unique vocational profile.

Long-term earnings loss benefits means a worker’s earnings loss benefits after the completion of a vocational rehabilitation program. These benefits are also known as long-term earnings replacement.

Suitable productive employment means work that:

• The worker can do given their employability assessment and transferable skills analysis.
• The worker can functionally perform, given the medical restrictions imposed by the work injury and any non-compensable medical restrictions existing at the time of the injury.
• Will not endanger the health and safety of the worker or others.
• Contributes meaningfully to the operation of the business.

Vocational rehabilitation program means a program that is intended to return workers to positions of independence in suitable productive employment. As part of this program, the WCB will, in consultation with the worker, develop an individualized vocational plan.

1. The Workers’ Compensation Act, 2013 (the “Act”) requires workers to take steps to mitigate their loss of earnings and authorizes the WCB to suspend or reduce earnings loss payments (Sections 51 and 101).
2. The Act directs that the (Section 69(1)):
   1. Calculation of the loss of earnings for the purposes of subsections 32(2) and 68(1) and sections 71 and 72 must be based on the difference between:
      1. The worker’s average weekly earnings at the commencement of the worker’s loss of earnings resulting from the injury, adjusted annually by the percentage increase in the Consumer Price Index; and
      2. The weekly earnings that the worker is receiving from employment.

3. The basis for the annual CPI adjustment is the average of percentage increases in the Regina and Saskatoon All-Items CPI for the 12 months ending on November 30 in each year. In any given year, if there is no change in the CPI, or if it decreases, it will not be adjusted for that year.
4. In any given year, the CPI adjustment may be higher than the percentage change in the maximum wage. For workers subject to the maximum wage rate, a higher CPI adjustment to their earnings capacity would result in reduced benefits. Therefore, for workers subject to the maximum wage rate, it is the Board’s intent that adjustments to earning capacity will not exceed adjustments to the maximum wage rate.
5. Following an injury, the goal is for the worker to return to work that eliminates a loss of earnings. In some instances, a worker’s return to suitable productive employment may lead to a career in commissioned sales or self-employment (PRO 11/2014, Vocational Rehabilitation – Self-Employment Plans).
6. When establishing an initial wage base, the WCB only considers earnings from employment in industries covered under the Act and earnings from excluded industries if optional coverage has been purchased for the excluded industry (POL 06/2016, Establishing Initial Wage Base). However, when determining a worker’s earning capacity for long-term earnings loss benefits, the WCB may consider all earnings from covered industries, excluded industries, non-employment income or other earnings potential such as self-employment or other business income.
7. The following policy outlines benefits a worker may be eligible to receive if they have permanent restrictions that prevent a return to pre-injury earnings.

1. A worker may be eligible for long-term earnings loss benefits if a vocational rehabilitation program is unable to return them to suitable productive employment that eliminates all earnings loss (POL 23/2016, Vocational Rehabilitation – Programs and Services).
2. A worker’s long-term earnings loss benefit is based on the difference between their:
   1. Average weekly earnings prior to their commencement of earnings loss adjusted to date by increases to the Consumer Price Index (CPI) (POL 06/2016, Establishing Initial Wage Base), and
   2. The greater of their actual earnings or earnings capacity from suitable productive employment.
3. If a worker’s injury prevents them from returning to any type of employment, they will receive full long-term earnings loss benefits based on their average weekly earnings prior to the commencement of their earnings loss. In these cases, the WCB has determined the worker has no earnings capacity.

Earnings Capacity

4. If a worker is engaged in suitable productive employment, their actual earnings will normally be the same as their earnings capacity. The WCB will make every reasonable effort to support the worker in obtaining suitable productive employment through a vocational program before using an earnings capacity to establish long-term earnings loss benefits.
5. The WCB may consider the worker’s earning capacity to be greater than their actual earnings if the worker:
   1. Does not accept an offer for suitable productive employment.
   2. Does not participate in a medical or vocational rehabilitation program.
   3. Does not acquire suitable productive employment after completing a vocational rehabilitation program.
   4. Has non-employment income or other earnings potential from employment not related to suitable productive employment identified through WCB’s vocational rehabilitation. This includes, but is not limited to, workers who are capable of, and are working in, an excluded industry where coverage has not been purchased (i.e., self-employed) or have other business income.
   5. Has non-medical re-employment barriers unrelated to the work injury (e.g., due to a criminal record, loss of driver’s license) which limit all suitable productive employment options.
   6. Accepts a job offer that pays lower than what they could receive from other suitable productive employment.
   7. Leaves suitable productive employment, but not because of the injury. This includes employment being interrupted because of a layoff or termination (POL 02/2018, Benefits – RTW Interrupted will apply).

Adjusting Earnings Capacity

6. The WCB will adjust a worker’s earning capacity when:
   1. The WCB determines the worker is able to acquire suitable productive employment that receives staged wage increases.
   2. The worker accepts an employment offer or demonstrates they are capable of employment that pays more (e.g., self-employment or business income) than the starting or staged wage increases (i.e., annual increases) from suitable productive employment.
   3. The WCB determines the worker is capable of earning minimum wage. Their earnings capacity will be adjusted following changes to the provincial minimum wage.
   4. Commissioned sales or self-employment is chosen as suitable productive employment and the worker is not able to earn consistent income.
   5. The worker’s medical condition related to the injury changes and the amount of long-term earnings loss benefits no longer accurately reflects their earning capacity.
7. If a worker’s earning capacity is not adjusted based on the above, their earning capacity will be adjusted annually to reflect percentage increases to the CPI (POL 07/2013, Consumer Price Index (CPI) – Annual Indexing).
   1. Adjustments will be effective on the anniversary of the worker’s commencement of loss.
   2. If a worker is subject to the maximum wage rate (POL 07/2020, Maximum Wage Rates), adjustments based on annual CPI increases will not exceed annual increases to the maximum wage rate.
8. The WCB may not reduce or eliminate future earnings loss benefits if:
   1. A worker’s earnings loss benefits are based on actual earnings, and
   2. The worker experiences a short-term increase in earnings that is not expected to result in a sustained change in their earning capacity.