Compensation for future loss of earnings
43.(1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury. Duration of compensation (2) An injured worker ceases to be eligible for compensation for future loss of earnings when the worker reaches sixty-five years of age. Amount of compensation (3) Subject to subsection (8), the amount of compensation payable to a worker for future loss of earnings arising from an injury is equal to 90 per cent of the difference between, (a) the worker’s net average earnings before the injury; and (b) the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment. R.S.O. 1990, c. W.11, s. 43 (1-3). Application of subs. (3) (4) In applying subsection (3) the following rules apply if the amount determined under clause (3) (b) is not zero and does not consist solely of payments described in clause (7) (b): 1. The net average earnings in clause (3) (a) shall be adjusted by applying the indexing factor described in subsection 148 (1.3), for each January 1 since the day of the injury. 2. The amount of compensation calculated under subsection (3) shall be adjusted by, i. multiplying, for each January 1 since the day of the injury, by the sum of one plus the indexing factor described in subsection 148 (1) expressed as a fraction, and ii. dividing, for each January 1 since the day of the injury, by the sum of one plus the indexing factor described in subsection 148 (1.3) expressed as a fraction. Same (5) In applying subsection (3) the following rule applies if the amount determined under clause (3) (b) is zero or consists solely of payments described in clause (7) (b): 1. The net average earnings in clause (3) (a) shall be adjusted by applying the indexing factor described in subsection 148 (1.3), for each January 1 since the day of the injury. Same (6) Subsections (4) and (5) apply in both an initial determination and in a review of a determination under subsection (13). Indexing (6.1) The amount of compensation payable under this section shall be adjusted on January 1 each year, (a) if subsection (4) applied in the last calculation of compensation, by applying the indexing factor described in subsection 148 (1) for each January 1 since the compensation was last determined or reviewed; (b) if subsection (5) applied in the last calculation of compensation, by applying the indexing factor described in subsection 148 (1.3) for each January 1 since the compensation was last determined or reviewed. 1994, c. 24, s. 8 (1). Earnings from suitable and available employment (7) For the purposes of subsection (3), in determining the amount that a worker is likely to be able to earn in suitable and available employment, the Board shall have regard to, (a) the net average earnings, if any, of the worker at the time the Board determines compensation under this section; (b) any disability payments the worker may receive for the injury under the Canada Pension Plan or the Quebec Pension Plan; (c) the personal and vocational characteristics of the worker; (d) the prospects for successful medical and vocational rehabilitation of the worker; (e) what constitutes suitable and available employment for the worker; and (f) such other factors as may be prescribed in the regulations. Election re: older workers (8) A worker may elect to receive an amount equal to a full monthly pension for old age security under section 3 of the Old Age Security Act (Canada), including amendments thereto, instead of the amount of compensation determined under subsection (3) or (13) if the worker, (a) is at least fifty-five years of age when the Board determines or reviews the amount of the worker’s compensation; (b) has not returned to work; and (c) is unlikely, in the opinion of the Board, to benefit from a vocational rehabilitation program which could help the worker return to work. Supplement to compensation (9) If a worker who is receiving compensation under this section is co-operating in a Board-authorized vocational or medical rehabilitation program, (a) that began before the date of the Board’s review under clause (13)(a); or (b) that began within twelve months after a determination is made under subsection 42(21) of an unanticipated deterioration in the worker’s condition, the amount of compensation otherwise determined under this section shall be supplemented so that the total compensation payable to the worker while the worker is co-operating in the rehabilitation program is equal to 90 per cent of the worker’s pre-injury net average earnings. Determination of compensation (10) Where possible, the Board shall determine the amount of compensation payable to a worker under this section, (a) in the twelfth consecutive month during which the worker is temporarily disabled; (b) within one year after notice of the accident in which the worker was injured is given under section 22, if during that year the Board determines that the worker is permanently impaired; or (c) within eighteen months after notice of the accident in which the worker was injured is given under section 22, if the worker’s medical condition precludes a determination within the time stated in clause (a) or (b), whichever applies. R.S.O. 1990, c. W.11, s. 43 (7-10). Idem (11) Clauses (10)(b) and (c) do not apply with respect to a worker who is permanently impaired by occupational disease. R.S.O. 1990, c. W.11, s. 43 (11); 1994, c. 24, s. 8 (2). Idem (12) The Board may extend the time limits set out in subsection (10) in the case of a worker who is not receiving compensation under this Act and whose entitlement to compensation is in dispute. Review of amount of compensation (13) Where possible, the Board shall review its determination of the amount of compensation payable to a worker under this section, (a) in the twenty-fourth month after the date of its initial determination; (b) in the sixtieth month after the date of its initial determination; and (c) within twenty-four months after a reconsideration of the percentage of permanent impairment of a worker, under subsection 42(21), results in a determination of increased permanent impairment of the worker, but the Board shall not vary the amount of compensation payable as a result of a review unless the amount of the variation would be equal to at least 10 per cent of the amount of compensation being paid at the time of the review. Payment of compensation (14) Compensation for future loss of earnings is payable in monthly or other periodic payments except as provided in subsection (15). Commutation of amount payable (15) If, following the review under clause (13)(b) or (c), the amount of compensation determined to be payable to a worker under this section is 10 per cent or less of the amount of compensation payable for full loss of earnings, the Board may commute the periodic amount payable to the worker to a lump sum unless the worker elects to receive the compensation in periodic payments. R.S.O. 1990, c. W.11, s. 43 (12-15).