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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.



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  Decision 946 13
M. Crystal

  • Earnings basis (maximum)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

The worker appealed a decision of the Appeals Resolution Officer regarding the offset of LOE benefits by the amount of CPP disability benefits.
The worker had a high income, well above the statutory maximum. Section 54(1) of the WSIA provides that, if a worker's average earnings exceed 175% of the average industrial wage, the worker's average earnings are deemed to be 175% of the average industrial wage. In determining the amount of the worker's LOE benefits, the Board subtracted the amount of the CPP benefits from the statutory maximum.
At the ARO hearing, the worker submitted that the CPP benefits should have been subtracted from his actual earnings. This amount was still well above the statutory maximum and, accordingly, his benefits should be based on the statutory maximum. At the Tribunal hearing, the worker submitted the CPP benefits should not be deducted and that the worker should be entitled to LOE benefits at the statutory maximum and also to CPP benefits. In this manner, the amount of under-compensation to the worker would be reduced.
The Vice-Chair rejected the approaches of the worker. According to s. 54(1), when a worker's earnings exceed the statutory maximum, the worker's earnings are deemed to be at the statutory maximum. It follows that for any calculation required by the Act or Board policy involving pre-accident earnings, where actual earnings are greater than the statutory maximum, the actual earnings are not used and the statutory maximum is used. When applying Board policy, the reference to pre-injury net average earnings must be a reference to the statutory maximum when the actual earnings are greater than the maximum. Thus, the approach of the ARO, in deducting the CPP benefits from the statutory maximum, was consistent with the Act and Board policy.
The approach submitted by the worker to the Tribunal, of not deducting the CPP benefits, was contrary to s. 43(5), para. 2, which requires net average earnings a worker is able to earn after an injury to reflect CPP disability benefits.
The Vice-Chair also found that the merits and justice provisions did not warrant a departure from the application of the law and policy. The provisions were not ambiguous or unclear. The intent of s. 54 is to limit entitlement for persons with earnings that exceed the statutory maximum. This was an intended result.
The appeal was dismissed.