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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 3349 17 R
9/27/2018
J. Noble

  • Reconsideration (error of law)
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

The worker suffered a neck injury in June 2007, for which the Board granted the worker partial LOE benefits. In Decision No. 1510/15, the Tribunal found that the worker was entitled to full LOE benefits from February 2010. In January 2016, the Board implemented the Tribunal decision, but offset the full LOE benefits by the amount of CPP disability benefits, as of May 2011, which was the date of notification of the CPP disability benefits. The worker appealed the offset of the LOE benefits by the amount of the CPP benefits. Decision No. 3349/17 found that the worker was entitled to full LOE benefits without offset of the CPP disability benefits.
The Board applied for reconsideration of Decision No. 3349/17, on the grounds that it contained errors of law regarding application of Board policy and regarding applicability of s. 44 of the WSIA.
The Board submitted: s. 43(5) para. 2, provides that net average earnings that the worker earns in a SEB must reflect any CPP disability benefits paid to the worker; Board Operational Policy Manual, Document No. 18-01-13, on calculation CPP offsets from LOE benefits, provides that the amount of net average earnings the worker is able to earn in a suitable occupation after the injury must reflect any CPP disability payments; the policy also provides that, if LOE benefits are granted as a result of a Tribunal decision, CPP benefits may be offset when LOE benefits are granted from the date of notification of entitlement to CPP benefits, as long as the notification occurred prior to the final LOE review; in this case, the worker was notified of the CPP benefits in May 2011, well before the final LOE review; prior to Decision No. 1510/15, which was released in December 2015, the worker was receiving partial LOE benefits; the Board appropriately offset LOE benefits by the amount of CPP disability benefits now that the worker was receiving full LOE benefits and his gross benefits now exceeded the amount the worker was determined to be able to earn after the injury.
The Board submitted that s. 44 of the WSIA did not apply to preclude the offset because the offset was a consequence of the worker being awarded full LOE benefits by the Tribunal, which is distinct from an offset under s. 43(5) beyond the 72-month mark.
The Vice-Chair agreed with the Board submissions regarding Document No. 18-01-13. Decision No. 3349/17 erred since it did not apply the applicable Board policy, which indicates that there should have been an offset.
The Vice-Chair noted an additional provision in the policy that, in cases when LOE benefits are granted as a result of a Tribunal decision, the retroactive portion of the CPP disability benefits is not offset. The Board decision offset the LOE benefits by the amount of the CPP disability benefits as of May 2011. This aspect of the Board decision may have been contrary to the Board policy. This is a matter to be considered on the merits of the appeal.
The Vice-Chair also agreed with the Board submissions regarding s. 44. The Board appropriately considered applicable Board policy and relevant statutory provisions in implementing Decision No. 1510/15. This was required in order to calculate the payments due to the worker as a result of the Tribunal decision. It was not a review of LOE benefits to which s. 44 applied.
The application to reconsider was granted. The hearing will reconvene to consider the merits of the appeal.