Highlights of Noteworthy Decisions

Decision 273 10 I
08/08/2013
S. Martel - M. Trudeau - D. Besner
  • Retirement benefits
  • Loss of earnings {LOE} (older worker)
  • Charter of Rights (equality rights) (discrimination) (age)

The worker suffered bilateral leg injuries in July 2003, for which he underwent above-knee amputation of his left leg. The Board granted the worker a 47% NEL award. The worker was 65 years old at the time of the accident. The Board paid LOE benefits for two years, until July 2005, pursuant to s. 43(1)(c) of the WSIA. The Board also did not set aside retirement benefits for the worker under s. 45 because, pursuant to s. 45(1), the section did not apply to a worker who is 64 years of age or older on the date of the injury. The worker appealed.

The worker raised a Charter of Rights challenge, based on age, to ss. 43(1)(c) and 45(1).
In this decision, the Panel found that the worker would have continued working past age 67 (beyond July 2005, when the Board terminated benefits) had it not been for his compensable injury. Therefore, he had a loss of earnings beyond July 2005. Further, but for the worker's age, he met the other legislative requirement for receipt of loss of retirement income benefits under s. 45.
The appeal will now proceed to the next phase of the hearing in order to consider the constitutional question.