Highlights of Noteworthy Decisions

Decision 1646 22
L. Petrykowski
  • Retirement benefits (accumulated investment income)

The issue to be decided in this appeal was whether the worker had entitlement to retroactive accumulated investment income from April 9, 2002.

The appeal was denied.
The worker, now age 68, began working with the employer around 1990. On April 9, 2001, she slipped at work and injured both her right shoulder and lower back. The Board's operating level accepted initial claim entitlement for these injuries. The worker went on to develop an injury-related chronic pain disability. On August 2, 2019, the Board's operating level determined that the worker was entitled to full Loss of Earnings (LOE) benefits from July 8, 2002 to age 65. The worker was later issued a lump sum Loss of Retirement Income (LRI) benefit payment on October 4, 2019. The worker's representative submitted that the Board had failed to include the equivalent amount of the accumulated investment income starting from April 9, 2002 and that these circumstances were "because the WSIB made an error in not paying her benefits in a timely fashion".
Decision No. 1105/19 found that the legal meaning of the phrase "accumulated investment income" refers to income that is generated by investments while remaining in an account that has yet to be distributed by the Board". It was noted that the WSIA, Board policy and Tribunal case law do not support the "competing analysis" of the worker's representative that the Board should re-open the LRI fund and determine retroactively what an injured worker would have received in accumulated investment income, had LOE benefit payments been made at an earlier date. LRI contributions do not begin to earn investment income until they are actually in the LRI fund and are invested. This was relevant in the present appeal as the Board's determination to pay retroactive LOE benefits from 2002 onwards was only made on August 2, 2019, shortly after the worker had already reached 65 years of age. The worker was then paid out her LRI retirement benefit on October 4, 2019 in accordance with subsection 45(5) of the WSIA that states that she is entitled to it "when the worker reaches 65 years of age".
In addition, there was no mechanism or practice of the Board to calculate retroactive accumulated investment income for the preceding seventeen years in the instant case, nor was such a mechanism or Board practice identified in the similar circumstances of Decision No. 1105/19. In essence, due to the retroactive nature of the LOE benefits payment in 2019, there was a lost opportunity to earn or accumulate potential investment income in the LRI fund back to 2002, as the worker had already turned 65 years of age by the time of this payment. It was stated that "the Tribunal case law is consistent in declining to compensate for lost opportunity". There was also no guarantee that the Board's investment process would reap any gain due to volatility and fluctuations in the market. In the Vice-Chair's view, Board policy does not support the possibility of any retrospective assessment for accumulated income investment in a case where monies were not actually in the LRI fund, due to the later timing of a decision to award retroactive LOE benefits entitlement under a worker's claim. In reading section 45 as a whole, one cannot have "accumulated investment income" until monies are actually invested in the fund contemplated under s. 45(12). The Vice-Chair also declined to apply OPM Document No. 11-01-03 to the circumstances.