A Good Option for Schedule 2 Employers to Consider: Section 63 agreements – a review of Decision No. 1332/23

This case involved an appeal by a worker who sustained a workplace injury on September 25, 2012, while employed as a Personal Support Worker (PSW) for a Schedule 2 employer. At the time of the injury, she was receiving income from two sources: her role as a PSW and self-employment in real estate. The worker had not opted for optional WSIB coverage for her real estate work, so her pre-injury real estate income was not included in the WSIB’s calculation of her loss of earnings (LOE) benefits. Despite this, the WSIB considered her post-injury real estate income as post-accident earnings in “suitable and available employment,” which it used to offset the LOE benefits she would otherwise receive. The worker argued that this approach was inconsistent and unfair, as her real estate income was not part of the pre-injury earnings calculation but was considered after the injury. She appealed this decision to the WSIAT.

The core issue the WSIAT had to determine was whether the worker’s post-injury real estate earnings should be offset against her LOE benefits, given that her pre-injury real estate income had not been considered in the original LOE calculation. The worker's representative and the employer's representative reached an agreement, pursuant to section 63 of the Workplace Safety and Insurance Act, 1997 (WSIA), which allows a Schedule 2 employer and a worker to enter into settlements regarding benefits, subject to approval by the WSIB or WSIAT. In this case, both parties requested that the WSIAT approve the agreement, rather than return the issue to the WSIB, citing concerns about efficiency and cost.