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.
The WSIAT was initially tasked with determining whether it had jurisdiction to approve such agreements. Although section 63 typically references the WSIB as the approving authority, both parties cited previous case law suggesting that the WSIAT also has the authority to approve section 63 agreements. After reviewing various decisions, including Decision No. 2091/19 which noted that section 123(1)(a) of the WSIA grants the WSIAT jurisdiction over appeals dealing with various worker benefits, the Vice-Chair concluded that the WSIAT does, in fact, have jurisdiction to approve these types of agreements in the same manner as the WSIB.
The Vice-Chair then reviewed the parties’ agreement, which followed the worker's argument that only post-injury real estate earnings that exceeded her pre-injury real estate income should be offset against her LOE benefits. The Vice-Chair outlined that the necessary conditions for approval would encompass the following:
1) The agreement was voluntarily entered into by both parties, free from coercion or any significant power imbalance, with each party fully understanding their rights and obligations under the insurance plan, as well as having a reasonable understanding of the potential outcomes if no agreement were reached;
2) The Tribunal can confirm that the payment in lieu of benefits, as outlined in the agreement, is reasonably aligned with and reflective of the benefits or payments the worker might be entitled to under the WSIA; and
3) The content of the agreement is fair and reasonable in all respects, ensuring that the worker is not effectively forfeiting benefits they would likely have received if the Tribunal had made a determination.
The Vice-Chair found that these three conditions precedent had been met by the parties, and as such approved the agreement and granted the worker’s appeal. The Vice-Chair did note that the WSIAT was not to be considered a signatory to the agreement.
This case highlights several important considerations for both workers and employers:
For workers, it underscores the complexity of concurrent employment and the importance of optional WSIB coverage for self-employment. Without such coverage, a worker's self-employment income may not be considered in their pre-injury earnings, potentially leading to reduced benefits. On the other hand, post-injury income from self-employment could still be used to offset LOE benefits, which could lead to what appears as an inconsistent application of the WSIA provisions.
For employers, it reinforces the importance of understanding how the WSIB calculates LOE benefits, especially in cases involving workers with multiple income sources. The WSIAT's decision to assume jurisdiction over section 63 agreements, similarly to the WSIB, also offers a more streamlined, cost-effective option for resolving disputes by a Schedule 2 employer without needing to return to the WSIB for approval, thereby avoiding the additional time and expense associated with prolonged disputes or appeals.
* The views expressed in this article are those of the author, and do not necessarily express those of the Office of the Employer Adviser.
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