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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
1/29/2018
L. Gehrke

  • 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 a 19% NEL award and 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 a decision of the Appeals Resolution Officer confirming offset of the LOE benefits by the amount of the CPP benefits.
The Vice-Chair agreed with Decision No. 3126/16 that the offset of LOE benefits by the amount of CPP benefits is to be treated as a review of LOE benefits constrained by s. 44 of the WSIA. In this case, there was no exception under s. 44 that would permit the Board to review LOE benefits in January 2016, to offset the LOE benefits by the CPP benefits.
The Vice-Chair distinguished Decision No. 516/15, which found that the Board had authority on reconsideration to offset the benefits. Decision No. 516/16 dealt with a situation in which the Board discovered a pre-72-month failure to apply the offset at the final review, whereas in this appeal the offset occurred as part of implementation of the Tribunal decision allowing full LOE benefits, and was not a reconsideration of the final LOE review.
The worker was entitled to full LOE benefits without offset of the CPP disability benefits. The appeal was allowed.