Section 43 of the Act describes how benefit entitlement is to be calculated. Within that, section is the following text:
(5) The calculation of the amount of the payments is subject to the following rules:
2. The amount described by clause (2)(b) must reflect any disability payments paid to the worker under the Canada Pension Plan or the Québec Pension Plan in respect of the injury.
This seems to be a clear statement of the legislature’s intent – in law, as you know, the word ‘must’ is not negotiable. That is, if a compensable injury also attracts benefits under the Canada (or Québec) Pension Plan, then WSIB benefits are to be offset by an equal amount.
WSIB Case Managers routinely and regularly, almost without fail, do not take CPP/QPP payments into account when calculating WSIB payments. Indeed, they regularly tell employers or their representatives that they don’t ask the worker if s/he has applied, or suggest to the worker that they should. We fail to see how the Board can accurately apply the law if Case Managers are choosing to overlook the necessity of pursuing possible CPP/QPP confirmation from workers who appear likely to qualify for those benefits.
WSIB Policy 18-01-13 states:
Loss of Earnings (LOE)
The Workplace Safety and Insurance Act provides:
When calculating LOE benefits, the amount of net average earnings the worker is able to earn in suitable and available employment or business after the injury must reflect any disability payments paid to the worker under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP) in respect of the injury.
Future Economic Loss (FEL)
The Workers’ Compensation Act provides:
When calculating FEL benefits and determining the amount of net average earnings the worker is able to earn in suitable and available employment after the injury, the WSIB must have regard to any disability payments the worker may receive for the injury under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP).
[Note we haven’t added the emphasis – that’s the way it is in the published policy. We presume, therefore, the Board of Directors (who approve policies) really mean it.]
It matters. For Schedule I employers, they are bearing at least part of a burden that the Act says they should not. For Schedule 2 employers, they are paying the full freight for WSIB ignoring its own legislation.
Posted by Paul Harris