ISSUE TITLE: OLDER INJURED WORKERS’ RIGHTS
DEMANDS
1. Eliminate the age 65 limits on WSIB Benefits, including Loss of Earnings
2. Restore the WSIB’s contribution to Loss of Retirement Income benefit to 10% of LOE, if not higher
BACKGROUND
Age 65 limits to benefits
Worker’s compensation legislation has, since 1990, limited the payment of wage loss benefits based on age. Wage loss benefits end at age 65, or 2 years after a new injury if the worker is over age 63 at the time of injury. (There are also limits to awards for permanent impairment (ie. Non-Economic Loss) based on age. The Non-Economic Loss also decreases by age: those injured between 45 and 65 get less than those under age 45, even if their permanent impairment is the same.)
The mandatory retirement age in Ontario used to be age 65. Then, the Supreme Court of Canada ruled that mandatory retirement is age discrimination contrary to the Charter of Rights and Freedoms. In 2005, the Ontario Human Rights Commission ruled the mandatory retirement age was discriminatory. The Ontario Human Rights Code was amended in 2007 to prohibit mandatory retirement and discrimination based on age. The WSIB requested an exemption because, it said, it would be complicated to remove the age limits. 17 years have passed to iron out the “complications” of presuming mandatory retirement, but nothing has changed. Legislative change occurred elsewhere, but the age-related limits on benefits remain in WSIA.
The realities of today’s economy have shifted, and many people continue to work past age 65. The amount of workers remaining in the workforce after age 65, by necessity and/or choice, has been steadily on the rise in Canada over the past two decades. This trend will likely continue to rise with fewer workplace pensions and with unprecedented cost-of-living increases in recent years that do not appear to be abating. About half of Ontario workers are still working when they reach age 65.
A workplace injury can leave injured workers destitute in their “golden” years because of the legislated age discrimination. No one plans to be hurt at work nor to be hurt badly enough to be unable to work. Like most people, financial planning decisions – mortgage, bills etc. – are based on take-home pay and the date of planned retirement.
Now, more so than ever, the planned retirement age is age 70 or later.
If injured under age 63, a worker’s wage loss benefits end at age 65, regardless of how long the worker had planned to work. If over age 63 when injured, wage loss benefits end 2 years after the date of injury, even if the worker planned to work beyond those 2 years. If a worker is working and has a recurrence of a prior workplace injury after age 65, no wage loss benefits are payable because the law does not recognize this as a “new” injury.
When the law cuts off wage loss benefits based on age, injured workers and their families face financial ruin – ruin attributable only to the worker’s age at the time of the accident.
Ontario seniors who continue to work past age 65 should have the financial protection of WSIB wage loss benefits up to their retirement age when they suffer a workplace injury. Alberta and British Columbia Worker’s Compensation Boards removed the age 65 restrictions. Ontario injured workers should expect no less protection than workers get in other provinces. The law must be amended to remove the discrimination against older injured workers.
Loss of Retirement Income Benefit
The purpose of the WSIB Loss of Retirement Income (LRI) benefit, introduced in legislation in 1990, was to make up for the loss of CPP retirement income. WSIB benefits do not count as earnings for the purposes of the Canada Pension Plan. This means that injured workers who are not working cannot contribute to CPP. This greatly reduces the amount of CPP-Retirement income that is available to the worker at age 65, unless the worker can be granted Canada Pension Plan Disability benefits in the interval.
From 1990 to 1998, the WSIB paid an amount equivalent to 10% of wage loss benefits into the LRI, so long as the worker had been in receipt of benefits for one year. However, the 1998 legislation reduced the mandatory contribution from the WSIB to an amount based on 5% of the wage loss benefits. While workers injured after 1998 could choose to contribute 5% from the wage loss benefits that they received, few could afford to do so. Only 13% were able to make the additional 5% contribution, according to WSIB statistics.
Restoring the WSIB LRI contribution to 10% of the wage loss benefits would partially ameliorate the poverty that injured workers face when they turn 65. However, even a restoration of the 10% contribution from the WSIB would not be sufficient to match the CPP contributions.
The ideal contribution to LRI would see the WSIB’s portion be the value of the CPP premiums paid by workers and employers, based on gross earnings. The CPP contribution rate is now about 12% of gross earnings. The WSIB’s contribution to the LRI should be equal to this value. There should be no required contribution from the injured worker.
INJURED WORKERS’ STORIES
1. A worker was badly injured at age 64 in 2022, making him unable to work. The plan had been to work past age 70, and the worker has a mortgage until then. The Loss of Earnings benefits will end in 2024 because of the 2 year limitation in the Act, leaving the worker and his family with no means to make the payments on the mortgage unless he can recover sufficiently to return to some sort of work and can find an employer willing to hire an older injured worker.
2. An injured worker had a significant injury in 2013 at age 56. While the worker was able to continue to work thanks to accommodations by the employer, the injury has worsened to the point where surgery – and time off from work – will be necessary. However, the wording of the legislation means that the worker cannot get Loss of Earnings payments for the time off work needed for this surgery, because this is a recurrence, not a new injury.
MORE INFORMATION
· Retirement pension poverty among injured workers with long-term workers’ compensation claims, The Economic and Labour Relations Review (2023), 1–19 doi:10.1017/elr.2023.43
· Ontario Legal Clinics Worker’s Compensation Network, c/o Injured Workers Community Legal Clinic, 815 Danforth Avenue, Suite 411, Toronto, ON M4J 1L2, Telephone: (416) 461-2411, Toll free: 1 (833) 461-2411