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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 98 13
1/17/2013
B. Kalvin

  • Temporary total disability (retirement)

The worker suffered a back injury in 1981, for which he was granted a 15% pension, later increased to 20% and then to 25%. In September 2009, the worker, who was then about 70 years old and had retired, underwent back surgery. Following the surgery, the pension was increased to 30%. The Board paid temporary total disability benefits following the surgery from September 2009, for 12 weeks until December 2009. The worker appealed a decision of the Appeals Resolution Officer denying further temporary total disability benefits.
Under the pre-1985 and pre-1989 Acts, a worker who is retired and, therefore, not earning income, is not by that reason alone disentitled to temporary disability benefits. Unlike the legislative scheme under the WSIA which compensates for loss of earnings, the pre-1985 and pre-1989 Acts compensate a worker for loss of earning capacity. Earning capacity can be reduced even if a worker is not earning. Therefore, temporary disability benefits may be payable to a worker who has retired. Accordingly, the worker was entitled to temporary total disability benefits for the period following the surgery during which he was completely unable to perform any kind of work.
On the evidence, the worker was entitled to temporary total disability benefits from the date of the surgery in September 2009, until he stopped attending physiotherapy in March 2010. The appeal was allowed.