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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 498 13
1/31/2014
S. Hodis - D. Purdy - K. Hoskin

  • Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)

The worker suffered a shoulder injury in 2000, for which she was granted a 14% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying redetermination of her NEL award and review of her LOE benefits after the final LOE review.
The Panel compared medical evidence regarding the worker's compensable condition and found that the worker suffered a significant temporary deterioration from April 2010 to January 2011. However, the deterioration was not permanent and, accordingly, the worker was not entitled to redetermination of her NEL award.
Under the provisions of ss. 44(2.1)(f) and 44(2.4.3), the worker was entitled to payment of LOE benefits during the period of the deterioration from April 2010 to January 2011. She was able to perform some work during that time. She was entitled to partial LOE benefits for her wage loss.
The worker submitted that she was participating in ESRTW activity at the time of the final 72-month lock-in review in 2006, and that, accordingly, she was entitled to review of her LOE benefits under s. 44(2.1)(g). However, the Panel noted that, under s. 44(2.4.4), when s. 44(2.1)(g) applies, the Board may review LOE payments up to 24 months after the expiry of the 72-month period. That 24-month period expired in 2008, which is prior to the period for which the worker was seeking a review.
The worker also did not qualify for review under s. 44(2.1)(d) and s. 44(2.4.1), because the deterioration was temporary and did not result in redetermination of degree of permanent impairment.
The worker was entitled to the partial LOE benefits from April 2010 to January 2011 as a result of the temporary deterioration of her condition. The appeal was allowed in part.