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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 716 13
7/31/2013
E. Smith

  • Earnings basis (retirement pension)
  • Time limits (appeal) (date of Board decision)
  • Earnings basis (occupational disease)
  • Earnings basis (dependency benefits)

In a letter dated October 13, 2007, the Board granted a firefighter entitlement for esophageal cancer, with an accident date in June 1998. The worker had retired in 1989 and died in 2002. The letter advised that the worker would be paid LOE benefits from 1998 to 2000. It also informed the widow that she would be entitled to survivor benefits and that those survivor benefits would be explained in detail in a separate letter. In a letter dated November 13, 2007, the Board advised of the amount to be paid for survivor benefits. The employer did not appeal either letter until it became aware that calculation of the LOE benefits and survivor benefits had been put into issue in Tribunal decisions. In a letter dated August 6, 2010, the Board confirmed its payments. The employer met the time limit to appeal stated in the 2010 letter.
The Appeals Resolution Officer found that neither of the 2007 letters met the criteria of decision letters in Board Operational Policy Manual, Document No. 11-01-02, and that, accordingly, the employer met the time limit to appeal by appealing the 2010 letter. However, the ARO confirmed the payment of LOE benefits and survivor benefits.
The estate appealed the decision of the ARO finding that the employer met the time limit to appeal. The employer appealed regarding the granting of LOE benefits and the amount of survivor benefits.
The October 2007 letter was sufficient to establish a time limit for the appeal regarding loss of earnings. It informed that the Board considered LOE benefits to be payable to a retired worker because of the extent of his disability. Document No. 11-01-02 states that a decision should explain the rationale including applicable Board policies. The October 2007 letter did not specifically refer to Board policies but generally considered the principles in the applicable policies. This was sufficient to meet the requirements of Document No. 11-01-02.
The November 2007 letter was not sufficient to establish a time limit for the appeal regarding survivor benefits. That letter did not describe itself as a decision and did not address the rationale for the payments.
Accordingly, the Vice-Chair considered the employer's appeal only regarding the survivor benefits.
The Vice-Chair agreed with previous Tribunal decisions and found that the worker did not have earnings after his retirement and that pension payments did not constitute earnings and that, accordingly, the widow was entitled to survivor benefits based on the statutory minimum.