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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 511 14
10/22/2015
R. Nairn

  • Suitable employment
  • Re-employment (termination)
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a neck and shoulder injury in January 2007. The claim was filed in June 2007. The Board initially denied entitlement. It allowed entitlement in 2009, and granted the worker an 18% NEL award. The worker's employment was terminated shortly after the worker filed the claim in June 2007. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after June 2007 and finding that the employer did not breach its re-employment obligations.
The worker had medical restrictions against lifting from floor to overhead and working at above shoulder level. The worker submitted the work she was performing for the employer was not suitable. The Vice-Chair found that the worker's duties involved repetitive lifting but did not exceed the medical restrictions. The Vice-Chair also referred to Decision No. 2066/11, in which it was commented that a determination of whether a job is suitable requires more than a mechanical comparison of medical restrictions and job requirements; it requires consideration of other evidence such as actual ability to perform the job (if attempted) and medical reporting while performing the job. In this case, the worker was able to perform the duties offered to her between January and June 2007, and there was no significant medical evidence of complaint to her doctor about the appropriateness of her duties.
The Vice-Chair found that the job duties being performed were appropriate and that the employer would have been able to continue providing the worker with these suitable duties, had the employer not terminated her employment in June 2007.
The termination of employment was not related to her compensable condition. The worker had been the subject to two prior disciplinary incidents. The final straw was when she was found on the golf course while off sick from work.
The worker was not entitled to LOE benefits after June 2007. The employer did not breach its re-employment obligations when it terminated the worker's employment in June 2007. The appeal was dismissed.