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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 225 15
3/17/2015
J. Moore

  • Availability for employment (relocation)
  • Available employment
  • Loss of earnings {LOE} (review) (extension)
  • Work transition plan (suitability of program)

The worker suffered an elbow injury in June 2002. The Board identified an SO of medical lab assistant. The training program did not end until June 2011. Under s. 44(2.1)(b) of the WSIA, the Board postponed the final LOE review until completion of the program but, then, further postponed the review because the worker was scheduled to undergo elbow surgery in July 2011. The Appeals Resolution Officer extended full LOE benefits until recovery from the surgery in December 2011, at which time LOE benefits were reduced to deemed earnings based on the SO. The worker appealed.
The worker required further treatment after December 2011. The worker was discharged from hand therapy in March 2012, with notation from the therapist that the worker's functional ability was at about 90%. The Vice-Chair was satisfied that, as of March 2012, the worker had recovered sufficiently to begin looking for and participating in employment on a full-time basis. The worker was entitled to full LOE benefits until March 2012.
Under s. 44(2.1)(b), the Board may review LOE benefits more than 72 months after the injury if the worker was being provided with LMR plan and the plan was not completed when the 72-month period expired. Board Operational Policy Manual, Document No. 18-03-06, provides that a final LOE review can be deferred if a worker is co-operating in health care measures or is involved in an LMR plan that was not completed at the time of the final review. The Vice-Chair found that the worker had not completed his LMR plan because he was participating in Board-authorized health care treatment. Accordingly, the appropriate date for the final LOE review was March 2012.
A worker is entitled to LOE benefits as long as the worker suffers a loss of earnings related to the compensable impairment. The entitlement is qualified by the Board's authority to deem likely future earnings by reference to an appropriate SO. Board policy goes on to provide that the labour market may be expanded if there are no SOs in the local labour market and that the Board may provide relocation if an SO is not available in the local labour market.
In this case, the Vice-Chair found that the SO identified by the Board was suitable for the worker but it was not available.
After completion of the work transition program, the worker searched for work in the SO in the local labour market without success. Material indicated that there were no job postings in the SO within 500 kilometres of the worker's community in northwestern Ontario, and that employment potential in the SO in northwestern Ontario was zero while employment potential in southern Ontario was only fair. In these circumstances, the worker was under no obligation to relocate.
The SO identified by the Board was not available. There was no reasonable prospect of finding employment in the SO. In the circumstances, the SO most likely to lead to future employment for the worker was a full-time job at minimum wage. The worker was entitled to LOE benefits after March 2012 was based on deemed full-time earnings at minimum wage.
The appeal was allowed in part.