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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 312 15
3/5/2015
S. Peckover

  • Re-employment (non-compliance) (payments)
  • Board Directives and Guidelines (SIEF) (compensation and health care costs)
  • Second Injury and Enhancement Fund {SIEF} (applicability) (compensation and health care costs)

The worker suffered a compensable injury in September 2009. The Board found that the employer breached its-re-employment obligations, and granted the worker payments equivalent to LOE benefits under s. 43 of the WSIA for the one-year period from January 2010 to January 2011. The Board granted the employer 25% SIEF relief, but did not apply the relief to the benefits paid to the worker as a result of the employer's breach of its obligation to re-employ the worker. The employer appealed.
If an employer breaches its re-employment obligations, s. 41(13) allows the employer to levy a penalty on the employer and to make payments to the worker for a maximum of one year as if the worker were entitled to payments under s. 43. Section 41(14) provides that a penalty payable under s. 41(13) is an amount owing to the Board.
Board Operational Policy Manual, Document No. 14-05-03, on SIEF, allows the Board to transfer all or part of the compensation and health care costs of a claim to the SIEF.
Section 41(13) and (14) makes clear that part of the penalty that can be levied against an employer is payments equivalent to LOE benefits under s. 43 and that these payments are an amount owing to the Board. Thus, these payments are not part of the compensation or health care costs that can be transferred to the SIEF. Granting SIEF relief on such amounts would be contrary to the intention of the provision of s. 41(13) of imposing a penalty on the employer.
The Vice-Chair concluded that the employer was not entitled to SIEF relief on the payments made by the Board under s. 41(13) for the period from January 2010 to January 2011. The Vice-Chair noted that, after January 2011, the Board paid LOE benefits to the worker under s. 43. The employer was entitled to SIEF relief on those benefits which were paid under s. 43. The Vice-Chair also noted that the employer would be entitled to SIEF relief on all health care costs paid at any time during the claim, including from January 2010 to January 2011.
The appeal was allowed in part.