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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 1387 15
7/13/2015
M. Crystal

  • Board Directives and Guidelines (health care) (independent living)
  • Health care (attendance allowance)
  • Rehabilitation (lessening handicap)
  • Health care (independent living) (severely disabled worker)

The worker suffered a low back injury in 1973, for which she was granted a 15% pension, increased over the years to 50%. The Board also granted the worker a 25% pension for psychotraumatic disability, so that the worker's total pension was now 75%. The worker appealed a decision of the Appeals Resolution Officer denying the worker a personal care allowance or an independent living allowance.
Board policy sets a 100% pension (or a 60% NEL award) as a specific prerequisite for a PCA or ILA. Tribunal jurisprudence has found that, to be entitled to a PCA or ILA when the 100% pension rating prerequisite has not been met, two factors must be considered: the circumstances of the need for assistance arising from the compensable injury must be exceptional; and the pension rating must be approaching the numerical rating prerequisite. The Vice-Chair was of the view that there may be circumstances in which an award may be warranted if the need is highly exceptional even if the pension rating is significantly below 100%, or an award may be warranted when the pension rating is closer to 100% even though the need is less exceptional.
In this case, the worker, who was 77 at the time of the hearing, could benefit from assistance but her needs were not highly exceptional and her pension rating was only 75%, which was significantly below the 100% pension stipulated in the policy.
Section 54 of the pre-1985 Act allows the Board to make expenditures to assist in lessening a handicap resulting from a worker's injuries. The worker submitted that this provision did not restrict entitlement in any manner. The Vice-Chair found that this argument could lend some additional support in situations where entitlement is well supported on the merits and justice. However, the provision does not establish entitlement when the need for assistance does not reflect exceptional circumstances and the pension rating is well below 100%. Otherwise, s. 54 could result in awards of substantial assistance to workers who have not sustained severe levels of permanent disability. The Vice-Chair found that the Board policy was not inconsistent with s. 54 of the pre-1985 Act.
The worker was not entitled to a PCA or ILA. The appeal was dismissed.