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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 375 14
1/11/2016
J. Dimovski - E. Tracey - K. Hoskin

  • Labour market re-entry {LMR} (suitability of program)

The worker suffered a neck and shoulder injury in 2004, for which she was granted a 20% NEL award. She returned to modified work but laid off in January 2008. The Board then provided LMR services and identified a SEB as a financial and insurance clerk. Later, it changed the SEB to customer service clerk. The worker appealed a decision of the Appeals Resolution Officer denying a redetermination of the NEL award, denying entitlement for psychotraumatic disability and denying reinstatement of the original SEB.
On the evidence, the worker was not entitled to redetermination of the NEL award and did not have entitlement for psychotraumatic disability.
The original SEB required academic upgrading followed by a diploma course in accounting and payroll administration, followed by a temporary job placement and job search training. The LMR program was to run from August 2008 to January 2011. After the program, it was expected that the worker would be able to approximate her pre-accident earnings. By February 2010, the Board had obtained a psycho-vocational report and had determined that the worker was unlikely to be able to complete her academic programming and that the SEB was not suitable. It identified a new SEB as a customer service clerk, which involved a six-week job placement and job search training. After this program, it was expected that the worker would have a partial wage loss.
As noted in previous decisions, the WSIA and Board policy do not require the Board to develop whatever academic potential a worker had at the time of the accident. The Board is also not required to increase its commitment because a worker has the capacity to succeed in enhancing earning potential well beyond the pre-injury level. Rather, the Board's obligation is to establish an LMR plan with a realistic objective to reduce or eliminate loss of earnings resulting from a compensable accident. At times, this may result in programs that are less than ideal from the worker's point of view but which still end up restoring pre-injury earnings. Board policy states that the LMR plan must be the most cost-effective way to enable a worker to re-enter the labour market.
In this case, the Board directed its efforts to providing the worker with a cost-effective plan that would return the work to the work force as soon as it could, even if it meant providing partial LOE benefits to age 65. The original plan had been delayed a few times. The psycho-vocational report supported the Board's decision to change the SEB to customer service clerk. The original plan was not cost-effective compared to the amended plan. The amended plan was appropriate for the worker.
The appeal was dismissed.