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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 786 16
7/28/2016
R. McCutcheon

  • Loss of earnings {LOE} (termination of employment)
  • Work transition plan (self-directed program)

The worker was employed by a company that produced crackers and breads. The worker developed asthma in June 2011. In August 2011, the worker resigned from the employer. He found part-time work in the meat department of a supermarket in September 2011. He also enrolled in a college program to become a security guard.
The Board investigated and granted initial entitlement in a decision dated in February 2012. In August 2012, the Board approved an SO as a corporate security officer and sponsored the worker for the second year of his college program.
The employer appealed a decision of the Appeals Resolution Officer granting the worker full LOE benefits from August 2011 to September 2011 and granting partial LOE benefits after September 2011.
The worker was entitled to full LOE benefits from August 2011 to September 2011. The employer was unable to provide modified work that did not involve exposure to flour. The Board correctly granted full LOE benefits from the date of his resignation until he found alternative part-time work. The loss of earnings during this period resulted directly from his occupational asthma.
The worker participated in self-directed work transition activity, by identifying a suitable occupation and enrolling in the college program, at a time when the Board was still investigating the worker's claim. Section 42 of the WSIA provides that the Board shall provide the worker with an LMR or WT assessment if it is unlikely that the worker will be re-employed by the employer, if the employer has been unable to arrange appropriate work for the worker of if the employer is not co-operating in ESRTW.
In this case, the evidence clearly demonstrated that the statutory requirement for entitlement to an LMR assessment had been met. The period of time until the Board activated WT services in August 2012, involved retroactive adjudication. The worker appropriately mitigated his loss of income during this period by finding part-time employment and starting the college program in his chosen field of security.
The SO approved by the Board correctly gave weight to the worker's choice of college program, in addition to considering other factors.
The employer complained about the delay in initiation of WT activities by the Board. While there may have been some delay, the Vice-Chair found that a worker's entitlement to LOE benefits and WT services does not turn on the Board's administrative efficiency in providing services. The worker met the statutory requirements for LOE benefits and WT services in that he had a loss of earnings that resulted from the injury and the employer had not offered suitable work.
The appeal was dismissed.