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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 974 16
7/19/2016
K. Jepson - B. Davis - A. Grande

  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (review) (after completion of LMR plan)

The worker suffered injuries in a compensable motor vehicle accident in January 2006. The Board granted the worker a 15% NEL award for psychotraumatic disability. The worker returned to work until 2008, when the employer was no longer able to offer modified work. The Board then began the LMR process. In December 2011, the worker advised that he was no willing to participate in LMR activities.
The final LOE review date was in January 2012. The Board closed LMR services in February 2012. In March 2012, the Board based LOE benefits at the final review on deemed earnings at minimum wage in elemental service occupations.
The worker appealed a decision of the Appeals Resolution Officer regarding the LOE benefits at the final review.
In this case, there was an LMR process that had been underway before the final LOE review. Section 44(2.1)(b) of the WSIA allows review of LOE benefits after 72 months if the worker was provided with an LMR plan and the plan was not complete whether the 72-month period expired. The Panel agreed with Decision No. 584/15 that, in order to meet the requirements for applicability of the exception in s. 44(2.1)(b), the LMR plan need not actually have been commenced by the 72-month review date nor does there necessarily need to be a final, formal LMR plan document in existence at that time.
When the worker advised in December 2011 that he would not participate in a formal LMR training program, that did not conclude the LMR process. The worker cannot simply withdraw from the LMR process on the eve of the final review and then claim that the process was terminated or that there was no plan. The Board acted reasonably to determine the worker's SEB without training, and did so within a reasonable time frame.
The LMR process was completed in February 2012, and the Board conducted the LOE review in March 2012, within 30 days, within the exception in s. 44(2.1)(b).
On the evidence, the Panel found that the worker was capable of working at minimum wage but only on a part-time basis.
The appeal was allowed in part.