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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 1876 16
9/16/2016
J. Frenschkowski

  • Loss of earnings {LOE} (review) (after completion of LMR plan)
  • Work transition plan (adequacy of program)

The worker suffered a foot injury in July 2005, for which he was granted a 15% NEL award. A SEB of computer programmer was identified. The Board sponsored the worker for 10 months of educational upgrading, nine semesters of a college level program, employment placement services and job search assistance. The Board deferred the final LOE review. LMR services were closed in March 2012, upon completion of the placement services and job search assistance. The Board conducted the final LOE review in April 2012 and based benefits on entry level wages in the SEB.
In May 2012, the worker obtained a three-month unpaid internship, after which he was hired. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits for the period from May 2012 to August 2012.
Section 42(6) of the WSIA requires an LMR plan to contain the steps necessary to enable the worker to re-enter the labour market in a suitable SEB. Board policy states that a WT plan or an LMR plan is closed when the worker successfully completes the WT or LMR plan or returns to work.
The worker submitted that the unpaid internship was analogous to a work trial and that the Board should have exercised discretion to extend the LMR plan to include that activity.
The Vice-Chair found that the worker was provided with an LMR program that included all the steps to make him employable in the SEB. The worker successfully completed the LMR program. He was diligent and hard-working. There was no evidence to suggest that he was not qualified to re-enter the labour market. There was no evidence that further steps, such as an unpaid placement, were required to enter the work force in the SEB. The worker was in the same position as the other students who graduated from the program.
After successful completion of the LMR plan, the Board correctly closed the LMR plan and conducted the final LOE review within the appropriate time frame. The unpaid internship began after the final LOE review. There was no further basis in this case to review LOE benefits after the final review.
The appeal was dismissed.