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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 2510 17
12/14/2017
A. Patterson

  • Board policies (applicability of Board policy)
  • Loss of earnings {LOE} (older worker)
  • Board Directives and Guidelines (LOE) (worker not earning at time of determination)

The worker suffered a shoulder injury in March 2012, at age 60. The Board granted the worker a 6% NEL award for permanent impairment. In October 2014, the Board advised the worker that WT services were complete and that the worker would be receiving LOE benefits based on deemed earnings of $11 per hour. In another letter in October 2014, the Board advised the worker of the older worker option. The worker opted for the older worker option and, thus, advised the Board not to review his LOE benefits. The Board then confirmed the partial LOE benefits to age 65 based on ability to earn $11 per hour.
The employer appealed, claiming that the LOE benefits to age 65 should be based on mid-range earnings within the identified SO.
The Vice-Chair noted that the Appeals Resolution Officer decision and the parties' submissions referred to Board Operational Policy Manual, Document No. 18-03-06, on final LOE benefit review. The Vice-Chair found that Document No. 18-03-06 was not applicable to this appeal.
The worker's post-injury earnings were actually determined at the completion of WT services, pursuant to Document No. 18-03-02, on payment and review of LOE benefits prior to the final review, after the worker opted for the older worker option under Document No. 18-03-04, for LOE benefits for worker 55 years of age or older.
The no-review option does not trigger a final LOE benefit review under Document No. 18-03-06. Rather, it directs the Board not to review the LOE benefits, and to maintain LOE benefits as they stand at the time the conditions for the no-review option (age 55, reached MMR and completion of a WT plan) are met. Therefore, the worker's entitlement to benefits is correctly considered under Document No. 18-03-02.
Considering the worker's age, lack of expertise outside of his prior work and limited opportunities in the SO in his area, the Vice-Chair found that there were significant obstacles to the worker finding work in the mid-range of the SO.
The Vice-Chair confirmed benefits based on deemed earnings of $11 per hour. The appeal was dismissed.