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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 15 18
1/17/2018
A. Somerville

  • Loss of earnings {LOE} (lay-off)
  • Board Directives and Guidelines (LOE) (lay-off)

The worker suffered a shoulder injury in November 2014. He continued to work at modified work with no wage loss until a scheduled temporary plant shut down from February 16, 2015 to May 19, 2015. The worker underwent compensable shoulder surgery on March 30, 2015. The employer appealed a decision of the Appeals Resolution Officer granting the worker full LOE benefits from March 30 to May 19.
Board revised Operational Policy Manual, Document No. 15-06-02, dated November 3, 2014, on entitlement following temporary work disruptions, states that it applies to workers who are partially impaired and fit for suitable and available work at, or subsequent to, the start of a temporary work disruption. It provides that the Board generally maintains LOE benefits the worker was receiving at the start of a temporary work disruption.
There is an exception, allowing payment of additional LOE benefits if evidence indicates that the worker would seek new employment in the general labour market and the work-related injury impacts the worker's ability to earn income through new employment. In this case, there was no evidence of the worker seeking new employment in the general labour market. However, the Vice-Chair found it clear that this part of the policy applies to workers who are partially impaired and fit for work, whether modified or otherwise. It does not explicitly address circumstances where, during a lay-off, a compensable injury temporarily completely prevents a worker from seeking new employment or returning to any type of work.
While the policy states that the Board generally maintains LOE benefits the worker was receiving at the start of the work disruption, it also states that LOE benefits may be adjusted if the worker's level of impairment significantly improves or deteriorates during the work disruption. In this case, the worker was totally impaired as a result of the compensable surgery from March 30 to May 19. The Vice-Chair found that the policy allows payment of additional benefits in such circumstances. This is also consistent with Document No. 18-03-02, which provides for full LOE benefits if an injury prevents a worker from returning to any type of work, providing the worker co-operates in health care measures, and with s. 43(1) of the WSIA, which provides for payment of LOE benefits beginning when the loss of earnings begins.
The worker was entitled to full LOE benefits during the period in question. The appeal was dismissed.