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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 697 18
6/19/2018
K. Jepson - S. Sahay - F. Jackson

  • Loss of earnings {LOE} (wage loss)

The Board denied the worker LOE benefits during a function and pain program (FPP) on the grounds that the worker was not earning any income prior to attending the FPP.
The Panel referred to Decision No. 3131/16 (and a number of other decisions that cited and applied it). Decision No. 3131/16 dealt with a deterioration in a worker's compensable condition and found that the worker had a further reduction in earning capacity as a result of the injury, considering that the comparison point was pre-accident earning capacity, not actual earnings at the time of the deterioration.
The Panel found that a parallel analysis applies to the worker in this case, who attended the FPP. When she started attending the FPP, she had a full loss of earnings, measured relative to her pre-accident earnings. She was not receiving LOE benefits prior to attending the FPP as the Board had determined that she was capable of modified work with the accident employer at no wage loss. However, the Panel found that, whatever earning capacity the worker had retained, it was suspended during the period she was participating in the FPP. During the period in question, her loss of earnings was due to participating in this Board-approved health care program.
The worker was entitled to full LOE benefits while participating in the FPP.