- Loss of earnings {LOE} (employability)
- Labour market re-entry {LMR} (self-directed program)
- Loss of earnings {LOE} (eligibility) (impairment)
- Labour market re-entry {LMR} (expenses)
- Suitable occupation
The issues to be determined in this appeal were: a) the quantum of Loss of Earnings (LOE) benefits from December 7, 2018 to November 22, 2019; b) the suitability of the Suitable Occupation (SO) of Mechanical Inspector (HVAC/Plumbing); and, c) entitlement to reimbursement for two courses taken for self-directed retraining.
The appeal was allowed.The Panel found that the SO was not suitable for the worker, as it exceeded the worker's physical restrictions and functional abilities. Additionally, if a worker has engaged in a self-directed LMR plan, decisions have generally found that full benefits are payable provided there is sufficient evidence of the self-directed program (see Decision No. 1704/09). It was evident that the worker had conducted a detailed search for work. The worker's likelihood of finding suitable employment in the general labour market was limited, given the worker's age, his transferable skills, and his physical restrictions requiring accommodation from a new employer. The Panel was satisfied that the worker's compensable condition contributed significantly to his ongoing loss of earnings from December 7, 2018 to November 22, 2019, under section 43(1) of the WSIA. The worker submitted that the courses taken were part of the worker's self-directed work transition plan, and as the courses helped the worker gain employment, the worker should be reimbursed for them. OPM Document No. 19-02-10 provides that the WSIB pays for expenses that it considers appropriate to enable a worker to engage in the RTW assessment and RTW plan (with training). The expenses the WSIB pays for during the RTW plan (with training) may include, but are not limited to, expenses for services, tuition fees, books, supplies, special accommodation needs, equipment, travel, and assistive devices. The expenses are set out and agreed to before the commencement of the plan and are generally paid until the plan is completed or discontinued. However, they may be modified during the plan if necessary.The Panel acknowledged that the submitted expenses were incurred while the worker was still working with the accident employer, were not part of an approved RTW plan (with training), were not mutually set-out, and were not pre-approved prior to the worker incurring the expense. It was noted, however, that there is nothing which expressly precludes the payment of RTW expenses while a worker is simultaneously employed with the accident employer. The Panel was satisfied that the worker's self-directed efforts effectively began in March 2016, when he began taking these courses while still working with the accident employer, at a time when the worker's doctor recommended he seek alternative employment as a result of his workplace injuries. By commencing self-directed efforts proactively, the worker was able to re-enter the labour market shortly after ending his employment with the accident employer, thereby mitigating his wage loss and improving his employability. The Panel found that the worker was entitled to reimbursement for these two courses.