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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 943 13
8/28/2013
R. Nairn

  • Consequences of injury (iatrogenic illness) (medication)
  • Interest
  • Apnea (sleep)
  • Election (retirement benefits)
  • Consequences of injury (inactive lifestyle)

The worker suffered a low back and hip injury in 1999, for which he was granted a 26% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for sleep apnea and kidney stones and denying entitlement to interest on delayed voluntary worker contributions to retirement benefits. The worker weighed about 275 pounds before the accident. After the accident, his weight increased to about 385 pounds. Before the accident, his weight was stable and he was quite physically active. On the evidence, the Vice-Chair found that the weight gain was a secondary condition directly attributable to inactivity following the accident. The weight gain made a significant contribution to the development of the sleep apnea. The worker had entitlement for the sleep apnea. He was also entitled to health care benefits for a CPAP machine. The worker had entitlement for kidney stones, as a secondary condition resulting from medication prescribed for pain due to the compensable injury. Section 45(2) of the WSIA requires the Board to set aside 5% of payments to the worker for retirement benefits. Section 45(3) allows a worker to elect to contribute an additional 5%, which is then deducted from the payments to him. In this case, the worker advised the Board in 2000 that he wanted to make the additional 5% contribution but the Board failed to make the contribution. The worker was willing to make the additional contributions now but wanted the Board to pay the interest that would have accrued on that money had the extra contributions been made as anticipated. The Vice-Chair noted that Board policy allows for payment of interest on delayed payment of retirement benefits. However, the policy does not allow for interest on delayed contributions. There is no authority in the Act or Board policy to pay for a lost opportunity. The worker was not entitled to interest on the delayed contributions. The appeal was allowed in part.