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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 1180 14
7/7/2014
S. Netten - E. Tracey - A. Signoroni

  • Suitable employment (factors other than physical capability)
  • Board Directives and Guidelines (suitable employment)

A 68-year-old mushroom picker fractured his hip in a fall in March 2011. The employer proposed a return to work plan consisting of home-based English courses, for which the worker would receive his regular full-time wages. The employer appealed a decision of the Appeals Resolution Officer finding that this work was not suitable. Board Operational Policy Manual, Document No. 19-02-01, defines suitable work as post-injury work that is safe, productive, consistent with the worker's functional abilities and that, to the extent possible, restores the worker's pre-injury earnings. It can include short-term training which leads to a job with the accident employer. The Panel noted that productive work is defined in Document No. 19-05-02 as work that the worker has, or is able to acquire, the necessary skills to perform and whose tasks provide an objective benefits to the employer's business. Document No. 19-05-02 deals with re-employment obligations in the construction sector and was not applicable to this appeal but the Panel found the definition reasonable and useful. In addition, the Panel noted that more recent versions of Document No. 19-02-01 include the concept of productive work as requiring an objective benefit to the employer's business. In this case, the worker was 68 years old at the time of the accident. He did not require English language skills for the pre-injury job. Prior to the accident, the employer did not provide English language training and did not request that the worker obtain such training. The employer did not have a plan which involved lighter duties which required English language skills. The proposed plan did not constitute short-term training that would lead to a job with the employer. The Panel concluded that the English language training in this case did not constitute productive work. The worker was entitled to continuing LOE benefits. The appeal was dismissed.