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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 1861 14
10/29/2014
M. Crystal

  • Election (withdrawal)
  • Loss of earnings {LOE} (older worker)
  • Work transition plan (older worker)
  • Board Directives and Guidelines (work transition plan) (older worker)

A 60-year-old worker suffered a low back injury in May 2009, for which she was granted a 13% NEL award. The worker appealed a decision of the Appeals Resolution Officer finding that the worker was not entitled to rescind her decision to accept an older worker self-directed work transition plan. The worker met with the Board and the employer in December 2010. The worker's representative was not at that meeting. After that, there were a number of other meetings but it appears that the worker's representative was not given notice of these meetings. In March 2011, the worker agreed to the older worker no-review option under s. 44(3) of the WSIA. When the worker's representative learned that the worker had agreed to the no-review option, she contacted the Board to request reconsideration. The Vice-Chair noted that Board Operational Policy Manual, Document No. 18-03-04, requires decision-makers to advise the worker of the no-review option by letter. This is a mandatory requirement of the policy. In this case, it appears that a notice letter was not sent to the worker or anyone on behalf of the worker. The Vice-Chair also noted that the worker was unsophisticated and did not appear to understand the implications of accepting the no-review option. The worker contacted her representative the day after signing the agreement to the no-review option. The representative had not been advised of the agreement until after it was signed. In the circumstances, the Vice-Chair concluded that the worker's irrevocable direction to accept the no-review option was not an informed direction and was not valid. The Vice-Chair directed the Board to determine the worker's entitlement to work transition services and LOE benefits beyond March 2011 on the basis that she has not agreed to the no-review option. The appeal was allowed.