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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 255 15
7/20/2015
A. Patterson

  • Labour market re-entry {LMR} (cooperation)

The worker suffered a hip injury in February 2007, for which he was granted a 3% NEL award. The worker appealed a decision of the Appeals Resolution Officer confirming closure of the worker's LMR plan for lack of co-operation and basing LOE benefits on deemed earnings in the identified SEB. Non-co-operation can take the obvious form of a single event or decision. It can also be characterized by a pattern of incidents which, considered individually, would not result in a finding of non-co-operation. The Board identified a SEB in property management. The worker objected to this SEB. He wanted a SEB in project management. The Board was of the view that such a SEB would not be appropriate because it required onsite presence which would violate the worker's medical restrictions. A new SEB as a construction estimator was identified but the worker did not agree to it. In 2010, the worker indicated an interest in a two-year college program in building systems engineering technology. The Board agreed to this proposal and the SEB was changed to mechanical engineering technologist and technician. However, the worker failed to register for the course. Over a two-month period, there were constant delays, each one of which was relatively innocuous (such as having trouble with his phone, needing to get a credit card, missing meetings due to minor illness or other reasons). However, the pattern and repetition of delays was revealing of a general intent not to co-operate. The Vice-Chair concluded that the LMR program was appropriately cancelled due to lack of co-operation. Accordingly, the granting of LOE benefits based on deemed earnings in the SEB was correct. The appeal was dismissed.