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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 494 15
4/9/2015
S. Martel

  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Loss of earnings {LOE} (review) (final)
  • Loss of earnings {LOE} (review) (extension)

The worker suffered a neck and upper back injury on July 16, 2005, for which she was granted a 47% NEL award. She returned to work but stopped working in June 2007. On June 29, 2011, just before the end of the 72-month LOE review period, the Board found that the worker was entitled to full LOE benefits from June 2007 and that she had entitlement for psychotraumatic disability. The Board then deferred the final LOE review until January 2013. In December 2012, the worker was granted CPP disability benefits. In January 2013, the Board granted LOE benefits based on deemed part-time earnings. The worker appealed a decision of the Appeals Resolution Officer denying full LOE benefits and confirming a 30% NEL rating for the psychotraumatic disability. The worker submitted that the Board should not have deferred the final LOE review, that she was entitled to full LOE benefits as of the appropriate LOE review date in July 2012, and that the full LOE benefits should not be offset by the CPP disability benefits because the CPP benefits were granted after July 2012. On the evidence, the Vice-Chair confirmed the 30% NEL rating for psychotraumatic disability. The Board deferred the final LOE review based on the worker co-operating in health care measures, pursuant to s. 44(2.1)(g) of the WSIA. The worker submitted that the Board postponed the final review with a view to labelling the worker as non-co-operative in the hope she would refuse treatment or refuse to participate in WT services. However, the Vice-Chair found that the deferral of the final LOE review was not artificial but, rather, that it was legitimate in this case. After allowing entitlement for psychotraumatic disability, it was appropriate for the Board to look into assisting the worker in rehabilitation of a psychological and work-related nature. The Board followed the advice of numerous professionals regarding possible occupational therapy, medication management and psychological counselling. The Board correctly deferred the final LOE review until January 2013. The Board found that the worker was capable of working part-time in January 2013. However, the Vice-Chair found that the worker was unlikely to be able to maintain any employment, considering her organic and non-organic conditions. The worker was, therefore, entitled to full LOE benefits from January 2013, onwards. By that time, she had received CPP disability benefits. The worker's full LOE benefits should be offset by the amount of her CPP disability benefits. The appeal was allowed in part.