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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 749 15
4/27/2015
M. Crystal

  • Suitable employment
  • Board Directives and Guidelines (labour market re-entry)
  • Labour market re-entry {LMR} (cooperation)

The worker was a salesperson in a retail clothing store. She suffered a low back injury in July 2005, for which she was granted a 9% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after March 2008. The worker returned to modified work with the employer on a graduated basis. However, the employer was only able to provide modified, sedentary work for four hours per day. Beyond that, the employer could only offer regular work, which was beyond her restrictions. The Board would not pay partial LOE benefits based on part-time work. Rather, the Board offered LMR services with the goal of full-time sedentary work. The worker refused the LMR services. Section 42(7) of the WSIA requires a worker to co-operate in all aspects of an LMR assessment or plan. Section 43(7) allows the Board to reduce or suspend payment during any period when the worker is not co-operating in all aspects of an LMR assessment or plan. Board Operational Policy Manual, Document No. 19-03-10, on co-operating in LMR, states that the Board may reduce or suspend benefits if a worker fails to co-operate in an LMR program. According to the policy, if a SEB has been identified, benefits are adjusted to reflect earnings in the SEB. If a SEB has not been identified and the Board is unable to identify a SEB because of the non-co-operation, the benefits may be reduced or suspended. In this case, the worker refused to participate in the LMR program. A SEB was not formally identified but it was clear that the worker required sedentary work. The Vice-Chair was satisfied that, if the worker had participated in the LMR process, a SEB in sedentary clerical work would have been identified. Earnings in such a SEB would have approximated or restored her pre-injury earnings. In these circumstances, where there was no legitimate reason for non-co-operation, the worker was not entitled to further LOE benefits. The appeal was dismissed.