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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 1649 15
12/16/2015
J. Dimovski - M. Trudeau - C. Salama

  • Loss of earnings {LOE} (review) (after seventy-two months) (co-operating in ESRTW)

The worker suffered a shoulder and neck injury in July 1999. The Board granted the worker an 11% NEL award for permanent shoulder impairment. The worker returned to modified work with the employer until the employer went out of business in 2006. The worker appealed a decision of the Appeals Resolution Officer denying redetermination of the NEL award due to significant deterioration and denying LOE benefits from March 2006 to November 2008. On the evidence, the worker was entitled to redetermination of the NEL award, with a permanent worsening date in October 2009. Prior to November 2002, LOE benefits could only be reviewed more than 72 months after the date of the injury in very limited circumstances. As of November 2002, the WSIA was amended to include additional circumstances in which benefits could be reviewed, including s. 44(2.1)(b) for provision of an LMR plan that was not completed when the 72-month period expired and s. 44(2.1)(c) for significant deterioration of the compensable condition that results in redetermination of the degree of permanent impairment. As of July 2007, the WSIA was amended again to include further additional circumstances, including s. 44(2.1)(g) for co-operation in ESRTW when the 72-month period expired. The final LOE review would have been in July 2005. At that time, the worker was employed with the employer in modified work with no wage loss. The worker was requesting LOE benefits from March 2006 to November 2008. This was after expiry of the 72-month period and straddled the time in which different review provisions apply. The Panel found that the worker suffered a significant deterioration of his shoulder condition but the permanent worsening date was in October 2009, which was after the period of time in question. Therefore, the worker was not entitled to review of LOE benefits prior to July 2007 under s. 44(2.1)(c). Further, there was no LMR plan in place at the time of the 72-month review, so that the worker was not entitled to review of LOE benefits under s. 44(2.1)(b). Thus, the Panel concluded that the worker was not entitled to LOE benefits from March 2006 to July 2007. As of July 2007, the worker came within the exception in s. 44(2.1)(b) for co-operating in ESRTW at the time when the 72-month period expired. The employer stopped providing modified work in March 2006 when it closed but the worker and employer were co-operating in ESRTW by provision of modified work when the 72-month period expired in July 2005. Section 44(2.10) provides that s. 44(2.1)(g) applies with respect to a worker if the 72-month period expired before July 2007. The Panel concluded that the worker was entitled to full LOE benefits from July 2007 to November 2008. The appeal was allowed in part.