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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 250 16
7/7/2016
J. Frenschkowski

  • 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 neck injury in 2009, for which he was granted a 27% NEL award. The worker selected the older worker option under s. 44(3) of the WSIA, with a one-year self-directed work transition plan with an SO of part clerk. After completion of the one-year plan, the Board based LOE benefits on median wages in the SO of $15.20 per hour. The worker appealed regarding using of the median wage. According to Board policy on the older worker option, after completion of the self-directed transition plan, LOE benefits are based on estimated earnings in the identified SO. Board policy on determining the earnings for an SO considers the relevant factors to determination of a wage in an SO to be whether the worker is learning new skills or entering a new field, or whether the worker is improving existing or transferable job skills. In the case of workers who are 55 years of age or older, the Vice-Chair found it reasonable also to take into account age and time remaining in the work force. A worker who is 55 to 57 years old and has transferable skills might be able to earn the median or even a high wage in the SO. A worker who is over 60 and entering a new field, even with some transferable skills, may not realistically be able to earn the median wage. The worker, having selected the older worker option, is expected to engage in some activities during the one-year self-directed transition program that would improve his employability in the SO. When a worker does not engage in such activity to improve employability, the failure to engage in such activity cannot be used to favour a lower wage. In this case, the worker was 64 years old at the completion of the transition program. He had one year remaining until retirement and was entering a new field of employment, although he did have some transferable skills. Considering these factors, it was not appropriate to base LOE benefits on the median wage. The worker was entitled to LOE benefits based on entry level wages of $11 per hour. The appeal was allowed.