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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 901 16
4/18/2016
B. Kalvin

  • Board Directives and Guidelines (cooperation) (notice)
  • Permanent impairment {NEL} (redetermination) (significant deterioration)
  • Loss of earnings {LOE} (review) (final)
  • Board Directives and Guidelines (LOE) (worker not earning at time of determination)

The worker suffered a compensable injury in 2006. She developed fibromyalgia, for which the Board granted a 25% NEL award. The Board identified an SO as a receptionist. The worker completed the training part of the work transition program but did not complete the work placement part of the program. She never returned to work. In 2008, the Board based LOE benefits on deemed entry-level earnings in the SO. At the final LOE review in 2012, the Board based LOE benefits on deemed earnings of a fully experienced worker in the SO, which was double that of the entry level earnings. The worker appealed a decision of the Appeals Resolution Officer regarding the use of the earnings of a fully experienced worker and denying a redetermination of the NEL award. Board Operational Policy Manual, Document No. 18-03-06, regarding final LOE review, provides that wages of an experienced worker in the SO are used if the worker has never returned to work despite being able to do so and has chosen not to co-operate in work re-integration obligations. Thus, in order to use the deemed wages of an experienced worker for determining the final LOE calculation, it must be found that the worker was not co-operating in her return-to-work obligations. Document No. 19-02-02, on responsibilities of the workplace parties in work re-integration, provides that, in cases where the Board is considering making a finding of non-co-operation, the Board first warns the worker about the possibility and the possible penalty, verbally and, where possible, in writing. The ARO stated that the worker voluntarily removed herself from the work transition program prior to completion, which would be considered non-co-operation. However, the Vice-Chair noted that neither in conversations with the Board in 2001 nor in an LOE review in 2011 was the worker warned that she was not co-operating. In 2011, the Board indicated that LOE benefits at the final LOE review might change minimally. The worker was not given written warning that she was not co-operating and that it would affect the final LOE review the following year. In the circumstances, the Vice-Chair found that the worker was entitled to LOE benefits at the final review based on entry-level wages. Evidence did not establish a significant deterioration of the worker's condition that would warrant redetermination of the NEL award. The appeal was allowed in part.