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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 1568 16
6/30/2016
K. Jepson

  • Disability (length of recovery)
  • Medical treatment (cortisone injections)
  • Health care (maintenance treatment)
  • Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)

The worker suffered a right shoulder disablement in June 2005, for which she was granted a 4% NEL award. In 2011, the worker's treating physician began giving the worker periodic cortisone injections. The Board originally denied entitlement for the injections, but the Appeals Resolution Officer decided in September 2014, that the injections were allowable as maintenance health care. The ARO authorized the injection for one more year (until September 2015), after which a medical review would be conducted to determine ongoing entitlement. The worker took seven days off work after each injection but the ARO determined that the worker was entitled only to two days of LOE benefits for recovery from each injection. The worker appealed a decision of the Appeals Resolution Officer limiting ongoing entitlement for one year and limiting LOE benefits to two days after each injection. If a worker requires two days (or seven days) off for recovery after an injection, that does not automatically entitle the worker to two (or seven) days of LOE benefits. For example, if a worker received an injection on Friday but was not scheduled to work again until Monday, there would be no loss of earnings based on two days off and only five days loss of earnings based on seven days off. There may also be other circumstances that affect whether a worker actually suffers a loss of earnings during recovery. Therefore, recovery time should not be prospectively adjudicated. The ARO granted entitlement for the injections and two days of LOE benefits for each injection during the period from September 2014 to 2015. This was after the final LOE review. The Vice-Chair was satisfied that the ARO implicitly found that the worker suffered a significant temporary deterioration of her condition due to each injection, in accordance with s. 44(2.1)(f) of the WSIA, thus warranting payment of LOE benefits. Based on the medical evidence, the Vice-Chair found that the worker required seven days off for recovery after each injection. Entitlement for maintenance treatment is by its nature a party prospective determination. The worker's entitlement to maintenance health care in the form of cortisone injections is an ongoing entitlement. However, that entitlement is subject to review for material change in circumstances. The appeal was allowed in part.