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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 2795 16
1/6/2017
J. Smith

  • Health care (attendance allowance) (arrears)

The worker suffered a back injury in 1980. The Board granted a 20% pension for the low back disability, increased to 25% in 1992, to 40% in 1998 and to 60% in 2007 with arrears to 2004. In addition, the Board granted a 5% pension for erectile dysfunction, with arrears to 1995, and a 20% pension for psychotraumatic disability, with an increase to 25% retroactive to the date of surgery in 2006. In Decision No. 1215/11, the Tribunal found that the worker also had entitlement for deep vein thrombosis. The Board then granted an additional 5% pension retroactive to 1998. The total pension was 95%. In Decision No. 410/14, the Tribunal found that the worker was entitled to an attendance allowance and a personal care allowance, even though the total pension was not 100%. The Board then granted the allowances retroactive to the surgery in 2006. The worker now appealed a decision of the Appeals Resolution Officer regarding the retroactivity date for the allowances. The Vice-Chair had to determine the date by which the worker was considered to fit the exceptional circumstances found in Decision No. 410/14 that warranted the finding of entitlement to the allowances, despite falling below the 100% pension threshold set out in Board policy. The Vice-Chair interpreted Decision No. 410/14 to indicate that it was the combination of failed surgeries and resulting low back symptomatology, impotence, panic attacks, anxiety and depression, suicide attempts and resulting need for constant supervision, incontinence, fears of being alone and dependence on his wife for almost complete personal care, which led to the conclusion that the allowances were warranted. The worker had a 50% pension by 1995. By 1988, the worker had a 70% pension. In 2004, that was increased to 90%. The final increase to 95% was in 2006. It is important to consider the worker's level of functioning during each period. After reviewing the level of functioning, the Vice-Chair found that, from 1998 to 2004, when the worker had a 70% pension, he had not yet reached the level of serious disability described in Decision No. 410/14 upon which the allowances were based. He appeared to remain self-sufficient in regard to activities of daily living, and issues of incontinence had not yet emerged. The worker underwent surgery in October 2005, as well as July 2006. The Vice-Chair found that it was after the surgery in October 2005 that the level of disability changed significantly and encompassed the features noted in Decision No. 410/14. The worker was entitled to the personal care allowance and independent living allowance retroactive to October 2005. The appeal was allowed in part.