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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 3833 17
3/9/2018
J. Lang

  • Loss of earnings {LOE} (employability)
  • Jurisdiction, Tribunal (binding nature of determination) (previous Tribunal decision)

In Decision No. 2097/14, the Tribunal found that the worker was not entitled to LOE benefits from November 2010 to November 2013, as the employer had suitable modified work available. The work was not available after November 2013. Decision No. 2097/14 referred the matter back to the Board to determine entitlement to LOE benefits after November 2013. The Board then based LOE benefits after November 2013 on ability to work full-time in elemental service occupations.
The worker now appealed regarding the LOE benefits after November 2013.
In a preliminary matter, the Vice-Chair considered the worker's submission that Decision No. 2097/14 made findings of fact that are binding for this decision. Decision No. 2097/14 commented that the worker's employability in the general labour market was a very different question than modified work offered by the employer, and that evidence appeared insufficient to establish that the worker would be employable in the general labour market. The Vice-Chair found that those comments were obiter and were not binding for the adjudication of this appeal.
On the evidence, the worker was not totally prevented from performing any type of work. The SO of elementary service occupation was appropriate for the worker but he was only capable of working part-time. The worker was entitled to LOE benefits after November 2013 on that basis.
The appeal was allowed in part.