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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 167 18
5/18/2018
A. Patterson

  • Supplements, transitional provisions (benefit from rehabilitation) (cooperation)
  • Supplements, transitional provisions (benefit from rehabilitation) (earning capacity)
  • Supplements, transitional provisions (permanent)

The worker suffered neck, back and shoulder injuries in November 1989. The Board granted the worker a 15% pension for chronic pain disability. The worker appealed a decision of the Appeals Resolution Officer denying supplementary benefits under s. 147(4) of the pre-1997 Act, from October 1991.
The worker considered himself unemployable and did not co-operate with VR activity. If the worker had participated in the job search that the Board was recommending in October 1991, he likely would have found full-time work at minimum wage. His combined earning capacity (pension and minimum wage earnings) would have been about $310 per week, significantly below his pre-accident earnings of $400 per week.
The Vice-Chair agreed with Decision No. 85/97, that non-co-operation will only disqualify a worker from s. 147(4) supplementary benefits if it is likely that the worker's earning capacity would have increased to the extent contemplated by s. 147(2), had he co-operated. Under s. 147(2), the determination is whether a worker's earning capacity after VR would have approximated pre-accident earnings.
In this case, the worker's earning capacity after participating in VR would not have approximated his pre-accident earnings. Accordingly, the worker was entitled to s. 147(4) supplementary benefits. The appeal was allowed.