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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 1900 18
11/28/2018
J. Dimovski

  • Loss of earnings {LOE} (wage loss)
  • Loss of earnings {LOE} (employment status at time of compensable surgery)

The worker suffered a hand injury in June 1998, for which the Board granted the worker a 6% NEL award. Later, the Board extended entitlement to the right shoulder and the left shoulder and also granted entitlement for psychotraumatic disability, resulting in a total combined 46% NEL award. In Decision No. 823/05, the Tribunal found that the worker was not totally incapable of performing work. In Decision No. 145/07, the Tribunal agreed with the Board that the worker had abandoned suitable employment and that he was not entitled to full LOE benefits after termination of his employment.
In Decision No. 823/05, the Tribunal found that the worker was capable of performing suitable modified work offered by the employer on a part-time basis. At the final review, effective June 2004, the Board granted partial LOE benefits on that basis. In Decision No. 145/07, the Tribunal found that the worker had abandoned suitable employment prior to the final review. In 2012, the Board found that the worker had sustained a temporary deterioration of his psychotraumatic disability warranting treating in a function restoration program (FRP).
The worker now appealed a decision of the Appeals Resolution Officer denying full LOE during the worker's participation in the FRP.
The focus of the analysis turned on whether the worker was entitled to LOE benefits during this period of deterioration in 2012 and 2013, despite the worker having abandoned suitable employment and considering himself as totally disabled and unable to work since 2004.
The worker submitted that previous abandonment of employment had no impact on the question of LOE entitlement during the deterioration subsequent to the final LOE review, as he would have been unable to perform the suitable employment during the period of deterioration. The worker relied on Decision No. 3131/16.
Decision No. 3131/16 states that the starting point is that, at the time of the compensable deterioration, the worker had a prima facie actual loss of earnings. The fact that the worker was not earning any income at the time did not mean that he had no loss of earnings; rather, he had an ongoing full loss of earnings relative to his pre-accident earnings. Pre-accident earnings remain the reference point for a loss of earnings resulting from the compensable accident. Decision No. 3131/16 has been adopted by numerous Tribunal decisions.
The Vice-Chair did not adopt the approach in Decision No. 3131/16, as he was of the view that the comparison point for determining entitlement to LOE benefits after the final LOE review is not pre-accident earning capacity, as this did not accord with the nature and purpose of benefit scheme in the WSIA, and that the approach in Decision No. 3131/16 was not elastic enough to permit the discretion contemplated by s. 44(2.1).
In order to restore a worker's pre-accident earnings (or a part of it), the Board engages in a process to return the worker to suitable available employment. There are instances when a worker mitigates the loss of earnings by the time of the final LOE review, resulting in no LOE payments. In other circumstances, even with retraining, the workplace injury prevents the worker from full restoring pre-accident earnings, resulting in full or partial LOE benefits at the final review.
The purpose of deeming a worker's post-accident earning capacity at 72 months is to quantify the difference between pre-accident earnings and post-accident earning capacity. The LOE benefits at the final review represent the pre-accident earning capacity lost as a result of the workplace injury. The intention and motivation of the worker are important factors in determining an LOE payment at the final review. It is anticipated that there will be circumstances in which a loss of earnings will not be related to the workplace injury, such as under-employment, perception of total disability, retirement for non-compensable reasons and total disability due to a subsequent non-compensable condition.
The approach in Decision No. 3131/16 is inflexible and does not reflect the purpose of compensating for actual loss of earnings related to an injury. It does not allow discretion to review the worker's circumstances, including motivation, at the time of a temporary deterioration. The Vice-Chair did not accept that such considerations are material at the final LOE review but irrelevant afterwards.
There may be circumstances when entitlement to further LOE benefits is warranted. There may be compensable reasons why the worker did not return to work after expiry of the 72-month review period. However, the Vice-Chair saw no reason to depart from the Tribunal's usual approach of significant contribution in determining causation.
Accordingly, the Vice-Chair did not follow the approach in Decision No. 3131/16. The Vice-Chair noted that his approach was consistent with the Tribunal's assessment of LOE benefits for workers who develop occupational diseases subsequent to retirement.
In this case, Decision No. 145/07 found that the worker had abandoned suitable employment with the employer prior to the final LOE review. There was no indication that the worker sought employment or considered himself anything other than totally disabled and retired from the work force. The worker was not entitled to further LOE benefits during participation in the FRP.
The appeal was dismissed.