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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 2086 18
12/18/2018
N. Perryman - V. Phillips - D. Broadbent

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

The worker suffered a left knee injury in November 2007, for which the Board granted the worker a 16% NEL award. The worker appealed regarding the quantum of the award, entitlement for secondary conditions, appropriateness of the SO identified by the Board, quantum of LOE benefits and entitlement to LOE benefits after compensable knee surgery in April 2016.
The Panel increased the NEL award to 19%. The worker did not have entitlement for secondary conditions. The SO was appropriate for the worker but only on a part-time basis.
The worker was not working at the time of the surgery in 2016 and had not been looking for work. The worker relied on Decisions No. 3131/16 and 1650/17I that the WSIA requires a comparison of the post-injury earning capacity with the pre-injury earnings, so that earning capacity was diminished in the period following the surgery even though the worker may have withdrawn from the work force.
The Panel found that Decisions No. 3131/16 and 1650/17I were not persuasive authority in analyzing entitlement to LOE benefits in this appeal. The approach in those decisions was inconsistent with Board policy applicable to the appeal and to the interpretation of s. 43 of the WSIA that was previously adopted in Tribunal jurisprudence. Those decisions represent a marked departure from Tribunal jurisprudence that was not adequately addressed in either decision.
In this case, the worker suffered a significant temporary deterioration in his condition, thus allowing review of LOE benefits after the 72-month lock-in date. Board Operational Policy Manual, Document No. 15-02-05, on recurrences, applied directly to the circumstances of this appeal. The concept of earning capacity referred to in Decision No. 3131/16 does not appear in the WSIA or in the Board policy. Section 43(1) provides entitlement for a worker who has a loss of earnings as a result of an injury. Document No. 15-02-05 provides entitlement for a worker who experiences an actual loss of earnings due to a recurrence. Under the policy, a worker's actual loss of earnings is the only relevant consideration in reference to the worker's earnings, not his earning capacity.
Decision No. 3131/16 did not address the effect of the Board policy. Further, it was not consistent with a previous line of Tribunal jurisprudence, which took a different approach to LOE benefits for workers that are not currently in the work force. Decision No. 3131/16 did not consider this inconsistency and provide reasons for departing from the previous decisions.
The Panel concluded that the worker did not have an actual loss of earnings at the time of the surgery. The worker was not entitled to full LOE benefits during the recovery period.
The appeal was allowed in part.