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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 2206 18
10/1/2018
E. Smith

  • Loss of earnings {LOE} (older worker)
  • Board Directives and Guidelines (work transition plan) (older worker)

The worker suffered a right shoulder injury in September 2009. In Decision No. 2142/14, the Tribunal found that the worker had a permanent right shoulder impairment. The Board then granted the worker a 7.5% NEL award.
The worker now appealed a decision of the Appeals Resolution Officer regarding the amount the worker could earn in the SO and regarding entitlement of the worker to elect the older worker option.
The SO of receptionist was appropriate for the worker. The worker would be capable of working 32 hours per week at minimum wage.
According to Board Operational Policy Manual, Document No. 18-03-04, on older worker option, a worker who is 55 years or older when the Board determines that the worker is entitled to LOE benefits, and who requires a WT plan consisting of vocational skills training, has the option of participating in a WT plan aimed at achieving the SO or choosing a 12-month transition plan focused on self-directed work reintegration to achieve the SO. When the self-directed option is selected, the worker will be paid full benefits for a year, following which LOE benefits will be recalculated based on deemed earnings in the SO.
The Vice-Chair noted that the older worker option is only offered when a worker is 55 years of age or older and elects the older worker option in lieu of retraining that would otherwise have been required.
In this case, the Board had considered some training for the worker but decided on the direct entry option. The Vice-Chair agreed with the Board that retraining was not appropriate for the worker. Retraining would only have been appropriate if it were expected to increase the worker's earnings above minimum wage or to have a significant impact on her employability.
If the retraining would have been effective to assist the worker to earn wages higher than the minimum wage, the Vice-Chair would have considered the retraining to be appropriate and required. Then, the worker would have been entitled to the older worker option as an alternative to the retraining.
In this case, the evidence indicated that the entry-level wages for a receptionist would have been at minimum wage, even after retraining, but would increase to mid-range after an initial period. However, on the evidence, the worker was unlikely to have been successful in retraining, and accordingly, even with retraining would likely only be able to earn minimum wage. She would not be a candidate of receptionist jobs for which a higher level of typing speed or complex computer skills was required.
Since retraining would not increase the worker's earnings or make a substantial difference to her employability, it would not have been reasonable for the Board to offer retraining. The older worker option only applies when retraining is required to achieve the earnings proposed by a plan. Therefore, the worker was not entitled to the older worker option in this case.
The appeal was allowed in part.