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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 2666 18
9/19/2018
J. Josefo

  • Board policies (applicability of Board policy)
  • Loss of earnings {LOE} (review) (after seventy-two months) (further review)
  • Board Directives and Guidelines (LOE) (review after seventy-two months) (further review)

The worker suffered a neck and upper back injury in January 1998, for which the Board granted the worker a 16% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after May 2005.
The worker obtained work with a different employer. At the final LOE review in 2004, the Board based LOE benefits on the worker's actual earnings with the new employer. On redetermination of the NEL award in February 2005 due to significant deterioration, the Board increased the NEL award to 21%. In May 2005, the worker returned to work with the accident employer, restoring her pre-injury earnings. In a decision dated October 5, 2005, the Board reviewed LOE benefits and concluded that the worker was not entitled to LOE benefits as she was no longer experiencing a wage loss.
At the end of November 2005, the worker was laid off by the accident employer. In the subsequent period of time, the Board made three more adjustments to LOE benefits. In a decision dated May 2, 2012, a Board Manager found that the decisions to make the additional adjustments to LOE benefits were not in accordance with Board policy. The Manager reversed those decisions and confirmed the decision of October 5, 2005, that the worker no longer had a wage loss and was no longer entitled to LOE benefits.
The worker appealed a decision of the Appeals Resolution Officer confirming the decision of the Manager.
The worker suffered a significant deterioration of her condition resulting in a redetermination of the degree of permanent impairment, within s. 44(2.1)(c) of the WSIA, thereby allowing review of LOE benefits after the final 72-month review. Section 44(2.4) allows the review of LOE benefits within the 24 months after the date of the redetermination of the degree of permanent impairment.
Board Operational Policy, Document No. 18-03-06, on final LOE benefits review, was applicable. However, there were a number of versions of this policy. A version published on July 3, 2007, applied to decisions made with respect to wage loss entitlements on or after July 1, 2007. Another version was published on December 1, 2010, which was applicable to decisions made on or after December 1, 2010, and another version was published on July 15, 2011, which was applicable to decisions made with respect to wage loss entitlements on or after July 15, 2011.
The latter two versions of the policy have provisions for further review of the LOE benefit 24 months from the NEL processing date, based on the facts of the case. This portion of the policy was not in the July 2007 version.
The decision of the Manager was made on May 2, 2012. Thus, this decision was made both after December 2010 and July 2011. Therefore, the wording in either of those two versions, regarding further review of the LOE benefit, was applicable. The Manager and the ARO found that the policy did not allow for more than one review during the 24-month window, but they were interpreting the July 2007 version of the policy.
The Vice-Chair found that the applicable policy (December 2010 or July 2011) did not limit the Board to one review during the 24-month period. This allows the Board an opportunity to review all the information and consider the worker's position so that, ultimately, the Board can make a fully informed decision, or decisions. If circumstances change during the 24 months, the Board had the ability to react and address the change with further decision-making.
This conclusion will benefit the worker in this case. In other cases, it could lead to a reduction of LOE benefits, depending on what happens during the full 24-month period.
The appeal was allowed. The additional decisions adjusting the worker's LOE benefits were restored.