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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 1905 16 R2
6/21/2019
D. Corbett

  • Reconsideration (consideration of evidence)

The worker applied for reconsideration of Decision No. 1905/16.
The Tribunal Chair noted that this was the worker's second application for reconsideration of Decision No. 1905/16. In the first application, he was self-represented. In this application, he had a new representative and a number of grounds were put forward in support of the application that were not advanced in the first application. Also included with this application was a transcript of the original hearing.
Decision No. 1905/16 found that the worker did not have entitlement for massage therapy and that she was not entitled to full LOE benefits because she was able to perform work offered by the employer.
In finding that it was unreasonable for the worker to refuse the modified work offered by the employer without even attempting the job, the hearing panel relied on a written job description without explanation of why the written description was preferred over the worker's testimony. The worker's testimony was that the job was not modified and that the only accommodation made by the employer was to offer part-time hours. However, hours were part-time only in the sense that the worker would not have to work as many shifts per week but all shifts were 12 hours long. The worker was unable to work that length of time due to her compensable injury.
The failure to explain why the worker's evidence was not accepted with respect to the critical issue of job duties and length of shift was a deficiency that would cause a reasonable person to question whether the decision was correctly decided.
The transcript indicated that the worker was interrupted at key points during her testimony while attempting to answer questions put to her. The Chair was concerned about the quality of the hearing provided to the worker. This might not, in itself, be grounds for reconsideration but, considering also the valid concerns regarding the job, the Chair concluded that it was advisable to reconsider Decision No. 1905/16 on all issues.