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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 1266 18
3/2/2020
B. Pollock - C. Sacco - K. Hoskin

  • Loss of earnings {LOE} (older worker)
  • Work transition plan (suitability of program)
  • Work transition plan (older worker)

The worker was a millwright who suffered a hand injury in August 2011, for which the Board granted a 7% NEL award. In Decision No. 1266/18I, the Panel dealt with benefits in 2012 and 2013.
In this decision, the Panel considered whether the SO of production clerk was appropriate for the worker, whether the worker was entitled to the older worker option for WT services and whether the quantum of LOE benefits after March 2016 was correct.
On the evidence, the SO of production clerk was appropriate for the worker.
The worker submitted that he qualified for the older worker option, indicated a desire to elect that option but was not permitted that option by the Board. The worker further submitted that the older worker option would have provided the worker with the choice of participating in the WT plan to retrain in the identified SO or of engaging in a 12-month transition plan focused on self-directed work integration for any SO identified by the worker.
The worker met the pre-conditions for the older worker option in Board Operational Policy Manual, Document No. 18-03-04: he was over 55 years of age, received LOE benefits and required a WT plan to achieve employment in an SO. He co-operated with the WT plan but indicated that he wanted to elect the older worker option. The Panel concluded that the worker shoulder have been permitted to elect the older worker option.
However, the Panel found that, even if the worker had been permitted to exercise the older worker option to elect the 12-month transition program focused on self-directed work reintegration, there would have been no difference in the quantum of the worker's LOE entitlement. Once an SO is determined, it is that SO and only that SO that is the subject of the older worker option. In other words, once an SO is determined, an older worker has the option to participate in the WT plan aimed at achieving that SO or choosing a 12-month transition plan focused on self-directed work reintegration to achieve that SO. The older worker option does not allow a worker to choose self-directed work reintegration for any SO that the worker chooses. That is the intention of the language in the Board policy.
The Panel noted, however, that there is a difference as to the review of the LOE award and that, if the worker had chosen a self-directed plan, this would be in conjunction with an irrevocable no-review option of the LOE award.
In this case, the worker should have been permitted to elect between completing the vocational training contemplated by the WT plan for the SO of production clerk (approximately an 18-month program, during which he would receive full LOE benefits) or the 12-month self-directed work reintegration program for the SO of production clerk (during which he would receive full LOE benefits). Once the worker chooses a self-directed plan, it is in conjunction with an irrevocable no-review option of LOE benefits payable to age 65. The Panel noted that, if anything, the WT plan of the Board would result in the worker receiving more by way of LOE benefits than if he had been permitted to exercise the older worker option.
The SO of production clerk involved learning a new skill and entering a new field. The Board correctly based LOE benefits after March 2016 on updated entry-level wages for the SO. The worker was entitled to partial LOE benefits on that basis.
The appeal was allowed in part.