Highlights of Noteworthy Decisions

Decision 1861 14
M. Crystal
  • Election (withdrawal)
  • Loss of earnings {LOE} (older worker)
  • Work transition plan (older worker)
  • Board Directives and Guidelines (work transition plan) (older worker)

A 60-year-old worker suffered a low back injury in May 2009, for which she was granted a 13% NEL award. The worker appealed a decision of the Appeals Resolution Officer finding that the worker was not entitled to rescind her decision to accept an older worker self-directed work transition plan.

The worker met with the Board and the employer in December 2010. The worker's representative was not at that meeting. After that, there were a number of other meetings but it appears that the worker's representative was not given notice of these meetings. In March 2011, the worker agreed to the older worker no-review option under s. 44(3) of the WSIA. When the worker's representative learned that the worker had agreed to the no-review option, she contacted the Board to request reconsideration.
The Vice-Chair noted that Board Operational Policy Manual, Document No. 18-03-04, requires decision-makers to advise the worker of the no-review option by letter. This is a mandatory requirement of the policy. In this case, it appears that a notice letter was not sent to the worker or anyone on behalf of the worker. The Vice-Chair also noted that the worker was unsophisticated and did not appear to understand the implications of accepting the no-review option. The worker contacted her representative the day after signing the agreement to the no-review option. The representative had not been advised of the agreement until after it was signed.
In the circumstances, the Vice-Chair concluded that the worker's irrevocable direction to accept the no-review option was not an informed direction and was not valid. The Vice-Chair directed the Board to determine the worker's entitlement to work transition services and LOE benefits beyond March 2011 on the basis that she has not agreed to the no-review option.
The appeal was allowed.