Highlights of Noteworthy Decisions

Decision 1469 20
M. Keil
  • Jurisdiction, Tribunal (final decision of Board) (matter expressly conferred upon Tribunal)
  • Procedure (early resolution)
  • Suitable employment or business [SEB] (NOC)
  • Loss of earnings {LOE} (employability)

The worker's estate appealed an ARO decision dated December 2019 which confirmed the calculation of partial LOE benefits from the final review.

The worker's estate also wanted to appeal the issue of the suitability of the SO.
The ARO decision stated the quantum of the worker's LOE benefit at final review only would be considered, and that the issues of the worker's employability and the suitability of the SO were not properly before him. He further noted that these issues were the subject of another decision, dated June 28, 2019, and that the worker should have appealed this decision if he wished to pursue an appeal of those issues. The only decision on appeal at the ARO level was the Case Manager decision dated July 17, 2019, which similarly considered only the worker's LOE benefit at the final review. The Vice-Chair found that the letter of June 28, 2019 was not a formal decision with appeal rights. The letter, which was signed by the worker's Return to Work Specialist, outlined the SO, the completion of the worker's WT plan, and the availability of the SO. It did not include, however, the standard language regarding the worker's appeal rights and deadline to appeal. Furthermore, the letter explicitly stated that the worker's LOE benefits would be considered in a subsequent letter from the Case Manager.
The Case Manager decision of July 17, 2019 confirmed that the worker's LOE benefits would be reduced based on his ability to earn minimum wage working full time. It did not explicitly consider the worker's employability or outline the evidence supporting full time work, nor did it consider the suitability of the SO after the completion of the worker's WT plan. And while the Case Manager did note that the RTWS had confirmed that the worker had completed his WT plan, notably, she did not call the letter a decision, nor did she use any of the conclusions reached in her letter to support her decision.
Despite the ARO's assertion that the suitability of the SO and the worker's employability were not properly before him, the Vice-Chair found that the two issues were inextricably intertwined with the question of the worker's LOE benefits at final review (which date coincided with the completion of his WT plan). The worker had the right to appeal the WSIB's determination that he could work full time hours at the completion of this WT plan. Given the lack of appeal language in the RTWS letter, and the fact that his employability played a significant role in the determination of his LOE benefits at final review, it would be logical to conclude that any such appeal of his employability would fall under an appeal of the July 17, 2019 decision and, consequently, the ARO decision currently on appeal at the Tribunal.
The Vice-Chair found that she had jurisdiction over the issue of the suitability of the SO.
In the appeal, the Vice-Chair found that the SO of customer service representative was unsuitable and that the worker was unemployable as of the final review.
The worker's estate therefore was entitled to full LOE from the final review.
The appeal was allowed.