Highlights of Noteworthy Decisions

Decision 659 21
20/05/2021
G. Dee - C. Sacco - M. Ferrari
  • Dependency benefits (spouse with children)
  • Labour market re-entry {LMR} (workplace modifications)

The worker was a volunteer firefighter. He was diagnosed with colorectal cancer in 2016 when he was 43 years old. The WSIB accepted that the worker had entitlement for his condition. The worker died from his cancer in August 2017.

At the time of his death the worker and his wife (the appellant) had four children aged 15, 11, 8 and 6. Prior to her husband's death, the appellant stopped working as a Registered Massage Therapist (RMT) in a chiropractor's office and started working as an RMT from home in order that she could attend to the needs of her husband and children.
In this appeal the appellant was seeking approval for home renovations as part of a Labour Market Re-entry plan for the purpose of enhancing her ability to work from home as a Registered Massage Therapist.
Section 48(9) of the Act provides that upon request, the Board shall provide a spouse with a labour market re-entry assessment. Section 48(10) provides that subsections 42(2) to (8) apply with necessary modifications with respect to the labour market re-entry plan.
The provisions in section 48 of the WSIA contain no guidance with respect to what the goals of an LMR assessment or plan are to be for a surviving spouse. The Panel noted that subsection 42(2) identified the goal of an LMR plan as enabling the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury. OPM Document No. 20-02-04 states that the Board provides a surviving spouse with a work transition (WT) plan if, based on the WT assessment, the decision-maker determines that a plan is necessary to enable the spouse's entry or re-entry into the labour market in the identified suitable occupation.
Read restrictively, the policy can be interpreted as indicating that LMR services will only be provided in circumstances where they are necessary to enable a spouse to enter or re-enter the workforce and not in any other circumstances. Read permissively, the policy can be interpreted as indicating that LMR services will be provided in order to enable a spouse to enter or re-enter the workforce but without limiting the provision of services in other additional circumstances that are consistent with the provisions of the WSIA that govern LMR services for surviving spouses.
The Panel preferred the more permissive approach. First, the policy itself does not state that LMR services will not be provided to surviving spouses in any other circumstances. Second, to read the policy as only providing LMR services to surviving spouses where it is necessary to do so to support an entry or re-entry into the workforce but without regard for the surviving spouse's ability to earn wages to reduce or eliminate the loss of earnings that may result from the injury, would be inconsistent with the requirements of subsection 42(2) of the WSIA. Third, the policy document cannot have anticipated all of the potential circumstances that may exist for surviving spouses and likely did not have in mind the specific circumstances of the appellant when it was created. In these circumstances, it was appropriate to interpret the policy in keeping with the merits and justice provisions of subsection 124(1) of the WSIA.
The Panel found that the need for home modifications was strongly and directly linked to the worker's illness and death and its effect on the appellant's ability to work and earn an income. The appellant's relocation of her business to her home was directly related to her need to look after her husband in his illness. The appellant's business remained in her house due to her increased need to be able to respond to the needs of her children as a result of her loss of her husband as a father and co-parent and to the increased needs of the children as a result of that loss.
The worker's surviving spouse was therefore granted entitlement for the home modifications to allow her to operate as an RMT at home.
The appeal was allowed.