- Loss of earnings {LOE} (level of benefits)
- Suitable occupation
- Farming (foreign seasonal worker)
The worker had been employed through the federal government's Seasonal Agricultural Workers Program (SAWP) for the employer, a produce and storage company, as a migrant worker for about five years on a seasonal basis. In March 2018, the worker was granted a 9% Non-Economic Loss (NEL) award for mechanical low back pain and aggravation of underlying degenerative lumbar spine. Since the fall of 2013, the worker had remained in Jamaica and lives in a rural area. He has not returned to any type of employment. The issues on appeal were whether the SO of Cashier (NOC 6611) was suitable and whether the worker has entitlement to LOE benefits beyond January 21, 2014.
The Panel allowed the appeal.Decision No. 1171/20 is the leading case on entitlement to benefits and services under the WSIA for migrant workers. The Panel reached the following conclusions in Decision No. 1171/20: a) SAWP workers injured in Ontario are entitled to a labour market re-entry assessment under section 42 of the WSIA that takes into account their actual labour market, and determines their entitlement to a labour market re-entry plan based upon their actual labour market; and, b) SAWP workers injured in Ontario are entitled to a determination of their loss of earnings (LOE) benefits under section 43 of the WSIA based upon their ability to earn income in employment that is suitable and available to them in their actual local labour market. The worker possesses the equivalent of a Grade 12 high school education. He has no certificates or apprenticeships. The worker testified that he and his parents raise chickens for their own consumption and do not sell them at a local market. With respect to the worker's transferable skills, the Panel found that his experience was not sufficient to qualify him to work as a cashier without some training between 2013 and 2019. The worker also lives in a rural and isolated area. The Panel noted that the worker, who did not receive any WT training, did not have the skills to operate a cash register, and process money and credit card payments, and found that weighing produce and bulk foods was likely contrary to his physical restrictions. The evidence indicated that the SO of Cashier was not suitable for the worker during the time period from January 2014 to September 2019. The worker had entitlement to full LOE benefits from January 21, 2014 to September 12, 2019.