- Medical report (payment for)
- Loss of earnings {LOE} (employability)
The worker sought an increase in his Loss of Earnings (LOE) benefits from February 17, 2023 until age 65. The WSIB had did not conduct a psycho-vocational assessment of the worker prior to determining that he was capable of employment as a retail salesperson. The ARO dismissed the findings of the vocational assessment arranged by the worker's representative based on methodological errors.
The Vice-Chair allowed the appeal. The worker was entitled to full LOE benefits from February 17, 2023 until September 26, 2024.The Vice-Chair found that it was not a methodological error to consider all of the worker's circumstances when considering a worker's employability. It is in fact a methodological error to instead focus solely on the nature of the impairment in order to determine the extent of the disability that a worker experiences as a result of an injury. A NEL rating, which is at best a means of estimating the extent of an impairment, cannot be used to determine the extent of an individual's disability that results from an injury.Further, it was also not a methodological error to conclude that jobs that primarily involve sitting or primarily involve standing are inappropriate for a worker with time limits on sitting or standing. The fact that a job primarily involves either sitting or standing is an indication of the likely ability to switch postures. It is also the case that breaks, while valuable in extending the total amount of time an individual may be seated or may stand during a shift, are not always completely restorative and the cumulative amount of time sitting or standing during a shift may still be excessive despite the ability to take breaks. The worker's representative requested that the Tribunal reimburse the costs of the vocational rehabilitation assessment. The Tribunal's Practice Direction on Fees and Expenses states as follows: "3.10 A party who files an expert report pays for the report. This is except when it is requested by the WSIAT. A party who calls an expert as a witness pays the full fee of the expert. In exceptional circumstances, the WSIAT will pay the costs of an expert witness for a worker under the approved schedule of rates."The Vice-Chair found that exceptional circumstances did exist. In particular, the WSIB did not conduct a formal Labour Market Re-entry Assessment of the worker as is required by section 42 of the WSIA. The availability of such an assessment report when determining the employability of the worker is also highly desirable. The worker's decision to seek an assessment report in the absence of a WSIB sponsored assessment report was therefore reasonable. The choice of assessors to conduct the examination were also reasonable and the Vice-Chair referred to and relied upon the report in arriving at this decision.