- Suitable employment (suitable for worker's capabilities)
- Loss of earnings {LOE} (employability)
The issue under appeal was the quantum of LOE benefits from January 20, 2022 to November 21, 2022.
The Vice-Chair allowed the appeal.The Vice-Chair found that the worker was unable to work from January 20, 2022 to November 21, 2022 as a result of the workplace injury. The modified duties offered by the employer were not suitable, and the worker cooperated in his early and safe return to work. While there may have been other factors that contributed to his wage loss, the Vice-Chair was satisfied that the workplace injury was a significant contributing factor. Further, the Vice-Chair found that the modified duties would not have restored the worker's pre-injury earnings, to the greatest extent possible, as required by Policy 19-02-07.Additionally, the Vice-Chair accepted that the worker's loss of seniority, had he accepted the modified work, should also be considered in determining suitability. This is consistent with previous WSIAT cases, including Decision No. 352/05. The Vice-Chair found that the worker's refusal to accept modified work at a reduced wage of $11.00 per hour with loss of seniority of 17 years to be reasonable in the circumstances, when considering these other factors for the suitability of the job.The Vice-Chair recognized that the Tribunal cases relied on were older and considered an older policy and the factors within that policy. Nevertheless, the Vice-Chair found the overall approach to be persuasive and directly relevant to the decision. It was noted that similar wording is used in the current Policy 19-02-09, "Re-employment Obligations," under "Determining if an alternate job is comparable," which states "[w]hen determining if an alternate job offered is comparable to the pre-injury job, in addition to comparable earnings, the WSIB may consider a number of other factors including: …Rights and privileges associated with the position... bargaining unit status..."