WSIAT Decision Search

• Loss of earnings {LOE} (employability)
• Suitable occupation
• Work transition plan (eligibility)

No Summary Available

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• Jurisdiction, Tribunal (Board implicitly dealt with issue)
• Loss of earnings {LOE} (employability)
• Suitable occupation

The Vice-Chair decided the following issues in this appeal: a) whether the SO of Customer Service Representative was suitable; and, b) what was the appropriate quantum of benefits payable to the worker after November 29, 2012.

The Vice-Chair allowed the appeal.

Given the combination of the effects of the worker's organic and psychotraumatic conditions, as well as his other personal and vocational characteristics, the SO of Customer Service Representative was unsuitable and the worker ought to have been considered essentially incapable of any employment from November 29, 2012.

The worker was entitled to full LOE benefits pursuant to section 43 (1) of the WSIA from November 29, 2012, to September 24, 2014, and effective the final LOE review date of September 24, 2014. This level of benefits remains in effect to age 65, subject only to review in future if one of the exceptions under section 44 (2.1) applies.

The Vice-Chair considered the worker's LOE benefits as of the final LOE review date of September 24, 2014, as a sequential issue to the issue of the worker's LOE benefits from November 29, 2012. This issue was at least implicitly addressed in the ARO's decision of April 15, 2013. Reviewing LOE as of September 24, 2014, also helped to avoid undesirable jurisdictional ping-pong (see Decision No. 1891/18IR), noting the finding that the worker was unemployable effective November 29, 2012, and the available evidence continued to demonstrate that he had remained unemployable as of the final review of September 24, 2014.

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• Experience rating (NEER) (retroactive adjustment)
• Preexisting condition (shoulder condition)
• Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

The worker was granted entitlement for a left shoulder condition. The issue under appeal was whether the employer was entitled to increased SIEF cost relief from 50% to 90%.

The Vice-Chair allowed the appeal, in part.

The accident involved a disablement injury arising from the performance of regular duties. There was no evidence that the worker's job duties were inherently unsafe or severely arduous, or that they exposed her to significant risk factors, such as dangerous environmental conditions. The accident was classified as minor in severity.

The worker's labral tear was a pre-existing condition. The medical reporting noted the existence of "severe grade 3 chondral damage of the weightbearing portion of the humeral head". The worker also had a hooked acromion, which was significant enough to require a removal of both the anterior and lateral hooks. The Vice-Chair agreed with the submission that "type II and type III acromion (i.e. hooked rather than flat acromion) are considered factors which contribute to impingement syndrome and have been recognized as pre-existing conditions for SIEF purposes by the WSIAT. The Vice-Chair found that the medical significance of the worker's pre-existing shoulder condition was moderate. The employer was entitled to an increase in SIEF cost relief to 75%.

However, the Vice-Chair was not satisfied the employer acted with due diligence in pursuing SIEF cost relief. The employer initially requested SIEF cost relief in March 2023, more than 2.5 years after the worker was granted a NEL award. Under the rescinded Policy 13-02-07, the NEER window would have originally been scheduled to close in April 2019. The employer did not request SIEF cost relief prior to the April 2019 NEER closure window set out in Policy 13-02-02 as the WSIAT Decision only granted initial entitlement in June 2019. However, the employer waited 2.5 years after the WSIB determined that the worker had a NEL award to request SIEF cost relief. Accordingly, the employer was not entitled to a retroactive adjustment in their NEER account.

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• Loss of earnings {LOE} (employability)
• Procedure (alternative dispute resolution) (early intervention)

No Summary Available

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• Preexisting condition (shoulder condition)
• Procedure (alternative dispute resolution) (early intervention)
• Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

No Summary Available

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• Reconsideration (error of law)

The worker requested a reconsideration of Decision No. 1429/24.

The Vice-Chair denied the reconsideration request as the Tribunal's threshold test was not met. The findings of the Panel in Decision No. 1429/24 were reasonable, in light of all of the evidence and the relevant law and policy.

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• Stress, mental (chronic)

No Summary Available

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• Preexisting condition (disc, degeneration) (lumbar)
• Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

No Summary Available

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• Concussion
• Permanent impairment {NEL}

No Summary Available

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• Future economic loss {FEL} (calculation)
• Travel expenses (medical examination)

The worker sought entitlement for travel expenses to attend an MRI examination and an increase in the amount of his Future Economic Loss (FEL) supplementary benefits dating from August 4, 2020.

The Vice-Chair denied the appeal.

The worker's request for reimbursement for the costs associated with attending the MRI examination was denied. The worker was sent for an MRI due to reasons that were not related in any substantial way to his compensable injuries. Entitlement to health care under section 32 of the WSIA is for health care that is "necessary, appropriate and sufficient as a result of the injury".

The Vice-Chair found no specific error had been identified in the manner in which the WSIB had escalated the worker's pre-injury earnings for the purpose of determining the quantum of the worker's FEL supplementary benefits. The worker's appeal on this issue was denied.

The Vice-Chair noted that, in addition to the rules governing cost-of-living escalations for FEL benefits being extraordinarily complex, changes in the rules and changes in the interpretation of the rules or indexing formulas can have major impacts not only on individual claims but also on the actuarial calculations that underlie the assessment of the health of the WSIB's balance sheet, as well as future liabilities.

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