Decision Nº 1736/21 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023
| Judge | R. McCutcheon: Chair D. Thomson: Member Representative of Employers M. Tzaferis: Member Representative of Workers |
| Judgment Date | 15 September 2023 |
| Neutral Citation | 2023 ONWSIAT 1422 |
| Judgement Number | 1736/21 |
| Hearing Date | 16 December 2022 |
| Issuer | Workplace Safety and Insurance Appeals Tribunal of Ontario |
--SUMMARY--
|
Decision No. 1736/21 |
15-Sep-2023 |
R.McCutcheon - D.Thomson - M.Tzaferis |
-
Availability for employment (relocation)
-
Board policies (applicability of Board policy)
-
Loss of earnings {LOE} (duration)
-
Procedure (leading case strategy)
-
Statutory interpretation (principles of) (large and liberal interpretation)
-
Suitable employment (factors other than physical capability)
-
Labour market re-entry {LMR} (eligibility)
-
Loss of earnings {LOE} (review) (final)
-
Suitable occupation
-
Available employment (local labour market)
-
Farming (foreign seasonal worker)
The Panel heard this appeal together with three other appeals which raised similar issues with respect to benefits received by workers who are injured while employed in Ontario through the Seasonal Agricultural Worker Program (SAWP). The injured workers currently reside in Jamaica. The primary issues in this appeal related to their entitlement to long-term loss of earnings (LOE) benefits and labour market re-entry services under sections 42 and 43 of the WSIA. The main issue to decide was the application of the SAWP Adjudicative Advice Document, which limits the long-term benefits for permanently injured SAWP workers to 12 weeks of LOE benefits and deems them able to work in the Ontario labour market.
The Panel concluded that the long-term LOE benefits for migrant agricultural workers ought to be based upon their ability to earn in their actual local/regional labour market. It was not appropriate to limit their entitlement to long-term LOE benefits to 12 weeks in every case without regard for their individual circumstances. Further, migrant agricultural workers are entitled to LMR assessments and services under section 42 of the WSIA in accordance with their actual labour market. The Panel declined to apply the non-binding SAWP Adjudicative Advice Document to these appeals because it concluded that it was not consistent with the language and purposes of the WSIA, including sections 1, 42 and 43, or binding Board policies.
Upon consideration of the relevant text, context, and purpose of the WSIA, the Panel found that there was no basis in the statute or binding policy to limit the LOE benefits of injured seasonal agricultural workers to 12 weeks of long-term LOE benefits without consideration of their actual circumstances, including their labour market in their home countries. The relevant provisions of the WSIA demonstrate that, where the Legislature intended to carve out unique rules for certain types of employment, or exclude certain employment from coverage, it has done so explicitly. The Panel examined the relevant Board policies and concluded that they did not restrict the labour market for calculating LOE benefits to Ontario.
The Panel found that the existence of systemic racism and the precarious employment status of SAWP workers provides relevant context for the interpretation of the evidence. The Panel found that the features of the SAWP program and the precarious and vulnerable employment status of SAWP workers provide relevant context for evaluating whether testimony is credible.
The issue under appeal was the worker's entitlement to full LOE benefits from June 11, 2018. This required consideration of whether "Other Service Occupations", NOC 6742, was suitable for him, and if not, what level of LOE benefits was appropriate from June 11, 2018. The worker was previously diagnosed with a lumbar strain/sprain. The WSIB rated the worker's non-economic loss (NEL) award at 7% in January 2019. In March 2019, the WSIB granted temporary entitlement to psychotraumatic disability for the diagnosis of Post-Traumatic Stress Disorder (PTSD) and covered the cost of a period of psychiatric treatment.
The appeal was allowed.
The Panel found that the SO was not suitable for the worker and the worker was entitled to full LOE benefits from June 11, 2018 to the date of this decision, based on the worker's actual labour market. The Panel found that the worker made reasonable efforts to seek treatment and improve his employability, including active treatment for his physical and psychological conditions, and no suitable employment was offered to the worker. The final LOE review date in this case was September 14, 2023, and the worker's permanent entitlement for psychotraumatic disability had not been fully adjudicated. In these circumstances, the Panel directed that the WSIB conduct a Work Transition (WT)/Labour Market Re-Entry (LMR) Assessment that takes into account the worker's actual labour market, after which his final LOE benefit will be determined by the Board, subject to the usual rights of appeal.
70 Pages
|
References: |
Act Citation
Other Case Reference
|
To continue reading
Request your trial