An association representative for an injured worker complained that the WSIB had unfairly initiated return-to-work efforts when the period for reviewing his loss of earnings benefits had already expired.

The worker, a first responder, was seriously injured in 2014 when an explosion caused the wall of a building to collapse on him. He was found without vital signs and sustained more than 40 broken bones and multiple internal injuries. He had to undergo more than 25 surgeries and was left with vision and hearing problems and scarring to his face. The WSIB also allowed entitlement for post-traumatic stress disorder.

The worker was receiving loss of earnings benefits and had been granted a 34% non-economic loss award in recognition of his permanent impairments.
In accordance with the Workplace Safety and Insurance Act, WSIB policy requires a final review of a worker’s loss of earnings benefits after six years, after which the benefits can no longer be reviewed. The Act allows an extension of up to two years if the worker is still receiving health care treatment. The review period can also be extended if the worker is engaged in a work transition program.

After the final review, the Act only allows the WSIB to reopen the case and review loss of earnings benefits in certain exceptional circumstances. One exception is if the worker suffers a significant deterioration to their condition.

In this case, the worker was still receiving health care treatment at the six-year mark in 2020, so the final review was deferred by two years. However, the WSIB neglected to conduct the final review in 2022.

In February 2023, the WSIB increased the worker’s non-economic loss award by a further 3% to account for his permanent psychological impairment.

In September 2023, the WSIB engaged the worker and the employer in return-to-work planning. Both parties objected.

The employer pointed out that the worker had already tried to return to work three times, without success. They said the WSIB had not provided any information to show that there had been a substantial change in the worker’s medical condition.

The worker’s representative contended that the WSIB was not allowed to begin the return-to-work process because it should have already completed the final review of loss of earnings benefits.
In response, the WSIB issued a decision letter in November 2023 retroactively conducting the final review that should have taken place 18 months earlier. In the same letter, the WSIB explained that the worsening of the worker’s condition allowed it to reopen its review of his loss of earnings benefits and begin exploring return-to-work opportunities.

The representative complained to the Commission that it was unfair for the WSIB to use a worsening of the worker’s condition to justify returning him to work at this stage of the claim.
We made inquiries to clarify a few points about the legislative basis for how the claim was being adjudicated. The WSIB said it should have completed the final benefit review in 2022 but it ultimately did not make a difference, because the subsequent worsening in the worker’s condition permitted a further review of his benefits.

We still had outstanding questions, so we escalated our inquiries to a senior director. He reviewed the claim holistically and determined that the worker was unlikely to be successful in any return to work. He noted that the worker only had three years until his retirement age and that medical information from 2022, when the final benefit review should have been conducted, indicated that the worker was completely disabled. In the circumstances, the director determined it was not appropriate to review the worker’s loss of earnings benefits.