Reviewing the decision-making process

Ms. B was injured in 2009, at the age of 60. She received a 15 per cent non-economic loss (NEL) for her injuries, in addition to a 14 per cent NEL for a prior back injury.

In 2009 and in 2011, the WSIB referred her to work transition services (WTS). They found no suitable job options and sent her a letter saying her full benefits would continue until age 65. In 2012, they again referred her to WTS. Ms. B expressed reservations about her capacity to participate, and in response the case manager terminated her loss of earnings benefits on the basis that she was not co-operating. Ms. B agreed to participate and benefits were reinstated.

WTS proposed a plan for a return to work as a crisis and bereavement counsellor. As she had the qualifications, her program was a 10-week job search training and employment placement. The WTS was unable to find a suitable placement, but Ms. B found a position on her own providing counselling at a nursing home for two hours a day, two days a week. All agreed she was participating to the best of her ability. At the end of the program, the WTS accepted that Ms. B was unable to work more than four hours a week and, therefore, effectively removed her from the labour market. WTS also concluded that the occupation of crisis and bereavement counsellor was not a viable option. The WTS set a new work goal as a customer service representative. The case manager deemed her capable of working 20 hours a week.

Ms. B spoke with the Commission about her concerns. She called the WSIB operations manager and the director. Both reviewed the file and supported the WSIB decisions. The Commission called the director of the work transition program. After a thorough review of the file and more discussions, the WSIB confirmed that the medical evidence supported a finding that Ms. B could return to work, but all other evidence confirmed it was unlikely she would be employable.

As a result, Ms. B’s entitlement to full loss of earnings benefits was confirmed to age 65.