Can an injured worker be eligible for 100% LOE to age 65 even where there is no medical opinion confirming total disability?
When determining whether an injured worker able to work in the general labour market, consideration must be given not only to their physical and/or psychological injuries, but also their personal characteristics such as their age, level of education, experience, transferable skills. This notion of holistic adjudication allows for the decision maker to deviate from reviewing the worker’s employability from strictly a medical perspective. While the medical information remains both relevant and important evidence, in some circumstances an injured worker may be eligible for Full Loss of Earnings (LOE) Benefits even in the absence of a medical opinion stating they are totally disabled.
In the Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision No. 1308/20, the Vice-Chair held that the worker was competitively unemployable and therefore entitled to Full LOE benefits to age 65. Factors that helped the Vice-Chair reach this conclusion included the worker’s attempts to mitigate their circumstances and wage loss by cooperating in return to work activities with the WSIB, and their attempts to find alternative work. The Vice-Chair also completed a thorough analysis of the worker’s age, employment history, physical and psychological injuries and associated symptoms and limitations, level of education, learning disability and lack of transferrable skills.
The Vice-Chair stated at paragraph 41:
It is accurate to note that there is no medical evidence of substance in the case record in which an attending or consulting medical professional provides an opinion that the worker was incapable of performing suitable work in or about May 2014. This was commented on by the ARO in the May 14, 2021 decision. I do not find this to be necessarily determinative of the issue of whether the worker was employable. Although a worker may not be totally disabled as a matter of medical assessment, I must consider the worker’s employability on the basis of multiple factors.
In conclusion, an injured worker may be deemed competitively unemployable despite the absence of a clear medical opinion confirming total disability, as consideration of a worker’s employability post-injury reaches beyond strict medical reporting and must be assessed holistically in the context of the real world competitive labour market.
Author: Jennifer Cabot, Paralegal