K. Wuori

The worker requested a reconsideration of a decision denying loss of earnings (LOE) benefits from October 1, 2001 onwards.

The worker had previously been granted a 48% non-economic loss (NEL) award for organic low back and psychotraumatic disabilities.

The Appeals Resolution Officer found that the significant NEL award constituted new evidence warranting reconsideration.

However, the Officer determined that the worker was only partially impaired and capable of performing suitable employment on a part-time basis.

The worker was granted partial LOE benefits based on the minimum wage for 15 hours per week.

The worker appealed a decision reducing his non-economic loss (NEL) award from 37% to 31% due to a prior 12% NEL award for noise-induced hearing loss and a pre-existing non-work-related shoulder impairment.

The reduction was calculated using the Combined Values Chart (CVC) of the AMA Guides, as required by WSIB policy.

The worker argued this policy violated Section 15(1) of the Charter and the Human Rights Code by discriminating on the basis of physical disability.

The Appeals Resolution Officer found that while the Appeals Branch had jurisdiction and WSIB benefits constituted a 'service', the application of the CVC did not result in substantive discrimination.

The policy was found to be consistent with the WSIB's mandate to compensate only for work-related injuries and did not demean the essential human dignity of injured workers.

The appeal was denied.

The worker, who was injured at age 67, challenged the constitutionality of s. 43(1)(c) of the Workplace Safety and Insurance Act, which limits loss of earnings benefits to two years for workers injured after age 63.

The worker argued this provision violated s. 15(1) of the Charter by discriminating on the basis of age.

The Appeals Resolution Officer found that while the provision creates a distinction based on age, it does not result in substantive discrimination or undermine the essential human dignity of older workers, as it reflects the typical working and earning patterns of Canadians.

The appeal was denied.