WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100056
OBJECTION BY: Employer
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Employer, Worker
RESOLUTION METHOD & PROCESS
The employer’s representative chose the 60-day expedited decision option.
ISSUE
The employer is objecting to the decision of claims adjudicator, dated June 27, 2007 which extended the worker’s LMR plan from May 31, 2007 to October 27, 2007.
HOW THE ISSUE ARISES
The worker is a 59-year old helmsman. On October 4, 2003 she injured her head and neck when she fell on the deck of a ship. The claim was allowed and on
February 5, 2005 the worker received a 27% non-economic loss (NEL) award for permanent impairment. The award was subsequently increased to 31% to recognize traumatic hearing loss as well.
The worker’s impairment prevented her from returning to her pre-injury job so in February 2005 the WSIB provided LMR service. A labour market re-entry (LMR) plan was prepared to include formal training as an environmental technician. The LMR plan was supposed to finish on May 31, 2007 but the claims adjudicator extended it to October 27, 2007.
AUTHORITY
19-03-05 LMR Plans
11-01-03 Merits and Justice
SUBMISSIONS
The employer representative’s submissions are set out in his letter dated
November 17, 2009.
ASSESSMENT OF THE EVIDENCE
Under section 42 (5) (a) of The Workplace Safety & Insurance Act, an LMR Plan shall be prepared in consultation with the worker and, unless the Board considers it inappropriate to do so, the worker’s employer.
I note the Act does not suggest a remedy if the employer is not consulted when an LMR plan is prepared. Nor does the Act require consultation when an LMR plan is subsequently amended.
The employer in this case did not object to the initial LMR plan in 2005. Although the employer does object to the extension of the plan from May 2007 to October 2007, no reasons are given as to why the plan should not be extended.
The employer’s sole argument is that the Board did not consult when it extended the LMR plan. But even if the Board had consulted the employer, there is no reason to suggest the outcome would have been any different.
I see no evidence of bad faith on the Board’s part in not consulting the employer. In my view, the Board’s failure to consult the employer in extending the worker’s LMR plan for a few months in 2007 is, at most, an administrative error to which no remedy applies.
CONCLUSION
The employer’s objection is, therefore, denied.
DATED: June 4, 2010
F. J. Mackin
Appeals Resolution officer
Appeals Branch