- Jurisdiction, Tribunal (Board implicitly dealt with issue)
- Permanent impairment {NEL}
- Preexisting condition (knee condition)
- Benefits (working illegally in Canada)
- Suitable occupation
- Loss of earnings {LOE} (deemed earnings) (relocation)
- Laceration (leg)
The worker suffered a severe left thigh laceration on September 10, 2020, while operating a saw. The injury required surgery and led to ongoing impairments. The worker was illegally working in Canada at the time of injury and returned to his home country shortly after for medical treatment and financial reasons. The WSIB initially denied LOE benefits beyond September 30, 2020, but later awarded partial LOE benefits from April 27, 2021, based on a suitable occupation (SO) determined by the WSIB. This decision addressed the worker's ongoing entitlement to benefits for the left thigh injury, entitlement for the exacerbation of a pre-existing left knee condition, and the suitability of the SO and LOE benefits calculations.
The Vice-Chair allowed the appeal, in part. WSIAT decisions have established that the fact that a worker is working illegally in Canada does not disentitle a worker to benefit coverage under the WSIA (see Decision No. 1896/15). The Vice-Chair found that despite wound healing, the worker continued to suffer from permanent impairment of the left thigh, including weakness, muscle atrophy, and pain limiting mobility. This ongoing impairment was attributable to the original compensable injury. However, the evidence did not support entitlement for neurovascular compromise as part of the injury.The worker developed left knee symptoms following the thigh injury, including swelling and fluid accumulation, and underwent meniscal surgery on June 7, 2022. The medical reporting indicated that the compensable thigh injury significantly contributed to an exacerbation of a pre-existing degenerative knee condition, delaying recovery and necessitating surgery. The Vice-Chair concluded that the worker was entitled to benefits for this secondary knee injury and related surgery.The Vice-Chair agreed the SO was suitable but found that, given the worker's return to his home country and circumstances (including language and legal work status), LOE benefits should be based on the minimum wage in the worker's home country for a 40-hour workweek. The Vice-Chair referenced the leading case strategy from appeals concerning foreign workers employed in the Seasonal Agricultural Workers Program (SAWP). The worker found sedentary work consistent with this SO in June 2024, earning minimum wage in his home country. During the period of knee surgery and recovery, the SO was not suitable due to unemployability, but after recovery, the SO became suitable again for the worker.The Vice-Chair granted ongoing partial LOE benefits from January 22, 2024, based on the SO and the worker's ability to earn minimum wage in his home country for 40 hours per week. Psychological conditions reported by the worker were not adjudicated in this appeal and are considered non-compensable post-accident changes at this time.