Case snapshot
At a glance
- Case
- Can a WSIB Suitable Occupation Be Overturned on Appeal in Ontario?
- Court / Tribunal
- Workplace Safety and Insurance Appeals Tribunal
- Citation
- 2026 ONWSIAT 933 ↗
- Date
- August 14, 2026
- Area of law
- Employment Law
- Key issue
- Whether the WSIB's suitable occupation of Sales and Account Representative fit an injured miner, whether his 15% psychotraumatic NEL rating was too low, and how his loss-of-earnings benefits should be calculated.
- Outcome
- The appeal was allowed in part. The neck claim stayed denied, but the Tribunal granted full LOE benefits from December 7, 2016 to June 16, 2017 (less any earnings paid), raised the psychotraumatic NEL rating to 20%, found the Sales and Account Representative occupation unsuitable, and set partial LOE benefits from January 27, 2020 and from the November 5, 2022 final review on 15 hours a week of entry-level, direct-entry work.
- Why it matters
- A suitable occupation drives how much an injured worker is deemed able to earn. This decision shows the Tribunal looking at education, computer skills, driving demands, and commuting when deciding whether an occupation and a set number of hours are realistic.
Legal principle
The rule from this case
A suitable occupation sets the earnings the WSIB deems an injured worker able to earn, which in turn sets partial loss-of-earnings (LOE) benefits. In this case the Tribunal did not accept the occupation just because part of the job was sedentary. It weighed the worker's Grade 9 education against the occupation's usual requirement of secondary school, his lack of any computer or office-software training, and the long drives the job would require given his limited sitting tolerance, and concluded the occupation was not suitable. For the psychotraumatic non-economic loss (NEL) rating, the Tribunal applied the class descriptions in WSIB Policy 18-05-11. Although many of the worker's daily-living findings pointed to Class 2, it found that his chronic depression, fatigue, insomnia, and concentration difficulties were features of the mid-range of Class 3, and set the rating at 20%.
Important limits
What this does not mean
This decision does not mean every suitable occupation can be overturned or that every psychological NEL rating will go up. The result turned on this worker's specific record: limited formal education, no computer training, a low-back sitting restriction, and life in a semi-rural area far from work. The Tribunal also rejected parts of the worker's case, including the neck claim and the argument that his good and bad days made him unable to attend work regularly. It also does not establish that PTSD symptoms are automatically part of a psychotraumatic disability award. The worker's representative withdrew the PTSD claim under the traumatic mental stress route after agreeing that a sudden and objectively traumatic event was not present, and the representative argued that the symptoms belonged within the existing psychotraumatic disability. The decision does not make a separate finding on that point.
Can a WSIB Suitable Occupation Be Overturned?
Yes. On appeal, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) can find that the occupation the WSIB chose does not realistically fit the worker. That is what happened in Decision No. 1021/19, 2026 ONWSIAT 933 (CanLII), where a three-member panel found that Sales and Account Representative was not a suitable occupation for an injured underground miner and recalculated his loss-of-earnings benefits.
The worker hurt his low back in November 2016 lifting a 70 to 80 pound ventilation segment. He later received an 11% non-economic loss (NEL) award for the low back and a separate psychotraumatic disability award. His employer could not offer permanent modified work, so the WSIB identified a suitable occupation and calculated his benefits on 20 hours a week in that job.
If you have questions about how Ontario’s workers’ compensation system applies to you, our Ontario employment lawyers can help you understand your options.
Why Was the Suitable Occupation Rejected?
The WSIB chose NOC 6411, Sales and Account Representative. The Tribunal found it unsuitable for three reasons:
- Education. The worker left high school in Grade 9. He later passed a Quebec general development test used for mature-student college entry, but the Tribunal noted that this is not a high school diploma, while the occupation usually requires secondary school and sometimes college or university.
- Computer skills. The job’s duties, such as keeping client lists, quotes, and contracts, would require standard office software. The worker had never owned a computer and had no training in spreadsheets or word processing.
- Driving. The job would require long drives to meet wholesale buyers, especially in low-density northern Ontario and northern Quebec. Those drives would exceed his ability to stay seated and would require an unreasonable number of stops.
How Were the Loss-of-Earnings Benefits Recalculated?
The Tribunal granted full LOE benefits from December 7, 2016 to June 16, 2017, less any earnings paid by the employer or the Board in that period. The worker had medical authorization to be off work while his back was being investigated and treated. Once he was found capable of sedentary work in April 2017, he cooperated with the return-to-work process, and the Tribunal found his concerns about the roughly 150-kilometre commute to the mine were justified.
From January 27, 2020, the Tribunal based his partial LOE benefits on entry-level wages in a direct-entry occupation that needs no retraining, at 15 hours a week rather than the WSIB’s 20. His physical restrictions fit direct-entry work, but because he lives in a semi-rural area near the Quebec border, any commute would likely require breaks. The Tribunal set his capacity at three hours a day, five days a week, and applied the same 15 hours at the November 5, 2022 final LOE review, noting that someone working 15 hours a week is unlikely to advance much beyond entry-level pay.
The Tribunal did not accept every argument. It rejected the submission that his good and bad days made him unable to attend work regularly, noting that over a decade of records showed he had not missed appointments because of flare-ups.
How Was the Psychotraumatic NEL Rating Decided?
Psychotraumatic NEL ratings follow the class descriptions in WSIB Policy 18-05-11. Class 2 (Mild) covers 5% to 15%, and Class 3 (Moderate) covers 20% to 45%. The WSIB rated the worker at 15%, and his representative argued for the mid-range of Class 3.
The Tribunal found many factors pointed to Class 2. The worker lives on his own, manages his daily needs without direction, and keeps up friendships and family contact. It did not accept that he had significant memory problems or cognitive decline, pointing to his online research of medical treatments, booking travel abroad, and improving his English on his own. Still, it found that his chronic depression, fatigue, insomnia, negative feelings about himself, and concentration difficulties were features of the mid-range of Class 3, and it set the rating at 20%. The Tribunal said that, combined with the 11% low-back award, this results in a 29% whole-person NEL award.
What Happened to the PTSD and Neck Claims?
During the hearing, the worker’s representative agreed that a necessary element of a traumatic mental stress claim, a sudden and objectively traumatic event, was not present, and withdrew the PTSD issue. The representative argued that the symptoms diagnosed as PTSD should instead be considered part of the worker’s compensable psychotraumatic disability.
The Tribunal upheld the denial of benefits for a neck condition. No contemporaneous record identified a neck injury: the worker’s own injury report listed only the low back, a December 2016 neck X-ray showed mild spondylosis with no sign of traumatic injury, and the neck MRI report appeared to relate to symptoms from an earlier accident in 2000 for which no claim was made.
Questions and Records to Discuss With a Lawyer
- Does the suitable occupation the WSIB chose match your actual education, training, and computer skills?
- Does the occupation require driving, travel, or sitting beyond your restrictions?
- Have your commute and where you live been considered in deciding how many hours you can realistically work?
- Do your psychological assessments describe symptoms such as depression, fatigue, insomnia, or concentration problems that your NEL rating may not reflect?
- Were you medically authorized off work during any period for which LOE benefits were denied?
If you are dealing with a WSIB decision about a suitable occupation, LOE benefits, or a NEL rating, reach out to UL Lawyers through /connect to speak with a lawyer about your circumstances.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
Yes. A suitable occupation decision can be objected to within the WSIB and then appealed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). In this case the Tribunal found the occupation unsuitable because of the worker's limited formal education, lack of computer training, and inability to handle the long drives the job would require.
The WSIB uses the rating schedule in Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders. Class 2 (Mild) covers 5% to 15% and Class 3 (Moderate) covers 20% to 45%. Here the Tribunal raised a 15% rating to 20% because chronic depression, fatigue, insomnia and concentration difficulties matched features of Class 3.
It did in this decision. Because the worker lived in a semi-rural area of northern Ontario near the Quebec border and would likely need breaks on any commute, the Tribunal found full-time work unlikely and set his capacity at three hours a day, five days a week.