Highlights of Noteworthy Decisions

Decision 838 13
E. Smith
  • Loss of earnings {LOE} (disabled by non-compensable condition)

The worker suffered a low back injury in December 2005, for which she was granted an 8% NEL award. Her LMR program was closed for a period of time in 2008, while she underwent surgery for a non-compensable hip condition. The worker withdrew again from the LMR program in April 2010. The worker appealed a decision of the Appeals Resolution Officer granting only partial LOE benefits (based on deemed earnings in the identified SEB) during the period in 2008 and after April 2010.

Board Operational Policy Manual, Document No. 15-05-04, states that, if a non-work-related condition and a work-related condition are both contributing to the ongoing disability / loss of earnings, full compensation benefits are continued until the level of the work-related disability / loss of earnings is clinically determined, at which time continuing compensation is paid commensurate with the degree of the remaining work-related disability / loss of earnings. The worker submitted the Document No. 15-05-04 meant that full benefits are continued until the date of the NEL assessment, which is the date that the level of permanent impairment is determined. In this case, that date was in June 2009, which is after the period of withdrawal from LMR due to the hip surgery.
The Vice-Chair disagreed with the interpretation of the worker, noting that, if the Board had intended the reference to have been to the NEL assessment, it would have referred specifically to that assessment and not to clinical determinations generally. The Vice-Chair also noted that the policy refers to clinical determination as relevant to the level of disability and the level of loss of earnings. A NEL assessment does not address loss of earnings. The Vice-Chair found that the reference means that the medical and other clinical evidence available must be sufficient for the Board to reasonably determine the nature of the worker's compensable injury and what work the worker is able to do for the purposes of assessing loss of earnings. In many cases, that assessment can be made before the worker reaches MMR.
Document No. 19-03-02 provides that, in determining entitlement to LMR plans, the Board must have regard to the worker's rights under the Ontario Human Rights Code, that workers are entitled to equal treatment and that, when conducting an LMR assessment, the Board considers any non-work-related disability the worker may have. The worker submitted that, under this policy, a worker who cannot participate in an LMR plan due to a non-compensable post-accident injury is entitled to full LOE benefits until age 65.
The Vice-Chair disagreed, stating that the policy applies to LMR services and does not directly address LOE. To be suitable, an LMR plan must accommodate both compensable and non-compensable conditions. The Board accommodated by closing the LMR plan when the worker was unable to participate and reopening it after recovery from the hip surgery when she was able to participate again.
Section 43(4)(a) of the WSIA provides that if a worker is provided with an LMR plan, the worker's earnings are deemed from the date the worker completes the plan. The worker submitted that she was entitled to full LOE benefits until she completed the plan, and that no reduction for failure to complete the plan due to post-accident non-compensable problems was allowed.
The Vice-Chair found that s. 43(4) had to be interpreted in the context of s. 43(1), which provides benefits for loss of earnings resulting from the injury.
The Vice-Chair concluded that the Board correctly determined that the worker was entitled to partial LOE benefits based on deemed earnings in the SEB. However, the Vice-Chair adjusted the LOE entitlement based on ability to work only 24 hours per week.
The appeal was allowed in part.