Highlights of Noteworthy Decisions

Decision 1011 13
A. Patterson
  • Availability for employment (incarceration)
  • Board Directives and Guidelines (incarceration)

The worker was a janitor for a school board. He suffered compensable injuries in 2004 and 2009. The worker appealed a decision of the Appeals Resolution Officer denying a NEL award for permanent neck impairment and denying LOE benefits after March 2011.

On the evidence, the worker did not have a permanent neck impairment.
The return to work process was interrupted by criminal proceedings against the worker. The worker pled guilty. Conditions were placed on the worker that he was not allowed to be around children under age 14 and only allowed to be around children over age 14 if accompanied by another adult.
The worker was not actually incarcerated but the Vice-Chair found it useful to consider Board policy and Tribunal decisions dealing with incarceration. The Vice-Chair found that the employer could have, and would have, provided the worker with permanent suitable modified work. The fact that the worker could no longer work at a school due to the conditions imposed from the criminal charge and that, therefore, the employer could not offer the work to the worker, was a result of the guilty plea by the worker to the criminal charge. The loss of earnings was not attributable to the compensable injury.
The worker was not entitled to further LOE benefits.
The appeal was dismissed.