Highlights of Noteworthy Decisions

Decision 1124 12 R
B. Kalvin
  • Reconsideration (error of law)
  • Statutory interpretation (principles of)
  • Loss of earnings {LOE} (review) (final)

The worker applied for reconsideration of the aspect of Decision No. 1124/12 that denied the worker LOE benefits at the final review in December 2006.

The accident occurred on November 17, 2000. The Board conducted its final LOE review on December 15, 2006. Prior to that date, the worker was receiving full benefits. The Board ruled that the worker was capable of working in the identified SEB at wages that exceeded her pre-injury earnings and that, accordingly, she was not entitled to LOE benefits.
Section 44(2) of the WSIA provides that, subject to ss. (2.1), the Board shall not review LOE benefits more than 72 months after the date of the injury. It was agreed that none of the exceptions in s. 44(2.1) were applicable in this case. The worker submitted that, since none of the exceptions allowing review after 72 months applied, the Board did not have jurisdiction to review the worker's LOE benefits after November 17, 2006, and that, accordingly, the worker should be entitled to continuation of full LOE benefits.
The Vice-Chair stated that the hearing panel adopted what might be referred to as an "effective date" interpretation of s. 44(2). This allows that Board to make a final LOE decision effective as of the 72-month cut-off even if the decision is formally made after that date. Under this interpretation, the Board is authorized to make a final LOE decision after the cut-off date as long as it is based on circumstances as they stood at the cut-off date. One of the fundamental objectives of the WSIA is to provide LOE benefits to workers who legitimately have a loss of earnings. Conversely, it cannot be an objective to grant LOE benefits to a worker who does not have a loss of earnings as a result of a workplace injury. In this case, there was no allegation that the hearing panel was incorrect in finding that the worker did not have a loss of earnings attributable to the workplace accident because she was capable of working in suitable employment at no wage loss.
While a strict grammatical interpretation of s. 44(2) might support the conclusion advocated by the worker, a review of the broader context allows for a different interpretation. The interpretation adopted by the hearing panel in Decision No. 1124/12 was consistent with the fundamental objectives of the WSIA and was in keeping with a contextual reading of the statute.
The interpretation in Decision No. 1124/12 was not so unreasonable as to constitute a fundamental error of law. The application to reconsider was denied.