Highlights of Noteworthy Decisions

Decision 2143 14
J. Josefo
  • Loss of earnings {LOE} (review)
  • Loss of earnings {LOE} (employability) (full benefit reversal by Board)

A labourer fell from a ladder and broke his heel in November 2005. The Board granted full LOE benefits and a 10% NEL award. In addition, he was receiving a 6% NEL award for hearing loss under a previous claim. In 2009, he was referred for LMR services but found to be unemployable. In 2011, he was referred for work transition services. The Board identified a suitable occupation for the worker as a cabinet maker, and based LOE benefits on deemed earnings in that SO. On appeal, the Appeals Resolution Officer found that the SO of cabinet maker was not appropriate but that an SO of parking lot attendant was appropriate. The ARO then based LOE benefits as of December 2012 on deemed earnings in the SO of parking lot attendant. The worker appealed.

A similar issue was addressed in Decision No. 166/14 and in a different ARO decision from the Board that was submitted by the worker. In the ARO decision, the ARO stated that, if the worker was found to be unemployable previously, she was even more unemployable three years later.
Section 44 of the WSIA provides that LOE benefits can be reviewed yearly or if a material change in circumstances occurs, up to the final 72-month review date. On that basis, LOE benefits should be reviewed if the original decision was flawed or new facts come to light. However, when there are no new facts, nothing has changed and the prior decision was not shown to be wrong, the Vice-Chair saw no factual basis or justification to find that a worker is employable when a prior Board decision found that worker to be unemployable.
In this case, considering the psycho-vocational assessment from 2009, the lack of change in circumstances since 2009, the worker's inability academically and the functions of a parking lot attendant, the Vice-Chair concluded that the worker continued to be unemployable and entitled to full LOE benefits.
The appeal was allowed.