Highlights of Noteworthy Decisions

Decision 191 15
J. Goldman - M. Trudeau - F. Jackson
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Labour market re-entry {LMR} (self-directed program)

The worker suffered a low back injury in October 2003, for which he was granted a 21% NEL award. He continued working for the accident employer at modified work until he was permanently laid off in July 2008. Initially, the Board decided that LMR services were not warranted but reconsidered that decision and, in March 2009, offered the worker an LMR assessment. The worker did not accept that offer because, by then, the worker had obtained a temporary, contract position. In November 2009, at the final LOE review, the Board based LOE benefits on actual wages in the contract position. In June 2011, he was permanently laid off from the contract position.

The worker appealed a decision of the Appeals Resolution Officer denying review of the LOE benefits in June 2011.
The temporary contract position was not available on a permanent basis and, therefore, could not be considered to be sustainable. At the time he accepted the contract position, he was entitled to LMR services, which had not yet been undertaken or completed at the time of the final LOE review.
The worker testified that he did not decline LMR services. Rather, he asked the Board to defer the LMR assessment until completion of the contract position. In the exceptional circumstances of the case, the Panel found that the contract position could be considered as a form of self-directed LMR.
The worker then fell within the ambit of s. 44(2.1) of the WSIA which states that the Board may review LOE benefits more than 72 months after the date of the injury if the worker was provided with an LMR plan that was not completed when the 72-month period expired.
In this case, the LMR plan was not complete in November 2009, when the 72-month period expired, nor was it complete in June 2011, when the contract ended. After completion of the contract, the worker entered a college training program. The Panel found that the self-directed LMR program was completed in April 2014, on completion of the college program.
The worker was entitled to full LOE benefits until April 2014, followed by LOE benefits based on his earnings in the job he was able to secure following the college program. The appeal was allowed.