Highlights of Noteworthy Decisions

Decision 340 15
S. Shime
  • Suitable employment
  • Loss of earnings {LOE} (lay-off)
  • Medical report (early reports preferred)
  • Psychotraumatic disability
  • Permanent impairment {NEL}

The worker suffered a low back injury in August 2005. The worker appealed a decision of the Appeals Resolution Officer denying a NEL award for permanent back impairment, entitlement for psychotraumatic disability and LOE benefits after September 2005.

The Vice-Chair found that the worker recovered from the back injury without permanent impairment. In making this determination, the Vice-Chair accepted the findings in more contemporaneous medical reports over the findings of medical reports from doctors who examined the worker a number of years later.
On the evidence, the worker had entitlement for psychotraumatic disability.
Although the psychotraumatic disability has not been rated, the Vice-Chair was persuaded that the worker was capable of resuming work after the accident. The employer offered modified work that was suitable for the worker's physical and psychological restrictions. The exact quantum of the psychological disability is not yet known but the Vice-Chair had the relevant medical, physical and personal evidence in order to determine that the modified job was suitable. The psychological condition did not impair the worker's ability to resume modified work. The worker was not entitled to LOE benefits after September 2005.
The employer's plant closed in April 2007. The Vice-Chair found that the worker was not entitled to LOE benefits after the plant closure. The worker had constructively resigned her position with the accident employer when she refused to return to suitable modified work. It was apparent that she had no intention of returning to work with the accident employer. She applied for and received CPP disability benefits in 2006, thus signalling her intention not to return to the work force. As in Decision No. 1662/01R, the Board policy on plant closures was not applicable because the worker had taken herself out of the compensation scheme by constructively removing herself from the work force in 2006. Thus, the issue of employability was not relevant.
The appeal was allowed in part.