Highlights of Noteworthy Decisions

Decision 412 15
R. Nairn
  • Early and safe return to work {ESRTW} (cooperation)
  • Loss of earnings {LOE} (lay-off)
  • Loss of earnings {LOE} (review) (after seventy-two months)

The worker, a machine operator, suffered a shoulder injury in February 2003, for which he was granted a 14% NEL award. He returned to work with the accident employer but was permanently laid off on June 30, 2009, when the employer closed its plant. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after June 2009.

The final 72-month LOE review took place on March 1, 2009. Accordingly, LOE benefits could only be reviewed after the expiration of the 72-month period if the worker met one of the exceptions in s. 44(2.1) of the WSIA and Board Operational Policy Manual, Document No. 18-03-06, on final LOE benefit review. The Board found that the worker did not come within any of the exceptions. However, the Vice-Chair noted that one of the exceptions is when the worker and employer are co-operating in ESRTW when the 72-month period expires. The Vice-Chair found that the worker had returned to work as a machine operator but that there had been significant modifications to his job, especially the provision of an assistant to do all the lifting and awkward bending and twisting. Thus, the worker was performing modified duties and involved in an ESRTW process at the time of the plant closure. Therefore, the Vice-Chair had authority to consider entitlement to LOE benefits at the time of the plant closure.
The worker's employability was clearly affected at the time of his lay-off by his compensable injury. The worker was entitled to LOE benefits, the quantum and duration of which was returned to the Board for adjudication. The appeal was allowed.