Highlights of Noteworthy Decisions

Decision 456 15
M. Crystal
  • Loss of earnings {LOE} (disabled by non-compensable condition)

The worker suffered a finger injury in May 2009. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for psychotraumatic disability, denying LOE benefits for certain periods in 2009 and 2010, and denying LOE benefits from January 2013 to May 2013.

On the evidence, the worker had entitlement for psychotraumatic disability, and to LOE benefits for parts of the periods claimed in 2009 and 2010.
In January 2013, the worker suffered a non-compensable heart attack, and was unable to participate in his work transition program from January to May 2013.
Board Operational Policy Manual, Document No. 15-06-08, on adjusting benefits due to post-accident non-work-related changes in circumstances, addresses the worker's specific situation. It provides that LOE benefits are reduced to partial benefits based on the difference between the worker's pre-injury earnings and the earnings associated with an SO without training. It also provides that an SO without training would only consider the worker's work-related restrictions and pre-existing non-work-related conditions, including non-physical disabilities such as a learning disability. The Vice-Chair also included pre-accident personal and vocational characteristics, such as English language ability, in determining an SO without training.
In this case, a significant portion of the worker's WT program was designed to improve his English skills. The SO identified by the Board was in retail sales at minimum wage. Thus, the Board had concluded that the worker required training to perform an SO at minimum wage. Therefore, it was not likely that the worker would be capable of any employment without training.
When the worker suffered his non-compensable heart attack in January 2013, there was no SO that could be identified for the worker without training. Accordingly, the difference between his pre-accident earnings and the earnings associated with an SO without training, reflected full LOE benefits.
The Vice-Chair noted that Document No. 19-02-02, on responsibilities of the workplace parties in work reintegration, was more general in nature and should not be applied where the specific circumstances are covered in Document No. 15-06-08.
The worker was entitled to full LOE benefits from January 2013 to March 2013.
The appeal was allowed in part.