Highlights of Noteworthy Decisions

Decision 476 15
S. Netten
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (review) (after completion of LMR plan)

The worker suffered a low back injury in September 2002, for which he was granted a 19% NEL award, later replaced by a 30% NEL award for chronic pain disability. In Decision No. 1164/08, the Tribunal found that the SEB identified by the Board as a sales clerk was not appropriate because the worker had been competitively unemployable since February 2005 due to inadequate medical treatment. The hearing panel granted full LOE benefits and directed a further LMR assessment, along with possible LMR services following medical treatment.

The Board then provided treatment and WT services until March 2012, when it terminated services due to non-co-operation and granted LOE benefits based on full-time earnings in the SEB of light duty assembler.
In February 2013, the Tribunal released Decision No. 1164/08R to clarify that LOE benefits were granted for a period that encompassed the 72-month lock-in date, so that any review of LOE benefits could only occur if one of the exceptions in s. 44(2.1) of the WSIA applied.
The worker now appealed the decision of the Appeals Resolution Officer regarding the level of LOE benefits after March 2012.
Tribunal jurisprudence has found that an inadequate LMR plan is effectively an incomplete LMR plan, thus allowing for a renewed LMR process more than 72 months after an injury, after which LOE benefits may be reviewed pursuant to s. 44(2.1)(b). When the Tribunal retrospectively and at a later date directs revised or renewed LMR services, the corresponding ability to review LOE benefits upon their completion is essential for meaningful implementation of that direction.
According to Decision No. 1164/08, the primary defect in the worker's LMR plan was that it was premature because additional medical treatment was first required. Section 42 requires an LMR plan to contain the steps necessary to enable a worker to re-enter the labour market in the SEB. Due to the failure to contain adequate treatment, the LMR plan did not contain all the steps necessary for labour market re-entry. Thus, the initial LMR plan was defective and, effectively, incomplete, both in February 2005 and as of the date of final review in September 2008. Subsequent LOE review was, therefore, permissible under s. 44(2.1)(b).
In light of the Tribunal determination in Decision No. 1164/08 in 2009, a finding that the worker is employable in 2012 would require either a change in the worker's circumstances relevant to the worker's employability or new information relevant to the worker's employability that was not previously available. In this case, there was new information on file relevant to employability, as a result of further treatment and initiation of WT activities.
Based on this new information, the Vice-Chair found that the worker could have returned to suitable part-time work at minimum wage. The worker was entitled to LOE benefits as of March 2012 based on ability to work part-time at minimum wage. The appeal was allowed in part.