Highlights of Noteworthy Decisions

Decision 704 15
K. Jepson - E. Tracey - K. Hoskin
  • Early and safe return to work {ESRTW} (cooperation)
  • Loss of earnings {LOE} (lay-off)
  • Loss of earnings {LOE} (review) (after seventy-two months) (co-operating in ESRTW)

The worker was a shipper-receiver with the accident employer. He suffered a low back injury in July 1999, for which he was granted a 13% NEL award. He returned to work in August 1999, originally at modified work, but subsequently at regular duties but as a lead hand where he was in charge of several other workers. The worker was permanently laid off when the employer's plant closed in July 2007. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after the plant closure.

The final LOE review date was in July 2005, two years before the lay-off. The Panel had to determine whether the worker met criteria for retroactive deferral of the final LOE review date under s. 44(2.1)(g)(i) of the WSIA, for participation in ESRTW at the time of the final review date.
Board Operational Policy Manual, Document No. 18-03-06, on final LOE benefit review, provides indicia of participation in ESRTW. In this case, Panel found that the worker and employer were not engaged in ESRTW at the date of the final LOE review. The employer found a role for the worker within the company that was suitable for his restrictions. This role was not created especially for the worker in order to accommodate him. Rather, he was given what was, in effect, a promotion to a role that both utilized his skills and experience, and fulfilled a need for the employer. Most of the indicia in the Board policy were not present in this case. The worker and employer were not engaged in an ongoing dialogue to accommodate the worker. There was not been any Board involvement for many years. Further, the worker's position was not highly accommodated. The job as a lead hand was not specific to the employer such that it would not be available in the general labour market.
The worker did not qualify for deferral of the 72-month final LOE review as he was not participating in ESRTW at the time of the final LOE review. Accordingly, he was not entitled to further LOE benefits. The appeal was dismissed.