Highlights of Noteworthy Decisions

Decision 1449 15
J. Josefo
  • Intervening causes
  • Loss of earnings {LOE} (retirement) (early)

The worker suffered a repetitive strain injury in May 2006. The employer provided suitable modified work. The worker resigned in November 2006 for personal reasons. In December 2007, the worker realized that he made a mistake in resigning, and requested re-employment. The employer refused. In Decision No. 2130/09, the Tribunal found that the worker was not entitled to further LOE benefits or LMR services.

The worker underwent elbow surgery in 2011. The worker now appealed a decision of the Appeals Resolution Officer denying LOE benefits after the surgery.
The worker acknowledged that Decision No. 2130/09 denied entitlement to LOE benefits for the period of time that was in issue in that case. However, the worker noted that Decision No. 2130/09 left the door open for further entitlement if there would be a change of circumstances, such that the intervening event of the worker's resignation is no longer a significant factor to the loss of earnings.
The Vice-Chair noted that Decision No. 2130/09 cited and relied on Decision No. 2520/08I. At that time, Decision No. 2520/08IR had not yet been released. Decision No. 2520/08IR provided a cogent analysis and very much advanced the discussion of entitlement to LOE benefits subsequent to an intervening event. The analysis in Decision No. 2520/08IR was preferable to that in Decision No. 2520/08I, and essentially supersedes the analysis in Decision No. 2130/09.
The loss of earnings must be linked to the compensable injury in order for there to be entitlement. Once there is an intervening event which breaks the chain of causation, so that a loss of earnings is no longer related to the injury, entitlement to LOE benefits ceases. In this case, the worker's resignation in 2006 continues to be that intervening event. It also cannot be said that the intervening event has, over time, been reduced to insignificance. The worker made an informed personal choice to resign in 2006. His loss of earnings is the result of his resignation from employment.
Even if the Vice-Chair applied the criteria in Decision No. 2130/09, the worker was not entitled to LOE benefits after the surgery in 2011, as he had not been employed for many years and was not seeking employment, so that there was no loss of earnings.
The appeal was dismissed.