Highlights of Noteworthy Decisions

Decision 2786 15
K. Iima - S. Sahay - G. Carlino
  • Loss of earnings {LOE} (review) (after seventy-two months) (co-operating in ESRTW)

The worker suffered an elbow injury in April 2001, for which he was granted a 7% NEL award. He suffered a recurrence in October 2003. In Decision No. 642/12, the Tribunal allowed the worker's appeal regarding the determination of the earnings basis for the recurrence. The worker returned to modified work with the employer until he was permanently laid off due to restructuring in January 2012. The worker appealed a decision of the Appeals Resolution Officer denying further LOE benefits after the lay-off.

The final LOE review took place in 2007. Thus, the lay-off in 2012 occurred after the final review date. After the recurrence, the worker returned to suitable modified work within his medical restrictions. The Panel found that the workplace parties were co-operating in ESRTW at the time of the final LOE review and until the worker as laid off in 2012. Accordingly, the exception to review after 72 months in s. 44(2.1)(g)(i) of the WSIA applied, to allow review after the 72-month period. However, s. 44(2.4.4) provides that, if s. 44(2.1)(g) applies, the Board may review payments up to 24 months after the date of the expiry of the 72-month period which, in this case, was in 2009. Therefore, there was no jurisdiction to review the LOE benefits in 2012.
In any event, even if LOE benefits could be reviewed, the worker would not have been entitled to further LOE benefits because his loss of earnings was related to the employer's restructuring and his employability was not directly affected by his work-related impairment.
The appeal was dismissed.