Highlights of Noteworthy Decisions

Decision 712 16
18/08/2016
M. McGarvey - M. Christie - A. Grande
  • Loss of earnings {LOE} (lay-off)
  • Work transition plan (eligibility) (lay-off)

The worker suffered a herniated disc in January 2008, for which the Board granted a 19% NEL award. While he was at home recovering, he was shot during a home invasion. Surgery for the herniated disc was rescheduled to January 2009 but the worker did not attend. He returned to modified work with the employer in July 2009. Surgery was again scheduled for December 2009 but again the worker did not attend. The worker was laid off due to shortage of work in April 2010. In February 2011, the worker approached his case manager about assistance in returning to work.

The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits and LMR services after February 2011.
The worker explained the delay in contacting the case manager after the lay-off that he expected to be hired back in his accommodated position and did not need the Board's assistance in returning to work. However, it became apparent after some time that he was not being recalled to work even though the project on which he was working at the time of the lay-off continued, nor was he recalled to work on subsequent projects.
The worker conducted his own job search after contacting the case manager. He made reasonable efforts to find employment and was able to obtain some work through temporary agencies. The worker was entitled to wage loss LOE benefits after February 2011.
The worker was in highly modified work when he was laid off, which was not generally available in the labour market. Board Operational Policy Manual, Document No. 19-03-03, on determining suitable occupation was applicable. The version of the policy that is applicable to decisions made after December 1, 2010, provides that the Board generally provides assessments between six and nine months after the injury and, in exceptional circumstances, no later than 12 months after the injury. The policy was amended as regarding decisions made after December 1, 2012, to provide that, if not possible to conduct a work transition assessment six to nine months after the injury, the assessment will occur as soon as the worker is functionally fit to return to suitable work.
In this case, there was correspondence from the Board to the worker after March 2011 but there was no final decision from the case manager regarding work transition services until February 2013. Accordingly, the later version of Document No. 19-03-03 was applicable in this case.
The Panel concluded that the worker was entitled to a work transition assessment.
The appeal was allowed.