Highlights of Noteworthy Decisions

Decision 1749 16
Z. Onen - S. Sahay - A. Grande
  • Loss of earnings {LOE} (review) (after seventy-two months) (co-operating in ESRTW)

The worker suffered a low back injury in July 2004, for which he was granted a 16% NEL award. The employer terminated the worker's employment in September 2010. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after September 2010.

The 72-month LOE review period in July 2010, prior to termination of the worker's employment. The Panel found that the exception in s. 44(2.1)(g) of the WSIA applied in this case to allow review after 72 months. Section 44(2.1)(g) allows review after 72 months if the worker and employer were co-operating in ESRTW when the 72-month period expired.
In October 2005, the employer provided the worker with accommodated work. The job did not exist before. There were no productivity objectives and the worker could take as many breaks as he wanted. The employer maintained this job for the worker for five years. Until, the employer terminated the worker's employment, the employer and worker were co-operatively engaged in maintaining the job that was designed to support the worker's physical restrictions.
The Panel agreed with Decision No. 1869/13 that there is no fixed termination date for ESRTW. The ESRTW phase comes to a natural conclusion when return to work with the accident employer is not possible, by withdrawal of one of the parties, a severing of the employment relationship or a determination that no suitable work is available with the accident employer.
The ESRTW phase commenced in October 2005, and was still in effect when the 72-month review period expired in July 2010. When the employer terminated the worker's employment in September 2010, the worker came within the exception in s. 44(2.1)(g), and was entitled to review of his LOE benefits.
The appeal was allowed.