Highlights of Noteworthy Decisions

Decision 1933 16
13/10/2016
C. Sand - V. Phillips - D. Broadbent
  • Board Directives and Guidelines (labour market re-entry) (reassessment)
  • Loss of earnings {LOE} (deemed earnings)
  • Work transition plan (reassessment)

The worker, a construction site supervisor, suffered a left knee injury in November 2008. The Board identified a SEB as a site supervisor, with an LMR plan consisting of computer training and a job search program. Before starting the program, the worker took a job as a site supervisor, which did not require physical work, but he was laid off in September 2010. Later in September 2010, he suffered a compensable recurrence at home, for which he underwent knee surgery. The Board then granted a 5.25% NEL award.

The worker appealed a decision of the Appeals Resolution Officer denying further WT services and regarding the quantum of LOE benefits after December 2011.
According to Board policy, a worker is generally entitled to only one WT assessment. However, a worker may be entitled to a reassessment in certain circumstances, such as when the SEB becomes unsuitable or when the worker is unable to continue working in the SEB. In this case, the Panel found that there was a change in the worker's restrictions after the recurrence in September 2010 and the surgery that rendered him unable to work within the restrictions originally contemplated in the LMR plan of December 2009. The worker was no longer able to work at construction sites. The worker was entitled to a new WT plan.
On the evidence, the worker was entitled to LOE benefits after December 2011 based on ability to work full-time in a supervisory capacity, although not on a construction site, at deemed earnings of $15 per hour.
The appeal was allowed in part.