Highlights of Noteworthy Decisions

Decision 2063 16
K. Jepson - B. Young - C. Salama
  • Loss of earnings {LOE} (disabled by non-compensable condition) (maternity)
  • Loss of earnings {LOE} (mitigation)
  • Loss of earnings {LOE} (pending LMR assessment)

A construction worker suffered a low back injury in May 2011. The worker appealed a decision of the Appeals Resolution Officer denying ongoing benefits after October 2012, and denying a NEL award for permanent impairment.

The worker returned to work after the accident until September 2011, when he stopped working on the advice of his doctor. He returned to work briefly in April 2012 but stopped working in May 2012, when he took paternal leave. After completion of the paternal leave in May 2013, he returned to work at irregular and reduce hours at lighter duties.
The compensable injury permanently aggravated pre-existing degenerative disc disease. The worker was entitled to further benefits and a NEL assessment.
The worker was entitled to an LMR assessment as of September 2011. However, that will not occur until after this decision is implemented. Thus, the Panel had to determine the worker's entitlement to LOE benefits during the pre-LMR gap period. The Tribunal approach is to consider whether the worker was engaged in activities during this gap period that could reasonably be characterized as self-directed LMR activity.
The Board granted LOE benefits during part of this period, from September 2011 to October 2012. The Board's reasoning for this is not clear, but benefits prior to October 2012 was not an issue on the appeal.
Tribunal decisions have generally found that, when a worker chooses to take maternity or paternity leave, the loss of earnings flows from the personal choice to take the leave and not from the workplace injury. That was the situation in this case. In February, the worker started taking ESL classes two evenings per week. However, that was not sufficient to constitute self-directed LMR activity. Because he took the parental leave, he was not available to engage in any other aspects of mitigation or self-directed LMR activity, job search in particular.
The worker was not entitled to LOE benefits from October 2012 to May 2013. He was entitled to full LOE benefits after May 2013, less any income received.
The appeal was allowed in part.