Highlights of Noteworthy Decisions

Decision 2946 16
S. Netten
  • Loss of earnings {LOE} (review) (extension)
  • Loss of earnings {LOE} (review) (after completion of LMR plan)
  • Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)

The worker suffered a foot injury in April 2008. After entitlement was extended to other conditions in February 2014, the Board deferred the final LOE review, which should have taken place in April 2014, until June 2016, on the basis that WT was not completed. The worker appealed a decision of the Appeals Resolution Officer denying some additional entitlement and regarding review of LOE benefits.

On the evidence, the worker did not have entitlement for plantar fasciitis and was not entitled to an increase in her 15% NEL award for chronic pain disability. The Vice-Chair also confirmed the decision of the Board granting LOE benefits from November 2011 based on ability to work 32 hours per week at $10.25 per hour, which was the minimum wage at the time.
The Board based LOE benefits from June 2014 until the final deferred review in June 2016 based on an increase to the minimum wage. Section 44(2.1)(b) of the WSIA provides the ability to review LOE benefits more than 72 months after the injury based on an incomplete WT plan. That is further addressed in Board Operational Policy Manual, Document No. 18-03-06, which provides that there may be cases where a WT assessment has been arranged with the intention to provide a WT plan that would allow for a deferral. Tribunal decisions have applied the policy to allow review of LOE benefits where the WT process was underway at the expiry of the 72-month period but the plan itself had not been approved or started. However, simply referring a file for review prior to the expiry of the 72 months does not constitute the provision or arranging of a WT plan or assessment.
In this case, a number of implementation decisions were taken shortly after entitlement for other conditions was extended in February 2014 but no steps were taken with respect to WT until June 2014, when the case manager spoke with the worker and discussed the worker's willingness to undertake a WT assessment and possible WT plan. Prior to June 2014, there had been no request, decision or communication with respect to WT services. As there was no actual WT activity at the 72-month point, review after 72 months of the basis of s. 44(2.1)(b) was not allowed. Accordingly, the reduction in benefits in June 2014 due to the increase in the minimum wage was rescinded. The worker was entitled to continuation of LOE benefits based on ability to work 32 hours per week at $10.25 per hour.
The worker's foot became inflamed in June 2015, and she required a cast for about three weeks. The Board found that this was a significant temporary deterioration that would allow review of LOE benefits under s. 44(2.1)(f), but denied any further LOE benefits during this period because the worker had not experienced an actual loss of earnings due to a recurrence.
The Vice-Chair noted that s. 43(1) provides entitlement to LOE benefits for a worker who has a loss of earnings as a result of an injury. The Board already found that the worker experienced an ongoing loss of earnings due to the workplace injury since 2009. The ARO referred to the new Board policy on recurrences. The Vice-Chair stated that the policy provides a general approach, in the recurrence context, to the s. 43(1) requirement for a loss of earnings to exist in order to pay LOE benefits. It addresses entitlement to LOE benefits under s. 43(1) and not the quantum of LOE benefits under s. 43(2). Those guidelines do not apply in this case, where there is a continuing loss of earnings already established, and the outstanding issue is the quantum of the LOE benefits.
The Vice-Chair concluded that the worker was totally disabled for that three-week period and that she was entitled to full LOE benefits. After conclusion of the three-week period, she was again entitled to partial LOE benefits based on ability to work at $10.25 per hour. The minimum wage had increased to $11 per hour by that time but Board policy on LOE reviews provides that a significant change in post-injury earnings, usually 10% or greater, is considered material, for which the Board would adjust LOE benefits. In this case, the increase in minimum wage from $10.25 to $11 per hour did not meet that test. Therefore, the quantum of LOE benefits in effect prior to June 2015 should resume after the end of the three-week period of full benefits.
The appeal was allowed in part.