Highlights of Noteworthy Decisions

Decision 2335 17
J. Smith
  • Loss of earnings {LOE} (review) (after seventy-two months)

The worker suffered a knee injury in 2001, for which the Board granted the worker a 20% NEL award. The worker was also receiving a 10% pension for a low back disability related to an accident in 1980.

At the final LOE review in 2007, the worker was not working due to a plant shutdown from 2007 to 2008. The Board granted full LOE benefits. He returned to work in 2009, and continued to receive full LOE benefits. At the end of 2011, the worker underwent back surgery due to deterioration of his back condition, and he retired, on the advice of his doctor, out of concern for re-injury.
The Board denied LOE benefits after the worker retired in 2012. The worker appealed.
The Board reviewed LOE benefits in 2012, after the final LOE review, based on deterioration of the worker's condition. However, it was the low back condition related to the 1980 accident that deteriorated. Review of LOE benefits due to deterioration after the final 72-month review is only allowed when the deterioration is related to the injury for which the worker has entitlement under the WSIA. Since the deterioration in this case was related to the 1980 back injury, and not the 2001 knee injury, there was no basis to review the worker's LOE benefits.
The worker was entitled to restoration of his full LOE benefits. The appeal was allowed.