Highlights of Noteworthy Decisions

Decision 3034 17
G. McCaffrey
  • Loss of earnings {LOE} (lay-off)
  • Loss of earnings {LOE} (termination of employment)
  • Loss of earnings {LOE} (review) (after seventy-two months) (co-operating in ESRTW)

The worker suffered bilateral shoulder injury on September 25, 2005, for which the Board granted the worker a 10% NEL award. The worker returned to work with the accident employer. He was temporarily laid off on March 7, 2013. The lay-off was made permanent on September 5, 2013. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits as of March 7, 2013.

The final LOE review date was September 25, 2011. However, the Vice-Chair found that the worker and employer were co-operating in ESRTW when the 72-month period expired, in that the worker returned to work at no wage loss but was provided with accommodation due to restrictions resulting from the compensable injury. Thus, the worker came within the exception in s. 44(2.1)(g) of the WSIA, allowing review of LOE benefits more than 72 months after the injury. Pursuant to s. 44(2.4.4), when s. 44(2.1)(g) applies, the Board may review LOE benefits up to 24 months after the expiry of the 72-month period. Therefore, the worker's LOE benefits could be reviewed until September 25, 2013. Both the temporary lay-off and the permanent lay-off were within that time frame.
The lay-off on March 7, 2013, was considered temporary in nature. It was for economic reasons. It also affected other employees. The worker was not in receipt of partial LOE benefits at the time of the lay-off. His impairment was relatively minor, as reflected by his 10% NEL award and by his performance of modified work that did not require a high degree of accommodation. The general rule in Board Operational Policy Manual, Document No. 15-06-02, for entitlement following short-term and long-term work disruptions, is maintenance of benefit status. The worker did not meet the exceptions to the general rule. Accordingly, the worker was not entitled to LOE benefits as of March 7, 2013, during the temporary lay-off.
As of the permanent lay-off on September 5, 2013, the worker was entitled to partial LOE benefits. His shoulder impairment was relatively minor but, within the context of his occupation as a machine operator, his physical restrictions limited the jobs within the broad category of machine operator that he could sustain. The worker's employability was affected by his work-related impairment and associated restrictions. The worker met the criteria of Document No. 15-06-03, for entitlement following work disruptions in the form of permanent lay-offs.
The appeal was allowed in part.