Highlights of Noteworthy Decisions

Decision 3147 17
24/11/2017
E. Kosmidis
  • Loss of earnings {LOE} (review) (final)
  • Board Directives and Guidelines (LOE) (worker not earning at time of determination)

The worker suffered a neck injury in March 2007, for which the Board granted the worker a 17% NEL award. The Board identified a SEB as a customer service representative. At the final LOE review, the Board granted LOE benefits based on deemed earnings at the median wage rate for the SEB of $15 per hour. The worker appealed.

After completing training, the worker found a job as a customer service representative. She was earning $12 per hour when she was laid off in 2013, before the final LOE review. She was not working at the time of the final review.
Board policy contemplates two situations when conducting the final LOE review after completion of an LMR plan. In one situation, the worker has a job, in which case LOE benefits are based on actual earnings. In the other situation, the review occurs before the worker is able to find a job, in which case entry level wages are used when the LMR plan was designed to provide the worker with new skills.
The LMR plan was designed to provide the worker with new skills in this case. However, neither of the two circumstances in Board policy fit the worker, as she had been working but was laid off before the final review. In the circumstances, and considering the worker's personal and vocational characteristics, the worker's LOE benefits at the final review should be based on deemed earnings of $12 per hour, rather than entry level or median wage.
The appeal was allowed in part.