Highlights of Noteworthy Decisions

Decision 123 18
05/03/2018
B. Pollock
  • Employment (seasonal)
  • Loss of earnings {LOE} (lay-off)
  • Board Directives and Guidelines (LOE) (lay-off)

A grass cutter at a golf course was injured in August 2015. The grounds-keeping crew at the golf course, including the worker, was laid off at the end of the season in October 2015. The crew was recalled in April 2016, but not the worker. The Board granted LOE benefits until October 2015, and after April 2016. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits from October 2015 to April 2016.

Board Operational Policy Manual, Document No. 15-06-02, on entitlement following temporary work disruptions, defines a temporary work disruption as one generally expected to last less than three months. However, a temporary work disruption includes a seasonal lay-off, regardless of the length of the off-season.
The policy provides for payment of additional LOE benefits if there is evidence that the worker would seek new employment to restore the loss of earnings during the temporary work disruption and if the work-related injury had an impact on the worker's ability to earn income from new employment during the disruption period.
The ARO found no evidence to satisfy the first criterion, namely, that the worker was seeking new employment during the work disruption. However, the Vice-Chair noted that the policy provides that the Board generally maintains LOE benefits that a worker is receiving at the start of a temporary work disruption. The Vice-Chair found that the provisions regarding payment of additional LOE benefits apply to workers who are partially impaired and fit for work at or subsequent to the start of the temporary work disruption and who want to claim LOE benefits beyond the level of LOE benefits they were receiving when the disruption began.
In this case, the worker was not seeking additional LOE benefits. Rather, he was seeking LOE benefits at the level he was receiving prior to the start of the temporary work disruption. The general rule is to maintain LOE benefits at that level. The Vice-Chair concluded that the worker was entitled to LOE benefits from October 2015 to April 2016 at the level he was receiving until the start of the work disruption in October 2015.
The appeal was allowed.