Highlights of Noteworthy Decisions

Decision 2356 18
L. Petrykowski
  • Loss of earnings {LOE} (deemed earnings) (relocation) (out of province)

The worker suffered a low back injury in September 2002. The Board granted the worker a 30% NEL award for chronic pain disability. In Decision No. 476/15, the Tribunal found that the worker was entitled to LOE benefits based on ability to work part-time at minimum wage, as of March 2012.

The worker had moved to Quebec in 2005. In implementing Decision No. 476/15, the Board used the minimum wage rate in Ontario, rather than the minimum wage rate in Quebec. The worker now appealed a decision of the Appeals Resolution Officer confirming use of the minimum wage rate in Ontario.
Board Operational Policy Manual, Document No. 15-06-07, on leaving the province/country, provides that the Board will continue to issue benefit payments in the same manner as if the worker resided in Ontario, in a situation when a worker leaves the province of Ontario and where the worker is entitled to LOE benefits following the completion of a final benefit review. That was the situation in this case.
Further, the general rule in Tribunal cases is that the Tribunal uses earnings information from Ontario in calculating benefits for workers injured in Ontario. There may be compelling reasons to make an exception to this general rule but there were no such compelling circumstances in this case. The worker's decision to move may have been a logical one but it was a personal decision.
The Board correctly based LOE benefits on the minimum wage in Ontario. The appeal was dismissed.