Highlights of Noteworthy Decisions

Decision 2762 18
02/01/2020
R. McCutcheon
  • Labour market re-entry {LMR} (suitability of program)
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Board Directives and Guidelines (LOE) (worker earning at time of determination)
  • Loss of earnings {LOE} (review) (final)

The worker was a machine operator. He suffered a low back injury in October 2002, for which the Board granted the worker a 32% NEL award. The worker appealed a decision of the Appeals Resolution Officer regarding LOE benefits at the final review in 2008, and after later deterioration of his condition.

The Board identified a SEB in quality assurance. The worker completed retraining in that field in 2007. The Board then granted LOE benefits based on deemed earnings of $10 per hour in the SEB. At the final LOE review in 2008, the worker was not working in the SEB; rather, he was working in the construction field, earning $15 per hour. The Board based LOE benefits at the final review on the worker's actual earnings of $15 per hour. In 2016, the Board granted entitlement for psychotraumatic disability, with a 20% NEL rating, resulting in a combined 46% NEL award. The Board found that the worker remained capable of full-time employment at $15 per hour.
Board Operational Policy Manual, Document No. 18-03-06, on final LOE benefit review, provides guidelines for determining LOE benefits in various circumstances. The scenarios addressed in the policy are premised on the assumption that the SEB identified by the Board was correct.
Thus, the Tribunal Chair first addressed the issue of whether the SEB was appropriate, including consideration of whether the worker was capable of full-time hours.
Board policy on determining a SEB states that a SEB represents a category of jobs suited to the worker's transferable skills, that is safe and within the worker's functional abilities, and that reduces or eliminates the loss of earnings resulting from the injury. On the evidence, the Chair found that the SEB was appropriate.
At the final LOE review in 2008, the worker was working in the construction field. He was working full-time, but it was a seasonal job. It required physical labour, which was not comparable to the more sedentary job in the SEB of quality assurance. The Chair found that the worker was unlikely to be able to sustain working at a job requiring physical labour. Further, the $15 per hour he was earning in this seasonal work did not necessarily represent his full-time wage capacity. However, there was a lack of medical evidence from that time period to support inability to secure full-time work in a more sedentary job in the SEB.
The Chair concluded that the SEB was appropriate for the worker in 2008, and that he was capable of working full-time hours in the SEB.
Board policy provides for use of actual earnings from a non-SEB-identified job if the earnings come reasonably close to the SEB-identified earnings and represent the same or similar future potential earnings.
In this case, the evidence did not support actual earnings as representing the same or future potential earnings. Accordingly, the worker was entitled to LOE benefits at the final review in 2008 based on updated entry level earnings in the SEB, in accordance with Board policy. The Chair noted that entry level earnings of $10 per hour was used by the Board in 2007 to calculate the worker's LOE benefits.
In this case, the significant deterioration (the onset of psychotraumatic disability) started in 2013. The MMR date set by the Board was May 18, 2016. After receiving treatment for the psychotraumatic disability, the worker found new employment in June 2016, working as a custodian for 27 hours per week at $21.50 per hour. The NEL for psychotraumatic disability was rated in September 2016.
The granting of entitlement for psychotraumatic disability triggered a review of LOE benefits after 72 months, under s. 44(2.1)(d) of the WSIA. Under s. 44(2.4.1), the Board may review payments within 24 months after the date on which the Board determines the degree of permanent impairment. That is the temporal end point for review. This gives rise to the question of the temporal starting point for the LOE adjustment after a NEL rating has been determined.
The Chair found that the worker's earnings as a custodian came reasonably close to the SEB-identified earnings and that they represented the same or similar future potential earnings. The worker was entitled to LOE benefits based on his actual earnings in the non-SEB work as a custodian at the post-72-month review. In the circumstances, the adjustment date for the LOE benefits should be the MMR date, shortly after which he found the employment as a custodian.
The appeal was allowed in part.