Highlights of Noteworthy Decisions

Decision 2948 18
D. Revington - K. Soden - M. Ferrari
  • Work transition plan (cooperation)
  • Loss of earnings {LOE} (lay-off) (permanent)

The worker suffered fractures of his leg in September 2012, for which the Board granted the worker a 4% NEL award. He returned to significantly modified work with pre-accident wages in November 2012, and, accordingly, did not receive LOE benefits. In August 2016, he was permanently laid off due to a shortage of work. The worker appealed a decision of the Appeals Resolution Officer denying full LOE benefits from August 2016 to May 2017.

After the lay-off, the worker approached the Board. The WT specialist identified an SO as an administrative clerk, noting that the SO appeared to be appropriate and that the worker had the skills and abilities to secure employment in that occupation in his geographical area. However, it would have resulted in a significant wage loss. The WT specialist recommended that the worker identify a different SO that would reduce his wage loss.
The Board determined that the worker was entitled to partial LOE benefits after August 2016 based on ability to earn $12 per hour in the SO of administrative clerk.
The worker investigated potential training programs and kept the WT specialist informed. In April 2017, the worker advised the WT specialist that he had been accepted for a college training and internship program in supply chain and logistics. The WT specialist approved the worker's choice, and the worker began the program in May 2017.
Board Operational Policy Manual, Document No. 15-06-03, on entitlement following permanent work disruptions, provides that the worker would be entitled to full LOE benefits while participating in work reintegration services identified as being required to assist the worker's return to the labour market in the identified SO. The Board found that, since the SO of administrative clerk had been identified, the worker's LOE benefits should be based on deemed earnings as an administrative clerk. The Panel found the Board's reading of the policy to be unduly restrictive in the circumstances. The SO of administrative clerk had been identified but the WT specialist immediately noted that it would result in significant wage loss, and decided in concert with the worker, that a new SO was required. The Panel found that the SO of administrative clerk was not intended to be the actual, or operative, SO for the worker.
The worker co-operated with the WT specialist and was looking for work and a new program. The Panel concluded that the worker was entitled to full LOE benefits during the period in question. The appeal was allowed.