Highlights of Noteworthy Decisions

Decision 3362 18
R. McCutcheon - C. Sacco - M. Tzaferis
  • Statutory interpretation (principles of)
  • Loss of earnings {LOE} (disabled by non-compensable condition)

The worker suffered a low back injury in May 2008, for which the Board granted the worker a 20% NEL award. The Board identified a SEB as a civil engineering technologist, with projected earnings of $21.50 per hour and a 40-hour week. The worker started the training program around November 2009. In March 2011, he suffered a non-compensable stroke, and was unable to complete the LMR program. Effective July 2011, the Board based LOE benefits on deemed full-time earnings of $21.50 per hour in the SEB. This was continued at a review in May 2013 and at the final review in June 2014.

The worker appealed regarding the determination of LOE benefits at all three of those points in time.
Board Operational Policy Manual, Document No. 19-03-03, on determining suitable occupation, provides that an SO must be suitable and available, and sets out factors to consider in determining an SO, including functional abilities, employment-related aptitudes, available jobs with the accident employer and labour market trends. As noted in Tribunal decisions, stable pre-existing impairments are taken into consideration. However, subsequently arising impairments and any deterioration of pre-existing impairments are not taken into consideration for the purpose of determining earnings that a worker is able to earn following a work-related injury, although they are accommodated when LMR assistance is being planned and provided.
Document No. 15-06-08, on adjusting benefits due to post-accident, non-work-related change in circumstances, provides that benefits may be adjusted if a worker's loss of earnings is not solely the result of the work-related injury.
The Panel commented on use of the word "solely" in Document No. 15-06-08. The Panel noted that the Tribunal uses a test of significant contribution. Further, Document No. 19-03-03 takes into account numerous relevant factors. Therefore, there is potential conflict in these principles. The Panel stated that, to the extent that there is a potential conflict between use of the word "solely" in Document no. 15-06-08 on the one hand, and Document No. 19-03-03 and Tribunal jurisprudence on the other hand, the more specific terms of Document No. 19-03-03 should prevail of the general statements in Document No. 15-06-08. Therefore, the statement in Document No. 15-06-08 should not be interpreted narrowly to mean that LOE benefits are based only on the workplace injury without consideration of other relevant factors.
Document No. 15-06-08, on post-accident change, provides that, where a worker is permanently unable to return to the original SO, and the worker us unable to participate in further WT activity, the benefit should be adjusted to the original SO earnings. The Panel found it necessary to examine carefully the surrounding evidence to determine the amount the worker would have been likely to be able to earn but for the non-compensable stroke.
The worker's compensable low back injury was associated with significant physical restrictions that limited the nature of work he would have been able to perform. It seemed that at least some work of a civil engineering technologist would take place at construction sites. It was likely that some aspects of the occupation of civil engineering technologist would have exceeded the worker's physical restrictions and that he would have required accommodation to perform that occupation.
The worker experienced difficulties with back pain and concentration during the LMR program, although he was making reasonable progress while in the program. The Panel found that the worker's back injury and vocational characteristics were barriers to achieving full-time work in the SO on a consistent basis. The Panel concluded that the worker was only likely to be able to sustain part-time work of 20 hours per week in the SO.
Document No. 19-03-03 provides for use of updated entry-level earnings if the worker is acquiring a new skill set or entering a new field. On the evidence, the appropriate entry-level earnings in July 2011 was $16.92 per hour. The worker was entitled to LOE benefits as of July 2011 based on earnings of $16.92 per hour for 20 hours per week.
Evidence also indicated that, at the time of the review in May 2013, updated entry-level earnings were $13 per hour. As of May 2013, the worker was entitled to LOE benefits based on earnings of $13 per hour for 20 hours per week.
Document No. 18-03-06, on final LOE benefit review, was applicable to the final review in June 2014. Where the final review occurs before the worker is able to find a job, and entry-level earnings were used to determine post-injury earnings, updated entry-level earnings are used to pay to LOE benefit. Accordingly, as of June 2014, the worker was entitled to continuation of LOE benefits based on earnings of $13 per hour for 20 hours per week.
The appeal was allowed.