Highlights of Noteworthy Decisions

Decision 275 19
J. Smith
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (wage loss)

The worker suffered wrist and shoulder disablement on June 1, 2009, for which the Board granted the worker a 12% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying partial LOE benefits after June 30, 2017.

The Vice-Chair accepted a proposed resolution through the Tribunal's Early Intervention process.
The worker had been earning $18 per hour at modified work, and had no wage loss. As of June 30, 2017, the employer continued to provide the modified work but reduced the worker's wages to $14 per hour.
The final review of LOE benefits was June 1, 2015. However, the worker was performing modified duties and, thus, was co-operating in the ESRTW process when the 72-month review period expired. The worker came within the exception in s. 44(2.1)(g) of the WSIA, allowing review of LOE benefits after 72 months. Section 44(2.2.4) limits that review to 24 months after the expiry of the 72-month period, which, in this case, would be June 1, 2017.
The worker's wages were not reduced until June 30, 2017. However, the employer had notified the worker by correspondence in February 2017, that her wages were being reduced to $14 per hour and that, to assist in the transition, the effective date of the new rate would not be until June 30, 2017. Thus, the worker did not actually suffer a wage loss during this transitional period but the Vice-Chair was satisfied that the hourly rate of $14 per hour reflected what the worker was able to earn performing accommodated work at the time of the final reviewability date on June 1, 2017. The Vice-Chair noted that the assessment of what the worker is able to earn (earning capacity), rather than actual earnings at the time of the final review, has been taken into account in several recent Tribunal decisions.
The Vice-Chair also noted that the ARO decision considered the worker's entitlement from June 30, 2017. However, the Vice-Chair found that the question of whether a s. 44(2.1) exemption was applicable was implicit in the ARO decision. Thus, the Vice-Chair was satisfied that the Tribunal had jurisdiction to consider entitlement to LOE benefits as of June 1, 2017.
The worker was entitled to partial LOE benefits from June 1, 2017, based on ability to earn $14 per hour. The appeal was allowed.