Highlights of Noteworthy Decisions

Decision 1052 19 R
14/04/2020
G. Dee
  • Procedure (reconsideration) (application and merits together)
  • Reconsideration (consideration of evidence)
  • Loss of earnings {LOE} (employment status at time of compensable surgery)

The worker applied for reconsideration of Decision No. 1052/19, in which the original vice-chair found that the worker was not entitled to LOE benefits after December 2015, because she refused suitable work.

The worker submitted that she should be entitled to full LOE benefits until she reached age 65 in September 2016. Also, the worker submitted that the original decision erred in not restoring full LOE benefits when the worker underwent surgery in April 2016.
The Vice-Chair found no reason to disturb the finding in the original decision that the worker was performing suitable work before December 2015. However, the Vice-Chair noted that the worker was only working six hours per day prior to December 2015, due to her compensable injury. Where suitable work would provide earnings that are equal to, or in excess of, pre-injury earnings, a worker will not be entitled to LOE benefits. However, in a case such as this where the suitable earnings were less than pre-injury earnings, LOE benefits are only reduced. The Vice-Chair concluded that the worker was entitled to partial LOE benefits after December 2015, based on the earnings that she was achieving prior to December 2015, in the modified work that she was performing for six hours per day.
The original decision found that the worker withdrew from the work force and, therefore, was not entitled to benefits after the surgery in April 2016.
The issue of whether a worker who has withdrawn from the work force and then undergoes surgery for a compensable condition is entitled to LOE benefits for the period of recovery has been the subject of numerous decisions. In recent decisions, the predominant approach has been to award LOE benefits for the period of recovery. The Tribunal decision most frequently referenced for this approach is Decision No. 3131/16. This approach would appear, however, to be a departure from past practice at the Tribunal and this departure, although predominant, has not been universally adopted, as in Decisions No. 1900/18 and 2086/18.
If it had been established that the worker had chosen to leave the work force, the Vice-Chair would still have been reluctant to overturn the conclusion in the original decision that the worker was not entitled to LOE benefits following her surgery. Although the result would be contrary to the recent predominant approach on this issue, there was support in some recent decisions, so that the result might not be found to constitute an error. However, the Vice-Chair did not accept that the worker chose to leave the work force.
Rather, the Vice-Chair was of the view that the worker chose to stop performing a particular job while still in the recovery phase from her injury. Her circumstances were not settled enough to determine that she had decided to leave the work force when she stopped working in December 2015. Following the surgery, the worker was incapable of work as a result of her compensable injury. The worker was entitled to full LOE benefits from April 2016 to September 2016.
The application to reconsider was granted. On the merits, the appeal was allowed in part.