Highlights of Noteworthy Decisions

Decision 434 21
26/04/2021
R. Salisbury
  • Loss of earnings {LOE} (self-employment)
  • Suitable occupation

At the time of the accident in 2012, the worker was employed full time as a car hauler/truck driver and also earned uninsured income as the part owner of a farm business. He continued to work in the farm business following the accident. The ARO determined that the worker had chosen the Suitable Occupation of self-employment as a Farm Owner and could have fully restored his pre-accident earnings or fully mitigated his wage loss in the SO by using the time that he was no longer working for the accident employer to expand the farm business and increase its revenue. The worker appealed.

The appeal was allowed.
The SO of Farm Owner was not suitable for the purpose of determining whether the worker was capable of fully restoring his pre-accident earnings or fully mitigating his wage loss.
The Board's conclusion that the worker chose his own SO was not supported by the evidence. The worker had been engaged in the farming business for many years before the accident. The question was not whether the worker's continued participation in the business was an SO, but rather whether his pre-existing uninsured income from self-employment could be used to off-set LOE benefits with the expectation that he could increase his hours of work in the self-employment.
It was unreasonable to expect the worker to devote more time to the management of a business that he was already devoting significant time to prior to the accident. There was no evidence that he had increased his time spent on the business after the accident. Moreover, there was no evidence that additional time would result in increased revenue, as revenue was dependent upon other factors such as market conditions, available land, and capital investment.
The Board was directed to perform a WT assessment and determine appropriate LOE benefits following that assessment.