Highlights of Noteworthy Decisions

Decision 1513 21
A. Patterson - M. Trudeau - C. Salama
  • Deductions (severance pay)
  • Loss of earnings {LOE} (termination of employment)
  • Loss of earnings {LOE} (level of benefits) (hours of work)
  • Loss of earnings {LOE} (eligibility) (impairment)
  • Available employment (COVID-19 closure)

The issues under appeal were: a) entitlement to LOE benefits from October 24, 2016 to November 20, 2016; b) entitlement to LOE benefits from January 30, 2017 until June 7, 2018, and from July 21, 2018 until October 31, 2018; and, c) entitlement to LOE benefits beyond the closure of WT services on October 2, 2020.

The Panel concluded that OPM Document No. 14-02-05 was not applicable to the determination of the worker's entitlement to LOE, and that it was inappropriate to deduct "pay in lieu of notice" from her entitlement to LOE. Although the "pay in lieu of notice" constitutes "insurable earnings" with respect to the calculation of the employer's premiums, it does not constitute "earnings in relation to the accident". "Pay in lieu of notice" relates to the contractual obligation of an employer under employment law, which exists independently of the accident or workplace injury. There was no basis to reduce the worker's entitlement to LOE benefits by the "pay in lieu" sums.
The Panel found that the worker was entitled to partial LOE based on a capacity to work 20 hours per week in an elemental service occupation without retraining, during the periods prior to and following the Function and Pain Program. The Panel noted that the medical evidence suggested that the worker was capable of performing modified duties.
The worker was provided with, and began participating in WT services in March 2019 for retraining in the SO of Web Designer and Developer. The worker successfully completed the academic component of the WT services. In March 2020, the worker was participating in the Job Search Training portion of Board-sponsored WT services when "stay-at-home" restrictions related to COVID-19 were declared by the provincial governments of Ontario and Quebec.
The Panel concluded that where the evidence demonstrates that a causal relationship between the compensable injury and a period of loss of earnings exists, the contribution to the loss of earnings by an external event does not operate to exclude entitlement to loss of earnings. The Panel found that the restrictions related to COVID-19 continued to impact economic activity in the worker's geographic area as of and after October 2, 2020. Although the SO was suitable and the worker was able to perform full-time work in that SO, the Panel finds that the availability of employment in the SO remained limited and, combined with her limited experience, impacted the worker's capacity to secure employment. The worker also did not qualify for the CERB benefit. The Panel concluded that the worker was entitled to LOE benefits beyond October 2, 2020. The duration of full LOE benefits beyond October 2, 2020 was remitted back to the Board.