- Evidence (surveillance)
- Loss of earnings {LOE} (employability)
A construction worker injured his knee in 2008 and was granted a NEL award of 18%. He was later granted entitlement for psychotraumatic disability with a NEL award of 45%. He appealed a decision of the Appeals Resolution Officer that he was able to earn minimum wage in the SO of Other Elemental Services.
The appeal was allowed. The Board relied on video surveillance evidence to conclude that the worker was capable of sedentary activity. However, the surveillance captured a moment in time and was not helpful in determining the worker's psychological state of functioning. Board policy states that surveillance evidence should be used with caution and in conjuction with the medical evidence on file. A suitable occupation needs to be available, meaning that the employment must exist in the labour market and the worker has a reasonable prospect of obtaining employment. Applying the real world/real employer test, the worker did not have a reasonable prospect of obtaining employment given his physical and psychological difficulties and his vocational characteristics. The worker was unemployable and was entitled to full LOE benefits.