Highlights of Noteworthy Decisions

Decision 1878 21
K. Iima
  • Availability for employment (pregnancy)
  • Loss of earnings {LOE} (eligibility) (impairment)

On May 7, 2012, the then 22-year-old electrical apprentice was driving a company vehicle on a highway when she rounded a curve and noticed a vehicle stopped ahead in her lane. The worker attempted to avoid the disabled vehicle by changing lanes and steering around it when she saw that there was a vehicle stopped in one of the other lanes, and two passengers of that vehicle had exited their car and were standing in the middle of the highway. The worker's vehicle struck these individuals, resulting in two fatalities. Entitlement for PTSD as a result of the May 7, 2012 accident was recognized by the Board.

The worker appealed a decision denying her entitlement to LOE benefits from May 8, 2012 to October 1, 2017 on the basis that there was no clinical authorization to support the worker's lost time from work or evidence that established that the worker's symptoms prevented her from continuing to complete her apprenticeship.
The Vice-Chair found that the evidence supported that the worker was not initially capable of pursuing her apprenticeship after her employment with the accident employer ended in October 2012, due to the significant psychological difficulties she experienced as a result of the May 7, 2012 accident. Further, the worker was only able to complete her apprenticeship because she was offered the opportunity to do so in a rural setting where there were fewer triggers, and because she worked for an individual who was understanding of her situation and allowed her the flexibility to cope with unexpected trauma triggers.
The worker made reasonable self-directed efforts to secure suitable employment/apprenticeship training, improve her employability, and mitigate her loss of earnings, as demonstrated by her successful completion of her apprenticeship training, qualification as a journeyman electrician, and full-time employment as a journeyman electrician. The psychological impairment prevented the worker from pursuing apprenticeship placements in urban areas, and suitable employment was no longer available with the accident employer as of mid-October 2012.
With respect to the period of the worker's maternity leave from September 2016 to October 1, 2017, the worker chose to take maternity or paternity leave following a workplace injury. Tribunal cases have generally held that any loss of earnings suffered flows from the personal choice to take the leave, rather than the workplace injury. While in some circumstances, the evidence may show that the workplace injury was a significant factor in the decision to take the parental leave, in this case, the worker did not testify that she took a maternity leave because of her injury.
The worker was entitled to LOE benefits from May 8, 2012 to the start of her maternity leave in September 2016, subject to actual earnings. The worker was not entitled to LOE benefits during her maternity leave from September 2016 to October 1, 2017 when she returned to full-time work.
The appeal was allowed in part.