Highlights of Noteworthy Decisions

Decision 394 22
E. Kosmidis - C. Sacco - S. Roth
  • Loss of earnings {LOE} (review) (after completion of LMR plan)
  • Suitable occupation

The worker appealed the suitability of a farmer and farm manager/poultry farmer SEB designation and his quantum of LOE benefits. The worker suffered from physical and psychological restrictions due to his cervical spine and psychotraumatic disability, which resulted in a combined 25% NEL award.

The worker began raising free range chickens on his property. He started with 12 and worked up to 50. He testified that he involved his wife and children to promote a healthier lifestyle for his family. He paused this activity for a period of time as he was unsuccessful in getting the applicable zoning by-law changed to allow him to continue raising chickens on his property, so he later moved to a new residence and was able to recommence this activity. He described raising free range chickens as "low maintenance", with his wife and children doing the heavy maintenance work if required. He testified he had not earned any income from raising chickens and was not involved in any barter system, but donated what he could to the church, community, and anyone in need.
The Panel reviewed documentation which showed that based on the worker's documented physical restrictions, his psychological condition, the lack of labour market support and the limited number of opportunities available within the worker's geographic region, the Case Manager had recommended no LMR activity for the worker. Furthermore, despite cognitive-behavioral therapy, the worker continued to experience chronic sleep disruption, associated fatigue, and difficulty with driving. One of the worker's doctors stated that the worker's lack of restorative sleep was a significant barrier in returning to work, and he had now reached MMR.
The Panel accepted the worker's evidence that he spent less than an hour per week tending to the chickens, and that the activities described did not exceed his restrictions. It was also accepted that the chickens were used to feed his immediate family, and he had never used them as a commercial enterprise.
The Panel found that the worker was incapable of preforming any work with remuneration due to his compensable injury. Accordingly, the Panel found that the SO of Farmers and Farm Managers/Poultry Farmer, NOC 8251 was unsuitable and concluded that the worker was entitled to full LOE benefits.