Highlights of Noteworthy Decisions

Decision 953 22
M. McLoughlin
  • Availability for employment (motivation)
  • Available employment (offer from accident employer)
  • Loss of earnings {LOE} (retirement) (early) (severance package)
  • Loss of earnings {LOE} (eligibility) (impairment)
  • Loss of earnings {LOE} (mitigation)

The issues under appeal were: entitlement to LOE benefits from November 10, 2011, and recognition of permanent impairment and entitlement to a non-economic loss ("NEL") award for the low back.

The appeal was allowed in part.
The Vice-Chair found, on a balance of probabilities, that the worker's aggravation injury had likely resolved by no later than April 16, 2012, and that the worker's back condition had returned to its pre-July 19, 2011 state by that time. The worker did not establish that she suffered from a work-related permanent worsening of her pre-accident lower back condition. There was no clear medical opinion that indicated that the July 2011 work injury permanently increased the worker's pre-existing low back impairment. Accordingly, the worker was not found to have entitlement for a permanent impairment, and this portion of the appeal was denied.
Furthermore, the worker in this instance had accepted a resignation buy-out offer from her employer effective November 10, 2011, but claimed entitlement to LOE benefits from and after that date through until age 65. It was noted that the effect of a worker's retirement or resignation on his or her entitlement to receive loss of earnings benefits under the WSIA has been considered in the past by this Tribunal, with one of the most often cited cases being Decision No. 323/10. Having reviewed Tribunal jurisprudence, the Panel in Decision No. 323/10 noted that prior Tribunal decisions that address this issue could be organized under three general categories as follows: a) situations where suitable and sustainable employment was clearly available at the time of the worker's retirement; b) situations where the suitable employment was clearly not available at the time of the worker's retirement; and c) situations where there is some uncertainty as to the availability of suitable and sustainable employment at the time of the worker's retirement, and it is alleged the worker's retirement interfered with the employer's ability to offer suitable employment.
In the Vice-Chair's view, the manner in which the three general categories of cases are typically determined was entirely consistent with the fundamental principle that resignation or retirement is not to be a bar to some level of ongoing LOE benefits, provided that suitable work was not available to the worker. If suitable modified work was available, then the decision to resign or take retirement is in essence a decision on the part of the worker to decline suitable work, with the result being that any loss of earnings thereafter cannot be considered to be a "loss of earnings as a result of the injury", within the meaning of section 43(1) of the WSIA (see, for example, Decision No. 2184/11). It was noted that this case most closely resembled the third general category referenced in that decision.
Based on the worker's testimony and the medical evidence, the Vice-Chair was satisfied that she was likely capable of continuing to perform the modified duties that she had undertaken since April 2010 beyond November 10, 2011 and through age 65, had the modified duties been available to the worker after November 10, 2011 and had she not accepted the buy-out package. It was found that the worker likely had no intention to permanently retire from the workforce in November 2011. The Vice-Chair was satisfied that the worker's decision to accept the November 2011 buy-out package was motivated by her appreciation for her ongoing limitations arising from her compensable injury, and her genuine belief that the availability of suitable modified duties with the employer was uncertain going forward. Therefore, there was a causal link between the worker's compensable aggravation injury and her loss of earnings subsequent to November 10, 2011.
It was determined that at the time the worker accepted the buy-out package on November 10, 2011, the worker's work-related impairment was ongoing and had not resolved and no suitable work was offered to the worker. The worker also made reasonable efforts to secure suitable employment. The Vice-Chair concluded that the worker was entitled to receive 100% LOE benefits during the period from November 10, 2011 through April 16, 2012, less any earnings received. The Vice-Chair also agreed with and adopted the analysis found in the majority of Tribunal decisions to the effect that severance or termination pay does not constitute post-injury earnings from employment (see, for example, Decision No. 1159/21). Accordingly, this amount was not to be deducted from the full LOE benefits to which she was otherwise entitled.