Highlights of Noteworthy Decisions

Decision 1347 22
02/02/2023
A. Durette
  • Loss of earnings {LOE} (review) (after seventy-two months) (co-operating in ESRTW)
  • Loss of earnings {LOE} (lay-off) (short-term)

The worker appealed a decision of the ARO, which concluded that the worker had no entitlement to Loss of Earnings (LOE) benefits from February 10, 2020 to May 15, 2020 due to a temporary work disruption that started on February 7, 2020. The worker had received entitlement for a right humerus fracture, radial nerve palsy, post-traumatic stress disorder, and tennis elbow as a secondary injury.

The appeal was denied.
The worker was performing modified duties up to his February 7, 2020 lay-off as part of his work transition plan. The worker was generally cooperative at all material times. The worker's formal RTW plan was closed in June 2016 and the Final LOE Review was completed in the same month. Section 44(2) of the WSIA provides that the Board shall not review a worker's LOE benefit payments more than 72 months after the date of injury. Section 44(2.1)(g)(i) provides an exception for a post-72-month LOE benefits review when the worker and employer are cooperating in ESRTW; however, provides that reviews under section 44(2.1)(g) may only occur up to 24 months after the 72 month lock-in date. OPM Document No. 18-03-06, "Final LOE Benefit Review", also states that the final review must be completed by the end of the 24-month period [after the expiry of the 72-month period], or sooner if the health care measures or WR activities have been completed.
The worker's 72-month period was completed on June 13, 2016. The exception for reviewing LOE benefits would only be available until June 13, 2018, more than a year before the 2020 lay-off. As the February 7, 2020 lay-off began more than 24 months after the June 13, 2016, 72-month review, accepting that the worker was still engaged in a RTW plan on his lay-off date, there was no statutory authority under the WSIA to allow a review of the worker's LOE entitlement as of the lay-off date.
The worker's representative submitted that the worker was entitled to LOE benefits under OPM Document No. 15-06-02, "Entitlement Following Temporary Work Disruptions". This OPM document provides for additional LOE benefits in the case of a temporary work disruption when two criteria are met. OPM Document No. 15-06-02 states as follows: "Even if the conditions set out in this policy are met, the WSIB generally cannot provide additional benefits during a work disruption that starts after the final LOE review." The Vice-Chair confirmed there was no statutory authority to review LOE benefits on the basis of cooperation with ESRTW for periods later than June 13, 2018. The worker was therefore not entitled to a LOE benefit review, due a temporary work disruption in 2020, under OPM Document No. 15-06-02.