Highlights of Noteworthy Decisions

Decision 1471 22
E. Kosmidis
  • Availability for employment (medical authorization)
  • Available employment (offer from accident employer)
  • Board Directives and Guidelines (earnings basis) (recalculation)
  • Earnings basis (student)
  • Loss of earnings {LOE} (eligibility) (impairment)
  • Worker (student)

The issues under appeal were: a) should the worker be considered a student at the time of his injury; and, b) whether the worker was entitled to full LOE benefits from February 14, 2019.

The appeal was allowed. The Vice-Chair found that the worker was a student who intended to attend school in January of 2019 and was unable to do so because of his December 4, 2018 workplace injury.
Tribunal decisions have found that a worker can be considered a student even though the college program has not yet started. In Decision No. 1391/03, the individual had commenced a short period of employment with the accident employer two days before his compensable accident. The Vice-Chair concluded that the worker met the definition of student and that the worker's situation was analogous to a summer student who had taken, with the knowledge of the accident employer, a very short term period of employment until his college course commenced. In Decision No. 1731/16, the Vice-Chair found that the worker, who had received a college acceptance and was due to start the next month, was a student.
Furthermore, OPM Document No. 18-02-08, "Determining Average Earnings- Exceptional Cases" provides that the average earnings of a worker, who is a student, are recalculated if the worker is unable to complete his or her education as a result of the injury, when the worker would have completed his or her education if the injury had not occurred, or in any other case, when the worker has ended his or her education. Thus, the worker was entitled to a redetermination of his earnings basis. The Vice-Chair also found that the worker was entitled to full LOE benefits from February 14, 2019. He had not been offered modified work, either orally or in writing. The worker was also involved in extensive and ongoing medical rehabilitation.