Highlights of Noteworthy Decisions

Decision 1507 22
K. Jacques(PT)
  • Loss of earnings {LOE} (level of benefits) (hours of work)
  • Suitable occupation

With respect to the preliminary issues in this matter, the Vice-Chair determined that in Decision No. 2057/19, that the worker could work 15 hours per week, was only applicable until the date of an LMR assessment. After that date, 15 hours was a Board decision and therefore appealable. A work transition plan created prior to Decision No. 2057/19 did not satisfy the requirement to do a post-decision LMR assessment. The main issues under appeal were: a) the suitability of the Suitable Occupation (SO) of Cashier (NOC 6611) working 15 hours per week, earning $14.00 per hour; and, b) the quantum of loss of earnings (LOE) benefits as of the February 22, 2021 final review.

The appeal was allowed. It was found that working 15 hours per week as a cashier was unsuitable for the worker. The quantum of LOE benefits as of February 22, 2021 was to be calculated based on full LOE.
The Vice-Chair found that the SO of cashier was unsuitable. It was noted that when the worker was working 15 hours per week in an accommodated role for the accident employer, he was not actively working for that duration. The worker was on site for that time but spent a significant amount of time lying down in his car. The employer and worker agreed to this arrangement. The Vice-Chair stated that such an arrangement cannot simply be expanded on to apply to a new employment situation. In addition, the hours spent at a work site did not equate to the number of hours that a worker was capable of working. In this case, the worker was only able to work for two hours during those three hour shifts. Working 15 hours per week as a Cashier (NOC 6611) was therefore unsuitable for the worker, and it was found that the worker's LOE benefits should be adjusted to full LOE.
With respect to the quantum of LOE as of February 22, 2021, Board policy directs that a worker's loss of earnings (LOE) will not be reviewed more than 72 months after the date of injury. There are exceptions to that 72 month deadline. One of the exceptions is when the worker has a return to work plan that is not yet completed. The worker had a return to work plan, hence the Board chose a final review date later than 72 months post injury. As of February 22, 2021, the worker was not working. As 15 hours per week in the identified SO was not suitable, as of February 22, 2021, the worker was entitled to full LOE.