Highlights of Noteworthy Decisions

Decision 1594 22
R. Andal
  • Consequences of injury (iatrogenic illness) (treatment) (surgery)
  • Loss of earnings {LOE} (older worker)
  • Loss of earnings {LOE} (eligibility) (impairment)
  • Loss of earnings {LOE} (older worker) (after age 65)

The issue under appeal was whether the worker was entitled to Loss of Earnings (LOE) benefits for a right shoulder injury from the date of the January 23, 2020 right shoulder surgery. The worker had been denied LOE benefits following the surgery because he was more than 65 years old at that time, which exceeded the age restriction in section 43.

The appeal was denied.
The Vice-Chair found that the worker had incurred loss of earnings from January 23, 2020 to April 17, 2020, as a result of the compensable accident. Next, it had to be decided whether the age and time restrictions in subsections 43(1)(b) and 43(1)(c) applied so as to preclude payment of benefits in this case. The worker's representative put forth several arguments in support of the worker.
The Vice-Chair determined that there was no authorization to override the specific provisions of section 43. Section 2(1) defines "accident" as "a chance event occasioned by a physical or natural cause." In the worker's case, the date of injury was the date of his accidental fall that caused the right shoulder injury, not the date of surgery. The date of injury for the purposes of section 43 was April 22, 2013. Under these circumstances, section 43(1)(b) clearly precluded payment of LOE benefits after August 2017, when the worker turned 65. As the worker was 67 when he incurred the compensable loss of earnings, no LOE benefits were payable.