- Loss of earnings {LOE} (eligibility) (impairment)
- Suitable occupation
- Available employment (local labour market)
- Available employment (COVID-19 closure)
- Jurisdiction, Tribunal (sequential issue)
The Board granted the worker entitlement for work-related injuries to his bilateral wrists and elbows. The Board also recognized the permanent impairments caused by these injuries and confirmed a 9% Non-Economic Loss (NEL) award. The issues under appeal were: a) the suitability of the SO of Customer Service Representative; and, b) if the SO is not suitable, the quantum of the worker's LOE benefits as of August 31, 2020.
The appeal was allowed. The SO was not suitable. The worker was entitled to full LOE benefits as of August 31, 2020. The issue of the duration of these benefits was returned to the Board for further adjudication, subject to the usual rights of appeal.In accordance with OPM Document No. 19-02-01, for the SO to be suitable, it must exist within the labour market to the extent that the worker has a reasonable prospect of obtaining employment. The Panel found that the SO was not a suitable occupation for this worker for the period of time when the COVID-19 pandemic negatively affected the availability of the SO in the general labour market. Due to the negative impact of the pandemic on the availability of the SO, the worker's physical limitations as a result of his compensable conditions, and limited education and work experience in the field of customer services, the worker was at a disadvantage when the customer service employment opportunities were scarce. As a result, the worker did not have a reasonable prospect of securing employment within the SO or in other similar suitable work, subsequent to the completion of his WT plan, as of August 31, 2020. Accordingly, the worker was entitled to full LOE benefits as of August 31, 2020. The issue of the duration of those benefits was referred back to the Board to determine, subject to the usual rights of appeal. In Decision No. 1513/21 it was found that more decisions have preferred the approach where, as long as the evidence demonstrates that a causal relationship between the compensable injury and the period of loss of earnings exists, then although the pandemic is an external event, it does not preclude entitlement to LOE benefits. The Panel noted that the worker's educational level and limited work experience in the field of customer service would have precluded him from some of the positions within the SO, irrespective of the effect of the pandemic.