- Permanent impairment {NEL} (redetermination) (significant deterioration)
- Loss of earnings {LOE} (employability)
- Suitable occupation
The worker appealed the following issues: a) entitlement to a redetermination of the non-economic loss (NEL) award for the low back and right knee condition; b) suitability of the identified suitable occupation (SO) of Production and Logistics Coordinator (Logistics); and, c) quantum of loss of earnings (LOE) benefits from June 12, 2021.
The Panel allowed the appeal.The worker's permanent impairments had significantly worsened as of July 16, 2021, and he was entitled to a NEL redetermination. The worker attended college courses for Logistics training. His training was impacted by COVID-19 which meant that some of his courses had to be done online instead of in-person. The worker testified about having to do a significant amount of his schooling online and that he did not have the aptitude for online schooling. The worker also had trouble accessing the electronic versions of the textbooks. In addition, an internship was a mandatory aspect of the diploma program, but the worker was unable to secure an internship. Special dispensation was granted by the College and Ministry to grant the Logistics diploma to the worker, regardless of the incomplete requirements. As such, despite the granting of the diploma, the worker did not actually complete the full program. The Panel noted that, in addition to physical restrictions, aptitude, personality, age, and general employability must all be taken into account in considering an SO. Further, there may be situations in which a worker receiving a diploma due to a Ministerial special dispensation is viewed as akin to completing the full requirements. For example, if a special dispensation is granted because a prior experience was considered to be the equivalent of having completed a required internship. In this case, however, the special dispensation was granted in the absence of a comparable experience standing in lieu of that internship. The Panel concluded that Production and Logistics Coordinator (Logistics) was not a suitable occupation for the worker. Accordingly, it was not appropriate to base the worker's LOE benefits on a deemed Logistics job. The employer submitted that the worker could have worked at a customer service job. However, his experience was more than 25 years ago and for a short duration. Also, with a Board identified SO found to be unsuitable, the Panel could not merely substitute an alternative SO in hindsight. Substituting customer service as an alternative SO would not be realistic or appropriate for the circumstances. The worker had notable physical restrictions, and his permanent impairments had significantly worsened as of the summer of 2021. The Panel found that the worker was competitively unemployable. The worker was entitled to full LOE benefits from June 12, 2021 until age 65.