- Downside risk
- Loss of earnings {LOE} (level of benefits)
- Loss of earnings {LOE} (concurrent employment)
- Suitable occupation
- Loss of earnings {LOE} (mitigation)
The issues under appeal were: a) the suitability of the SO of Customer and Information Services Representative; b) the quantum of the worker's Loss of Earnings (LOE) benefits from August 1, 2011 to January 1, 2012; and, c) the quantum of the worker's LOE benefits from January 1, 2013 to January 1, 2014.
The Vice-Chair allowed the appeal, in part.The worker requested entitlement to full LOE benefits, minus actual earnings, for the periods in question. After the hearing, the Vice-Chair determined that there was a downside risk in this appeal, in addition to the one identified at the outset of the hearing (a chance that the entitlement that the worker had been previously awarded by the WSIB would be reduced). The Vice-Chair applied the reasoning of Decision No. 1729/18R which states that in the case of a quantum issue, natural justice requires a more explicit notice of a downside risk, so that the worker and her representative may have the opportunity to address these concerns.Decision No. 1729/18R also notes that notice of a downside risk is required if it becomes apparent after closing submissions that such a risk exists. Such notice is meant not as a pre-judgement of the merits of the appeal, but so that the decision-maker, as part of the hearing process, can ensure that the parties are aware of the case that they must meet, and that they have had sufficient opportunity to do so. The Vice-Chair agreed with this reasoning. In this instance, in particular, the downside risk was not apparent until after the worker had provided specific testimony during the Tribunal hearing. The Vice-Chair was satisfied that the notice of downside risk represented a continuation of the hearing process, rather than an adjudicative pre-determination of the merits of this appeal. The Tribunal made sufficient efforts to contact the worker's representative regarding the downside risk in this appeal. The Vice-Chair accepted that the worker had a temporary significant deterioration in the right shoulder. The worker was able to continue working as a registered nurse (RN). However, the portion of the worker's loss wages stemming from the termination of her employment with the accident employer continued to be due to an employment situation, after August 2011, rather than her compensable injury. The quantum of the worker's LOE benefits between August 2011 and December 4, 2013, was limited to the income lost from her concurrent employment at the psychiatric hospital. The worker was able to fully mitigate the loss of income from her concurrent employment from August 2011 to December 4, 2013, and there was no wage loss from the loss of the worker's concurrent employment during this time.As the worker was able to fully mitigate the wage loss from her concurrent employment through employment as an RN, the determination of an alternative SO was not necessary. As the worker also returned to work as an RN after the recovery period for her compensable surgery, the Vice-Chair was satisfied that it would have been unreasonable to expect the worker to seek employment in an alternative SO. Consequently, the Vice-Chair found that the SO of Customer and Information Services Representative was not suitable. With respect to the quantum of the worker's LOE benefits after December 5, 2013, the Vice-Chair was satisfied that the worker was likely unable to continue working as an RN due to a temporary significant deterioration in her compensable injury, and that she was entitled to partial LOE benefits from December 5, 2013 to January 1, 2014, based on her actual earnings.