- Loss of earnings {LOE} (eligibility) (impairment)
- Suitable occupation
- Suitable employment (modified duties)
- Suitable employment (factors other than physical capability) (commute)
- Recurrences (compensable injury) (foot)
The issues under appeal were as follows: a) whether the worker was entitled to full Loss of Earnings (LOE) benefits from July 1, 2016; b) whether the worker was entitled to full LOE benefits from February 20, 2020; and, c) whether the worker sustained a recurrence on February 20, 2020 of his right foot injury (right foot crush injury with neuritis).
The Vice-Chair allowed the appeal, in part.The Vice-Chair found that the SO of Security Guard, after the worker's LMR plan was completed in 2011, was not suitable for this worker. In the Vice-Chair's view, a three hour drive each way to get to a job was unreasonable. Based on OPM Document No. 19-03-03, "Determining Suitable Occupation", a SO does not necessarily need to be in close proximity to the worker. An SO can be a significant distance away from the worker's residence as long as the commuting pattern is reasonable and consistent with the worker's limitations arising from the compensable permanent impairment. Tribunal decisions have generally determined that daily commutes by car over one hour and 20 minutes may not be considered "reasonable" within the context of OPM Document No. 19-03-03.The modified work offered to the worker was therefore unsuitable and the worker's loss of earnings was related to his compensable right foot injury. The Vice-Chair found that the worker was entitled to full LOE benefits from July 1, 2016, less any earnings from employment, to January 21, 2018, the day that he started his employment on a bridge project. As of that date, the worker's right foot injury and restrictions were no longer a significant contributing factor in the worker's loss of earnings and the ability to maintain employment with this employer.According to OPM Document No. 15-02-05, "Recurrences", a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that: a) does not result from a significant new incident/exposure, and, b) is clinically compatible with the original injury/disease. The Vice-Chair found that the medical evidence did not support a February 20, 2020 deterioration in the worker's right foot condition. Accordingly, while the worker stopped working as of February 20, 2020 and sustained a wage loss from that date, this wage loss was not as a result of his compensable right foot condition, as required by section 43(1) of the WSIA.