- Loss of earnings {LOE} (review) (final)
The worker appealed a decision of the ARO, which confirmed the lock-in date of August 31, 2018 for the worker's final review establishing his benefits based on an hourly wage of $21 an hour as a truck/delivery driver with a temp agency. The worker obtained employment as a delivery driver from August 10, 2018 to August 17, 2018, earning $15 an hour at full-time hours. At the end of August 2018, the worker obtained employment with another employer performing similar work earning $21 an hour on a full-time basis. The case manager completed the final review on August 31, 2018 and locked-in the worker's benefits at that time based on a rate of $21 an hour and a 40-hour work week. It was the case manager's position that the final review did not have to be completed on August 15, 2018, but rather it had to be done "by the end of the 72nd month" which, according to the case manager, meant that it could be completed at the end of August 2018.
The Vice-Chair allowed the appeal.The case manager's interpretation of section 44(2) was inconsistent with the legislation and Board policy. In accordance with subsection 44(2), the Board is not permitted to review payments more than 72 months after the date of accident, not the month of the accident. Section 44 is consistent with the guidance provided in OPM Document No. 18-03-06, "Final LOE Benefit Review". OPM Document No. 18-03-06, "Final LOE Benefit Review" states that: "If the worker has co-operated in a WT plan and returns to work in a job not identified in the SO, the WSIB uses actual employment earnings if the WSIB is satisfied: a) the earnings come reasonably close to the SO-identified earnings, and, b) represent the same or similar future earnings potential." The earnings in the SO were identified as $14 an hour. And the worker, since 2014, had been earning $15 an hour. The Vice-Chair was satisfied that the worker's earnings as of August 15, 2018, of $15 an hour, came reasonably close to the $14 an hour identified for the SO and represented the same or similar future earnings potential based on the nature of employment (i.e., temp agencies). The worker's hourly earnings at the time of the final review, $15 an hour, were also consistent with his earnings from 2014 to 2018 and there was no evidence of significance that the worker was underemployed.OPM Document No. 18-03-06 states: "If the WSIB determines there is a change to account for in the LOE benefit (e.g., post-injury earnings have changed), the LOE benefit is recalculated prior to being locked in. Otherwise, it is locked in as is." The Vice-Chair noted that the mere fact that a worker earns more or less after the lock-in date does not meet any of the exceptions set out in subsection 44(2.1) to allow for a review of the worker's LOE benefit rate after the final lock-in date (see Decision No. 1673/23). The Vice-Chair found that the absence of any such exception was purposeful on the part of the legislators and was confirmed in the above-noted quote from OPM Document No. 18-03-06. Therefore, the worker was entitled to partial LOE benefits at the time of the final review based on his actual earnings as of August 15, 2018 of $15 an hour and a 40-hour work week to the age of 65.