- Loss of earnings {LOE} (retirement)
The worker sought entitlement to partial Loss of Earnings (LOE) benefits from February 10, 2020 to May 17, 2020, and full LOE benefits from May 18, 2020. The worker was granted entitlement for PTSD arising from his work as a firefighter.
The Panel allowed the appeal, in part. The worker had partial LOE entitlement from February 10, 2020 until July 31, 2020. The worker did not have LOE entitlement past July 31, 2020.It was not necessary to determine whether the worker was capable of working more hours per week than he did work, or whether the work that might have been made available was unsuitable because it was demeaning or non-productive. Even if the work the worker was performing was suitable, and even if the worker was capable of performing a greater number of hours of work between February and July 2020, the employer did not offer the worker additional hours to work and require the worker to work those hours in order to be paid. The worker therefore did not refuse any additional work hours. The return-to-work plan entered into with the WSIB was only a plan on paper. It was not a plan that was adhered to by either workplace party and could not be used as a substitute for determining the number of hours of work actually made available to the worker by the employer. The worker's LOE entitlement during the period of time from February 10, 2020 until July 31, 2020 was therefore to be based upon the actual hours he worked during this period of time and the expected earnings from those hours worked. The Panel found that the reduction of earnings after July 31, 2020 was the result of the worker's retirement and was not significantly contributed to by the worker's permanent psychological impairment. Even accepting that the worker had intended to work past the age of 60, there was a lack of evidence that his permanent PTSD symptoms had caused him to experience an injury-related wage loss following the date of his mandatory retirement on July 31, 2020.