- Loss of earnings {LOE} (wage loss)
The worker started as a Registered Practical Nurse (RPN). The worker was injured while lifting a patient and received a 10% Non-Economic Loss (NEL) award for her right shoulder. The worker was unable to return to her duties as an RPN. The worker accepted an alternate position of a Health Records Clerk with the accident employer at another hospital facility, located 30 minutes away from her home. Her subsequent one hour daily commute could only be completed by driving. The employer agreed to "top up" the worker's wages as a Health Records Clerk to equal her pre-injury RPN salary once she took the Health Records Clerk position at the second location.
The worker testified that the daily commute presented some challenges, including dealing with the hazards of inclement weather. The worker applied for and accepted a suitable alternate job at the original hospital location closer to her home. The employer no longer agreed to "top up" the lower wages to match the higher pre-injury wages she earned as an RPN. The worker sought entitlement to partial Loss of Earnings (PLOE) benefits after accepting the alternate suitable job.The Vice-Chair allowed the appeal.OPM Document No. 19-02-01 states that the suitable work must be "…safe, productive, consistent with the worker's functional abilities, and to the extent possible, restores the worker's pre-injury wages." The employer's refusal to top up the worker's wage loss did not change the fact that the worker's wage loss in the alternate job was a result of her workplace injury and her inability to continue in her pre-injury job as an RPN because of the compensable shoulder injury.The worker was not voluntarily underemploying herself by taking the alternate job of Health Records Clerk at her original workplace location. It was an identical job in the determined SO. It reasonable for the worker to take the opportunity to reduce her burden by accepting a job that had the same duties and same hours with the accident employer at her pre-injury location of work. As the employer's reemployment obligation had ended in October 2018, the worker turned to the WSIB to make up the wage difference.OPM Document No. 18-03-02 states that "…[workers] who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits…" The top-up, although part of the worker's pay, was not part of the regular wages for a Health Records Clerk. Once the employer stopped paying the worker the voluntary top-up, the worker became entitled to PLOE benefits to compensate her for the wage loss from September 2020, when she accepted the Health Records Clerk position at her original workplace location.