- Non-economic loss {NEL}
- Permanent impairment {NEL}
- Loss of earnings {LOE} (lay-off) (permanent)
- Sacroiliac joint dysfunction
The issues under appeal were: a) entitlement for a low back injury beyond May 14, 2018, including recognition of a permanent impairment and entitlement to a Non-economic Loss (NEL) award, under Claim A; and, b) entitlement to LOE benefits following a work disruption (lay-off) on March 20, 2020, under Claim A.
The appeal was allowed.The worker developed a secondary low back condition as a result of a compensable right ankle injury, diagnosed as "SI [sacroiliac] dysfunction." The Vice-Chair found that the worker's compensable low back condition did not resolve in May 2018 and resulted in a permanent impairment. The worker was entitled to a NEL determination.Next, it was noted that a work disruption beyond three months may continue to be treated as a temporary lay-off if "there is a strong degree of certainty that the recall will occur." There was no dispute that the worker's lay-off on March 20, 2020 was initially due to economic and business circumstances as a result of the COVID-19 impact on the travel (airline) industry, and not due to the worker's work-related injury. However, the worker's lay-off continued well beyond three months, although the employer had suggested that employees would be recalled once the effects of the pandemic on the industry had lessened. As of an arbitrator's decision on January 12, 2022, when it was confirmed that the employer-employee relationship was permanently severed, the employer had not recalled the worker for almost 20 months. Although the pandemic was a unique circumstance, a lay-off of 20 months was well past the general time frame for a temporary lay-off, and there was no evidence to establish that a recall would be possible. Therefore, OPM Document No. 15-06-03, pertaining to permanent work disruptions, was applied. There was minimal evidence to support that the employer would have had sustainable suitable work for the worker. There was no evidence to establish that the worker had intended to withdraw himself from the labour market in general. In addition, the worker's compensable conditions and need for accommodations impacted the employer's ability to recall the worker and made it difficult for suitable work to be identified subsequent to March 20, 2020. As such, the Vice-Chair determined that the arbitrator's decision did not preclude the worker from benefits and the application of OPM Document 15-06-03 in this case. This was not a situation where the worker had a choice to continue working with the employer. It was seen as unlikely that another employer would provide the same degree of accommodations that had been provided to the worker prior to the lay-off. A position similar to the worker's "runner" position likely did not exist in the general labour market, and was not the worker's SO in the general labour market. The worker also had limited transferrable skills. The evidence established that the worker was unemployable without Board assistance from January 2022, and a SO could not be identified as of this date. The Vice-Chair found that the worker was entitled to full LOE benefits from January 12, 2022 to the date of a RTW assessment under section 42. The worker's LOE benefits entitlement was also reviewable, pursuant to section 44(2.1)(b), which allows a review after 72 months when a worker is in an incomplete Labour Market Re-entry (RTW) plan when the 72-month period expires.