- Loss of earnings {LOE} (employability)
- Loss of earnings {LOE} (lay-off) (permanent)
- Available employment (COVID-19 closure)
The issue under appeal was entitlement to full Loss of Earnings (LOE) benefits from August 14, 2020 to January 2022. The worker had sustained an ankle fracture for which he received a 2% Non-Economic Loss (NEL) award.
The appeal was denied. The Panel found that the worker was appropriately paid partial LOE benefits during this period reflecting his accident-related loss of earnings, representing the difference between his earnings as a bus driver (pre-accident job) and the earnings he was capable of recovering as a shipper receiver (the suitable occupation). The Panel took judicial notice of the COVID-19 pandemic. It was acknowledged that, at times, employment was restricted to only essential services due to public health directives. The worker's inability to secure employment post August 2020 was at least in part due to the global pandemic and its impacts on the economy, and was unrelated to his work injury. The worker's testimony was unequivocal that the ankle injury did not impact his ability to perform his job duties as a shipper/receiver.It was acknowledged that the worker would have faced some barriers in securing employment. However, in the Panel's view, for additional LOE benefit entitlement to flow, those barriers must include the work-related occupational restrictions. It is accepted case law that there must be a nexus between the work injury and the wage loss to establish entitlement. The worker's accident related wage loss had already been recognized through the provision of partial LOE benefits. The Panel did not find that the worker was disadvantaged in securing employment to a degree greater than a similarly aged non-injured worker. Accordingly, the worker did not have entitlement for full LOE benefits from August 14, 2020 to January 2022.