- Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)
The worker appealed a July 11, 2023 decision denying LOE benefits for shoulder surgery on April 18, 2011, on the basis that the worker was not working or seeking work at that time, and thus had no work-related LOE. The issue under appeal was whether the worker was entitled to LOE benefits following that surgery.
The Panel allowed the appeal.The worker testified that prior to surgery he stopped searching for work due to pain and upcoming surgery, and post-surgery experienced significant pain and limited use of his right arm. Medical reports and physiotherapy records indicated inability to work until physiotherapy ended on September 30, 2011. The Panel found it had jurisdiction to review LOE benefits after the final review because the worker sustained a significant temporary deterioration in April 2011. It concluded the worker had a full loss of earnings from April 18, 2011 to September 30, 2011 due to incapacity to work caused by the compensable shoulder condition. Citing previous Tribunal decisions, the Panel applied the principle that pre-accident earnings are the reference for LOE and that a worker not working or seeking work at surgery time can still have a compensable loss of earnings if capacity to work was lost due to surgery and recovery. The worker's compensable deterioration led to temporary total loss of earning capacity.