NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim Nos.: [X] Written submission [X] Date of Decision: August 5, 2010 Decision: The appeal of the March 26, 2010 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner David Pearson.
2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker had a work-related back injury on May 12, 2008. He had experienced three previous compensable back injuries in 1987, 1988 and 1990. The Board provided temporary earning-replacement benefits during the time the Worker was off work and receiving treatment. The Board determined that the Worker had a five percent permanent medical impairment ( PMI ) as a result of his injury, and that he could not return to work in his pre-accident labouring job. As the Worker could not return to pre-accident work, the Board provided an additional period of compensation while the Worker participated in vocational rehabilitation services. The Worker obtained a Heavy Equipment Operator certificate, and sought out work in this field. At the time the Worker s extended earnings-replacement benefit ( EERB ) became effective in November 2009, the Worker had yet to find a job in this field. The Board determined that work as a Heavy Equipment Operator was suitable and reasonably available to the Worker, and estimated him capable of earning full-time entry level wages in this field for five months of the year, and employment insurance benefits for the remainder of the year. After subtracting post-accident income from these sources, the Worker still had a loss of earnings, and the Board awarded him a partial EERB and permanent impairment benefit based on the five percent PMI rating. The Worker appealed the decision to award him a partial EERB, and the finding that he had a five percent PMI. A Hearing Officer denied the Worker s appeal on both grounds in a March 26, 2010 decision. The Worker appealed the Hearing Officer s decision to the Tribunal. At the Tribunal, the appeal proceeded by written submissions. The Worker s Adviser provided submissions on July 2, 2010. The Adviser indicated that the Worker did not want to pursue an appeal of the PMI rating, and that the only issue on appeal was the EERB calculation issue. No other submissions or evidence was submitted by any participant. ISSUE AND OUTCOME: Was the Worker s EERB properly decided? Yes, seasonal employment as a heavy equipment operator was reasonably available to the Worker. His EERB was properly decided on the basis of deemed earnings from seasonal work in this occupation and receipt of employment insurance benefits in the off- This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.
3 season. The Worker is not entitled to TERB or a temporary earnings loss supplement to increase his EERB until such time as he finds work as a heavy equipment operator. ANALYSIS: The Workers Compensation Act, S.N.S. 1994-95, c.10, as amended (the Act ) applies to this appeal. Section 187 of the Act requires me to give the Worker the benefit of the doubt, which means that if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. The Worker seeks a finding that his EERB was not correctly calculated, specifically, that he should not have been deemed capable of earning income as a heavy equipment operator because that work is not reasonably available in the Worker s home area. An EERB is payable when a worker experiences a loss of earnings that can be attributed to a compensable permanent impairment. Essentially, the Board compares pre-accident earnings to post-accident earnings. If the amount earned after an accident is less than beforehand, an EERB is most likely payable. In determining post-accident earnings, the Board can use a worker s actual earnings or estimated earnings that a worker could make in suitable and reasonably available employment. The Board can also consider potential employment insurance benefits, where the employment is less than full-year. The suitability of an occupation pertains to whether a worker has the requisite education, experience and skill to perform the job without causing injury to the worker or a co-worker. (Policy 3.5..1) The occupation is reasonably available when there are sufficient job opportunities in a worker s geographic area, and that worker has a reasonable chance of securing one of those positions. (Policy 3.5.2) The Worker does not take issue with the suitability of the work as a heavy equipment operator. Neither does he take issue with the occupation being reasonably available in his home area, at least during the usual seasonal term. What he takes issue with was the Board s finding that the occupation was reasonably available at the time the EERB became payable on November 23, 2009. He says that at that time, no work can be found because seasonal jobs opportunities would have finished for the year, and would not resume until the spring of 2010. In support of the assertion that no work was available at that time, the Worker supplied a letter from a union representative for the union to which he belongs, and from whom he is called for work opportunities. The representative indicated in a December 18, 2009 letter
4 that earthmoving jobs usually slow down this time of the year... we are expecting that our seasonal working members will soon be laid off. When work picks up in the coming spring, we hope to dispatch members to work at that time. The Board considered the seasonal nature of the work in estimating the income the Worker could make. It reasoned that the Worker would be able to work at his occupation for five months, and that he would be on seasonal layoff for the remainder of the year, and be in receipt of employment insurance benefits. The Board considered both sources of income in calculating the Worker s EERB. Essentially, the remedy sought is to provide full compensation without reduction for deemed earnings from November 23, 2009 until such time as the work begins again in the spring of 2010. An EERB is a long-term benefit. It provides compensation for loss of earnings over the long-term. It is a relatively inexact tool in the sense that it bases the EERB amount on circumstances that exist at a snapshot in time. Once an EERB is determined, it is fixed in place for 36 months, with variation only permitted in exceptional circumstances. It would not be unusual or unexpected for a worker to earn either more or less than the Board estimated in the EERB decision. Neither type of variation, however, would warrant a change in the EERB during the 36 month term. I appreciate the Worker s point of concern. He could not find work at the time his EERB became effective. He says this was because seasonal jobs were mostly finished for the season at that time. The union representative s letter supports that view. Neither could he take advantage of employment insurance benefits at that time because he had yet to obtain a work term that he needed to qualify for those benefits. The Worker s problem, however, will only persist in the first year of his EERB. Provided he finds employment in the spring of 2010, he will qualify for employment insurance once the season ends. It would be too fine a point to say that seasonal employment is not reasonably available simply because one is looking at a time that is considered off-season. Whether a seasonal job is reasonably available should not depend on whether one is looking during the season or during the off-season. Availability should be assessed more broadly, perhaps on a yearly or longer basis. The statistical information on which the Board relies bases employment prospects and the likelihood of finding work in a field over the longer term, and does not vary availability based on the time of year one is looking. I find that the Worker s EERB was properly decided. The job of heavy equipment operator is reasonably available, notwithstanding the fact that the jobs might have been near the seasonal layoff point at the time the EERB became effective.
5 Not all losses are compensated in the workers compensation system. While there may have been some temporary disadvantage due to the timing of the EERB coming into play, that does not diminish that such work was reasonably available. If I were to allow the appeal, it would be open to anyone estimated with seasonal earnings to argue the job was not reasonably available if the EERB decision were issued during an off-season. That circumstance would lend unpredictability to the process of EERB determination, and would necessarily increase system costs by increasing worker compensation for that initial off-season period. I see no other mechanism to compensate for the loss identified. The Worker s vocational rehabilitation benefits had come to an end, as his training was complete and his job search was unsuccessful. This was the correct time to change the Worker s benefit from a TERB to an EERB. It would have been inappropriate use of TERB, in my view, if it were maintained from November 2009 to the spring of 2010 simply to cover the off-season period. Similarly, s. 73A allows the Board to top up an EERB with a temporary earnings loss supplement when there is a temporary loss of earnings after an EERB is in place. In my view, it would be inappropriate to use that section to top up the Worker s EERB to compensate him for the off-season period, or because he was unable to collect employment insurance benefits. Rather, this section is intended for use where there is a temporary loss of earnings occurring after an EERB is in place, and which was not taken account of in the EERB decision. The present problem falls outside that circumstance. The Worker s appeal is denied. CONCLUSION: The Worker s appeal is denied. Seasonal employment as a heavy equipment operator was reasonably available to the Worker. His EERB was properly decided on the basis of deemed earnings from seasonal work in this occupation and receipt of employment insurance benefits in the off-season. The Worker is not entitled to TERB or a temporary earnings loss supplement to increase his EERB during the initial off-season period. TH DATED AT HALIFAX, NOVA SCOTIA, THIS 5 DAY OF AUGUST, 2010. David Pearson Appeal Commissioner