Reference no: EM133855894

Question

We find that the suitable employment described in the November 2010 RTWS memo and accepted as suitable by the worker at that time were not available to the worker after his layoff. The worker testified that he applied for supervisory jobs after his layoff, that he had two interviews for such positions, and that he was successful in his third application interview but was unable to sustain the job because of the physical duties. We find the worker had limited transferable skills beyond driving as he had been a driver for 35 years. He was 59 years old when he obtained his current suitable job in November 2012. We find, in these circumstances, that the likelihood of the worker finding full-time suitable employment was very limited. We find the worker was a credible witness and that he made a reasonable effort to mitigate his wage loss after his October 2011 layoff by seeking suitable employment. In summary, and for the reasons given, we find that full LOE benefits are in order from October 7, 2011, to November 2012, when he commenced his current employment, based on the pre-termination wage, less income received for the short period of employment after October 7, 2011, and before the start of his current job. The severance benefits from the accident employer are not earnings from post-injury employment and so are not to be considered in the LOE calculation for this period. Partial LOE benefits are in order from the commencement of current employment.