Highlights of Noteworthy Decisions

Decision 2373 12
E. Smith
  • Supplements, transitional provisions (multiple supplements)

The worker was injured in an explosion in 1976. He suffered a knee injury in 1986, for which he was granted a 5% pension. In Decision No. 1662/98, the Tribunal found that the worker had entitlement for psychotraumatic disability resulting from the 1976 accident. In Decision No. 3054/01, the Tribunal found that the worker was entitled to a 25% pension for psychotraumatic disability, with arrears to 1978.

The Board paid a supplement under s. 147(4) of the pre-1997 Act, related to the 1986 accident. The worker appealed a decision of the Appeals Resolution Officer denying a second supplement related to the 1976 accident.
Board policy provides that workers may receive more than one s. 147 supplement: if, following receipt of a s. 147(4) supplement, a worker is granted a permanent disability award under another claim, the worker is considered for a supplement under the other claim.
Decision No. 2117/12 interpreted the language of the policy to refer only to a pension award granted after the date of the first s. 147(4) supplement. The Vice-Chair agreed with the substance of Decision No. 2117/12 but noted that Decision No. 2117/12 does not consider whether a worker might be entitled to two s. 147(4) supplements when deterioration is recognized in the other claim beyond the pension level that had previously been recognized at the time the first supplement had been awarded in the first claim. There may be evidence that the deterioration has caused a new incremental wage loss which further eroded the worker's ability to approximate pre-1989 earnings. The wording of Board policy might be broad enough to extend to that situation. However, it was not necessary to decide that issue in this case.
In this case, the 25% pension was awarded as of 1978 but entitlement to the pension was not recognized until after the 1998 Tribunal decision. Therefore, when the Board awarded the s. 147(4) supplement under the 1986 claim, in 1992, it was not aware that the worker also had a 25% psychotraumatic disability as a result of the 1976 accident. That fact was not taken into consideration.
The question is whether the Board policy is intended to provide for multiple supplements when the new pension is recognized under another claim after a first supplement has been awarded but when the arrears date for the new pension award is prior to the date that the first supplement was recognized. The Vice-Chair concluded that the arrears date is determinative and not the date the pension was granted. Entitlement to benefits cannot depend on the vagaries of adjudication and adjudicative delay.
The relevant determination must reflect the arrears date of the new pension award. If the arrears date is prior to the date of the first supplement, that the worker has not been granted permanent disability benefits which "follow" the reception of the first supplement, within the terms of the Board policy.
The Vice-Chair also found that s. 147(4) is best read to provide for only one s. 147(4) supplement for a worker's compensable disabilities as they existed as of the date that the section was introduced in 1989. The likely intent of the legislation was that only one supplement would be payable with respect to the worker's cumulative disabilities when first assessed for a supplement under the provision.
In any event, the Vice-Chair found that the evidence did not establish that the worker had a wage loss prior to the 1986 accident.
The worker was not entitled to a second s. 147(4) supplement. The appeal was dismissed.