Highlights of Noteworthy Decisions

Decision 422 13
E. Smith
  • Time limits (appeal) (implementation of Board decision)
  • Earnings basis (dependency benefits)
  • Loss of earnings {LOE} (retirement)

A retired worker was diagnosed with colorectal cancer in 2002. He died in 2005. The Board granted LOE benefits from 2002 to 2005 and survivor benefits based on the earnings of a fully qualified worker. The employer appealed.

The Board decision allowing entitlement was dated in July 2007. A further letter in September 2007 described the dollar amount of benefits being granted but did not describe the basis for the calculations. When the employer became aware that the calculation of these benefits had been put in issue in Tribunal decisions, it wrote to the Board questioning the amounts paid. The Board confirmed the payments in a letter dated August 2010. That letter identified a time limit to appeal in February 2011. The employer met that time limit.
The worker submitted that the time limit should run from the date of the Board's letter in September 2007, and that the employer should not be granted an extension of the time to appeal. The Vice-Chair found that the letter in September 2007 did not constitute a Board decision for the purpose of addressing the benefit entitlements raised in this appeal. The claims adjudicator may have assumed she was merely implementing the prior Board decision but, in fact, she was determining important adjudicative matters without indicating that that was the case. If implementation of a decision involves further adjudicative assumptions and determinations that have not been communicated, then there has been no effective Board decision on the matters. The first decision to meet the standard was the decision in August 2010. The employer appealed that decision within the time limit.
On the merits, the Vice-Chair applied prior Tribunal decisions and concluded that the retired worker did not suffer a loss of earnings and was not entitled to LOE benefits from 2002 to 2005, and that survivor benefits should be based on the statutory minimum
The appeal was allowed.