Highlights of Noteworthy Decisions

Decision 2293 08 R
M. Crystal
  • Impairment of earning capacity
  • Permanent disability
  • Reconsideration (error of law)

The worker suffered a knee injury in 1984. In Decision No. 2298/08, the vice-chair hearing the appeal found that the worker was entitled to a pension for right knee disability. The employer applied for reconsideration of Decision No. 2293/08.

The employer submitted that, under s. 43(1) of the pre-1985 Act, entitlement to a pension requires more that simply finding that a worker has a physical or functional abnormality or loss, and that it is also necessary to determine that the nature and degree of the injury is related to an impairment of earning capacity.
The Vice-Chair disagreed with the submission of the employer. Entitlement to a pension is established solely by demonstrating that the worker's injury resulted in permanent disability. The Vice-Chair noted that the issue of the quantum of the award was not an issue at the original hearing. Issues associated with the rating schedule and, in particular, whether it is appropriate to base the quantum of a pension on the worker's personal loss of earning capacity or the loss of earning capacity experienced by the average worker, are issues that go to quantum and not to entitlement. Accordingly, the original vice-chair did not commit an error by refraining from addressing those matters, since the only issue related to pension entitlement and not quantum.
The application to reconsider was denied.