Highlights of Noteworthy Decisions

Decision 717 13
E. Smith
  • Jurisdiction, Tribunal (final decision of Board)
  • Time limits (appeal) (date of Board decision)
  • Loss of earnings {LOE} (retirement)

In October 2007, the Board granted the worker entitlement for colorectal cancer, with an accident date in October 2003. The worker had retired by the accident date and there was no evidence of an intention to return to work. In a further letter in November 2007, the Board granted the worker LOE benefits from October 2004 to November 2004. When the employer became aware that the granting of these benefits had been put into issue in a number of Tribunal decisions, the employer wrote to the Board. In a letter in August 2010, the Board confirmed the payment of benefits, and identified a time limit for appeal in February 2011.

On appeal, the Appeals Resolution Officer found that the employer, who had appealed within six months of the August 2010 letter, met the time limit to appeal, but confirmed the payment of the LOE benefits.
The worker appealed the decision of the ARO finding that the employer met the time limit. The employer appealed the decision to confirm the granting of LOE benefits.
Board policy defines a decision letter as one that explains the rationale, outlines the information used to make a decision and advises the parties of their right to object.
The letter in October 2007 addressed only initial entitlement. The letter in November 2007 did address the rationale for granting LOE benefits in a way that was sufficient to meet the criteria of Board policy. None the less, the Vice-Chair found that the November 2007 letter did not constitute a decision for the purposes of the time limit. The letter did not describe itself as a decision and it did not inform the employer of a time limit to appeal. The November 2007 did not meet the terms of Board policy and did not constitute an appealable decision.
The first letter to meet the criteria of the policy was the letter of August 2010. The employer met the time limit to appeal from that letter. Accordingly, the worker's appeal was dismissed.
The Vice-Chair agreed with the analysis in Tribunal decisions and found that the retired worker was not entitled to LOE benefits as there was no basis to find that there was a loss of earnings. Accordingly, the employer's appeal was allowed.