Highlights of Noteworthy Decisions

Decision 1141 13
R. Nairn
  • Board Directives and Guidelines (FEL) (review)
  • Future economic loss {FEL} (retroactivity)
  • Future economic loss {FEL} (review) (final)

The worker suffered an ankle and back injury in May 1997, for which he was granted a 24% NEL award. The Board originally denied an R2 FEL award in January 2004, due to failure of the worker to co-operate and provide required information. In July 2010, the Board granted the worker an R2 FEL award. The worker appealed a decision of the Appeals Resolution Officer denying payment of the R2 FEL award retroactive to January 2004.

Board policy requires the final FEL review to occur before the end of the 60th month after the initial FEL determination. In preparation, at 55 months after the initial determination, the Board requests that the worker provide earnings and health information. If the worker fails to respond, FEL benefits are withheld at 58 months after the initial determination, and are not restored until a full review occurs, at which time the FEL benefits may be paid retroactively to the point when withheld. However, if the final review does not occur by the 60th months, the FEL benefits cannot be restored retroactively.
In this case, the worker did not receive the request for information until the 58th month (October 2003) and he did not receive the "warning" of having his benefits discontinued at the 58-month point. However, the Vice-Chair noted that the Board sent the worker another request in December 2003, and the Board did not make the final FEL review and confirm denial of R2 FEL benefits until February 2004. The Vice-Chair found that the worker had adequate warning that there would be problems if he did not submit the required information by the appropriate deadline.
In 2010, the worker submitted earnings information for the period from 2000 to 2009. After receiving the information, the Board granted the R2 FEL award in July 2010. There was no dispute in this case that the worker was entitled to the R2 FEL award. The issue involves the commencement date for the R2 award. Board policy states that, if the R2 review does not occur before the 60th month, the FEL award cannot be restored retroactively.
The Vice-Chair noted that the worker's conduct in this case amounted to egregious non-co-operation. It amounted to actively frustrating the process. He was warned numerous times of the need to co-operate and of the consequences of failing to co-operate.
The Vice-Chair found no basis to grant the R2 FEL award retroactively, either on the basis of the policy that the Tribunal was required to apply or on the basis of the merits and justice. The appeal was dismissed.