Highlights of Noteworthy Decisions

Decision 503 10 R
G. Dee (FT)
  • Reconsideration (issue setting)
  • Reconsideration (jurisdiction)

The worker suffered a whiplash injury to her neck in October 2004, in a compensable motor vehicle accident. The Board granted a 17% NEL award for permanent impairment. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for shoulder and elbow injuries. Decision No. 503/10 found that the worker had entitlement for the neck and shoulder injuries and then referred the matter back to the Board to determine the nature and extent of benefits.

The worker applied for reconsideration of Decision No. 503/10. The worker submitted that the hearing panel failed to deal with the issue of ongoing entitlement to LOE benefits.
The hearing panel identified the issues on the appeal as entitlement for the neck and shoulder, relying on the Hearing Ready letter. However, the worker had identified LOE benefits as an issue in the Notice of Appeal. Thus, there was an error in the original decision regarding identification of the issues on appeal. However, the Vice-Chair found that, even if the hearing panel had correctly identified the issues on appeal, it still retained the discretion to return benefit entitlement issues back to the Board. Further, returning the benefit entitlement issues to the Board would have been a reasonable and appropriate approach to adopt in the circumstance of the appeal.
A decision regarding entitlement to LOE benefits will usually require resolution of a number of issues that will usually be resolved in a particular order. This has been referred to by the Tribunal as sequential decision making. In this case, it would be necessary to determine whether modified work offered by the employer for the worker's neck injury was suitable given the additional areas of entitlement. It might also be necessary to determine whether the work remained available. If not, consideration would have to be given to the worker's self-directed LMR activities, whether she was working and what she was earnings. None of these sequential issues would have been decided by the Board.
Given the large number of sequential issues that would need to be decided in order to determine entitlement to LOE benefits, it is likely that the hearing panel would have referred the determination of the nature and extent of benefits back to the Board, even if the hearing panel had correctly identified the issues on the appeal.
Accordingly, the application to reconsider was denied.