Highlights of Noteworthy Decisions

Decision 1787 13
S. Darvish
  • Board Directives and Guidelines (overpayment)
  • Consequences of injury (altered gait)
  • Overpayment
  • Pensions (arrears)
  • Pensions (assessment) (back)

The worker suffered a right knee injury in 1982. She suffered a further right knee injury and right arm injury as a result of a fall in 1985 when her right knee gave way. The Board granted an 8% pension for the knee and a 4% pension for the arm. Later, the pension for the knee was increased to 12% and then to 35%. The worker appealed a decision of the Appeals Resolution Officer on a number of issues.

The worker claimed entitlement for the left knee and right hip as secondary conditions as a result of altered gait. The Vice-Chair found that the worker had entitlement for the left knee but not for the right hip.
When the Board granted the pension for the knee and arm, it paid arrears back to the date of the accident in 1982. In 1997, it became aware that the pension for the arm should only have been paid to 1985. The Board then collected the overpayment from the worker. The Vice-Chair noted that recent Tribunal decisions have found that an overpayment is created not from when the excess amount was paid but, rather, from when the Board determines that there was an overpayment. The applicable Board policy is the policy at the time the overpayment was created. In this case, the Board became aware of the overpayment in 1997 and moved promptly to collect the overpayment. The Vice-Chair concluded that the Board was entitled to recover the overpayment.
The Vice-Chair confirmed the arrears date in 1996 for increase in the pension to 35%. The Vice-Chair granted the worker entitlement for psychotraumatic disability. The Vice-Chair also confirmed a 15% pension for low back disability resulting from an accident in 1988.
The appeal was allowed in part.