Highlights of Noteworthy Decisions

Decision 688 12
E. Smith
  • Future economic loss {FEL} (review) (after sixty months)
  • Future economic loss {FEL} (wage loss)
  • Loss of earnings {LOE} (wage loss)

The worker suffered compensable accidents in 1984 and 1994 while working for the first employer and in 2007 while working for a different employer. After the 2007 accident, the Board redetermined the worker's NEL awards resulting from the 1984 and 1994 accidents. The Board then reviewed the worker's final FEL award (after R2) and granted a full FEL award as of 2008, which it attributed to the 1994 accident. The first employer appealed the increases in the NEL awards and the attribution of the deterioration to the 1994 accident.

The worker was a 25% pension for neck injury suffered in the 1984 accident and a 45% NEL award for low back, thoracic back and hip injuries suffered in the 1994 accident. In 2007, the Board increased the 45% pension to 49% and the 25% pension to 30%.
In the 2007 accident, the worker suffered a shoulder injury for which he was granted a 10% NEL award.
On the evidence, the Vice-Chair confirmed the increases in the pensions.
Because of the 4% deterioration in the worker's condition, the worker was entitled to review of this final FEL benefits under s. 44(2.1)(c) of the WSIA. However, the fact that a review is permitted does not mean that an increase in FEL benefits will necessarily follow. The Vice-Chair found that the deterioration in the worker's low back symptoms that was recognized by the increased NEL award occurred prior to the 2007 accident. The worker continued to work for many months after that deterioration, until the shoulder injury. The fact that FEL benefits may be reviewed when a NEL award is increased does not provide an adjudicator with an open-ended discretion about how to attribute the costs of the claim. The attribution must be based on evidence that the wage loss in issue is the result of the increased NEL award.
Wage loss benefits are not, generally, attributed to different claims, based on which claim is responsible for the greater proportion of the compensable injuries. If a worker is able to work with a pre-existing condition and then becomes unable to work because of a subsequent injury, the wage loss benefits are attributable to the last injury. The Board's SIEF policy then addresses who the accident employer is provided with relief to reflect the role of the pre-existing condition. The last injury may be minor as compared to the prior injuries but the worker is still entitled to benefits under that claim.
In order to find that the wage loss suffered after the 2007 accident was not payable under that claim, it would be necessary to find that the 2007 injuries were not a significant causal factor in that wage loss. That was not the situation in this case, in which the worker was able to work with the pre-existing neck and back injuries, even though he had a very serious level of impairment, until his medical condition was compounded by the 2007 accident. The 2007 accident was not insignificant or immaterial.
The Vice-Chair concluded that the wage loss after 2008 was attributable to the 2007 and not the 1994 accident.
The appeal was allowed in part.