Highlights of Noteworthy Decisions

Decision 1546 14
01/10/2014
B. Goldberg - B. Wheeler - J. Crocker
  • Board Directives and Guidelines (health care) (independent living) (arrears)
  • Board Directives and Guidelines (attendance allowance) (arrears)

The worker suffered a back and neck injury in April 2006, for which she was granted a 39% NEL award. In Decision No. 1863/10, the Tribunal found that the worker also had entitlement for psychotraumatic disability. The Board then determined that the worker reached maximal medical recovery for the psychiatric condition in November 2010, and assessed the worker for a 21% NEL award.

The total NEL award for organic and non-organic impairment was 60%, thus entitling the worker to an independent living allowance (ILA) and a personal care allowance (PCA). The Board originally granted the ILA with arrears to November 2010, which was the MMR date. The worker requested arrears to the date of the accident. The Appeals Resolution Officer found that the worker should receive the ILA from July 2009, which was when the Board determined that the worker was unemployable due to the compensable organic injury. The Board also granted arrears of the PCA to July 2009.
The worker appealed a decision of the Appeals Resolution Officer regarding the arrears of the ILA and PCA.
The Board policy on ILAs provides that the allowance is paid when there is evidence that the worker is severely impaired and that it is paid retroactively from the date of entitlement, which the date of the accident or the date the policy came into effect in October 2004, whichever is later. If a worker becomes entitled to an allowance because of a deterioration, the allowance is paid from the date of recurrence or the permanent worsening date.
The Board policy on PCAs provides that entitlement starts from the date the worker begins to need the services of an attendant due to the work-related injury and the criteria for severe impairment are met.
The Panel found it unreasonable to infer that the date on which the worker was injured was the date on which she became severely impaired. From 2006 to 2009, the worker attempted to continue to work or participate in LMR, although with accommodation and difficulty. The medical evidence indicated that the worker's psychiatric condition was in flux following the accident and ultimately reached a plateau in 2010.
Regarding the ILA arrears date, the determination that the worker was entitled to a second NEL award was akin to a worsening or deterioration under the relevant Board policy. Prior to 2010, she had only a 39% NEL award, well below the 60% threshold. According to the policy, the ILA is paid from the permanent worsening date. None the less, the Board paid the arrears from July 2009, when she was found to be unemployable, which was a year prior to the MMR date for a 60% NEL award. The Panel found the Board approach to be reasonable and generous in the circumstances.
Regarding the PCA arrears, the policy states that the date of entitlement is the date on which the worker requires an attendant and meets the definition of a severely impaired person. This ties the date to the date on which the Board assesses the worker as having reached MMR and having a NEL award of 60%, which again, in this case, would be November 2010. Again, the Board adopted a reasonable and generous approach in granting the PCA as of July 2009.
The Panel confirmed the arrears date of July 2009 for the ILA and the PCA. The appeal was dismissed.