Highlights of Noteworthy Decisions

Decision 707 15
A. Baker
  • Loss of earnings {LOE} (review) (extension)

The worker was struck on the head in February 2004, by a part weighing 10 pounds that fell a distance of 15 feet. The Board granted a 15% NEL award for knee impairment and post-traumatic headaches. Later the Board granted entitlement for psychotraumatic disability and increased the NEL award to 28%. The final 72-month LOE review was to occur in February 2010, but the Board deferred the review, based on ongoing health care. At the subsequent final review in September 2014, the Board granted LOE benefits based on deemed earnings in the SO of customer service clerk. The worker appealed a decision of the Appeals Resolution Officer confirming the deferral of the final LOE review and denying full LOE benefits at the final review.

The Vice-Chair found that the Board should not have deferred the review. The worker was unable to return to gainful employment at the time of the 72-month review. She had ongoing psychiatric difficulties and migraine headaches that interfered with efforts to re-enter the work force. Medical reporting on file supported this conclusion. The migraines were unpredictable and she was taking multiple medications. The worker was receiving Lidocaine infusions for short-term pain relief and she was attending a pain clinic for maintenance type treatment but there was no specific medical rehabilitation program underway at the end of the 72-month period in February 2010.
The final LOE review should have occurred in February 2010. Given the unpredictable nature of the worker's headaches, she would not be able to maintain even part-time employment in a basis customer service job. The worker was entitled to full LOE benefits. The appeal was allowed.