Highlights of Noteworthy Decisions

Decision 1214 15
24/08/2015
R. McCutcheon
  • Aggravation (preexisting condition) (psychiatric disability)
  • Labour market re-entry {LMR} (suitability of program)
  • Loss of earnings {LOE} (employability)
  • Permanent impairment {NEL} (psychotraumatic disability)

The worker suffered a left knee injury in August 2004, for which he did not lose any time from work. He suffered a low back injury in September 2005, for which he was granted a 21% NEL award. The Board identified a SEB of drafting technologist and technician, but was unable to complete the training. The Board approved a new SEB in web design and development. He was also unable to complete that program. He was unable to continue with LMR activities due to psychological difficulties. The Board granted entitlement for psychotraumatic disability, but only on a temporary basis. The Board granted LOE benefits on deemed earnings in the drafting SEB.

The worker appealed a decision of the Appeals Resolution Officer denying a NEL award for permanent knee impairment, denying ongoing entitlement for psychotraumatic disability, confirming the appropriateness of the drafting SEB and basing LOE benefits on deemed earnings in that SEB.
The Vice-Chair found that the worker was not entitled to a NEL assessment for the left knee. The Vice-Chair noted that the worker had been able to perform his pre-accident employment after the knee injury, that the worker had bilateral osteoarthritis and that no accident-related diagnosis was identified by treating specialists.
The worker had a pre-existing, symptomatic psychiatric condition, for which he had been hospitalized at least twice related to suicidal ideation. The Board made several attempts to accommodate the worker's physical and psychiatric conditions, and supported the worker during treatment for depression, including granting of LOE benefits, until 2011. By that time, the pre-existing psychiatric condition overwhelmed the role of the compensable back injury in his ongoing psychiatric condition. Board policy provides that psychotraumatic disability is considered to be a temporary condition, unless there are exceptional circumstances. The Tribunal has not construed this provision strictly. However, in this case, there were no exceptional circumstances to warrant acceptance of the worker's psychotraumatic disability as a permanent condition.
The worker was unable to complete the training in drafting technology. The Board implicitly recognized that the drafting SEB was not appropriate when it approved a different SEB. The Vice-Chair found that the drafting SEB was not appropriate. However, the worker was not unemployable. The Vice-Chair agreed that it was preferable to focus on the language in the Act rather than on the concept of competitive unemployability. Factors for consideration include medical restrictions, transferable skills, pre-existing conditions, English language ability and age. In this case, the worker had physical ability to perform work in the medium strength category and had aptitudes that would qualify for many types of employment. The worker was entitled to LOE benefits based on deemed full-time earnings at minimum wage.
The appeal was allowed in part.