Highlights of Noteworthy Decisions

Decision 1691 15
M. Crystal
  • Health care (attendance allowance)
  • Health care (independent living) (severely disabled worker)
  • Board Directives and Guidelines (attendance allowance) (arrears)

The worker suffered a low back and shoulder injury in February 1993. The Board granted NEL ratings for the low back and the shoulder, which were increased over the years. In 2004, the Board also granted a 40% NEL rating for psychotraumatic disability. In Decision No. 1523/07R2, the Tribunal found that the worker had entitlement for a neck impairment. The Board then assigned a 16% rating for the neck.

The Board granted the worker a personal care allowance as of 2004. The worker appealed a decision of the Appeals Resolution Officer regarding the arrears date for the personal care allowance and regarding the quantum of the allowance.
Board Operational Policy Manual, Document No. 17-06-05, on personal care allowance, provides that severely impaired workers who have difficulties with activities of daily living are entitled to a personal care allowance. Workers are considered severely impaired if they have NEL benefits totalling at least 60% or if their impairments are likely to be permanent and total at least 60%. Entitlement to the personal care allowance starts from the date the worker begins to need to the services of an attendant and the criteria for severe impairment are met.
It was only after the worker was granted the 40% NEL rating for psychotraumatic disability that he met the 60% NEL rating requirement. The low back rating was increased to 20% in May 1996. The 16% neck rating was effective December 1997. The 40% rating for psychotraumatic disability was granted in 2004, retroactive to April 1998. Since the MMR date for the psychotraumatic disability was in April 1998, the Vice-Chair found that the worker met the criteria severe impairment by way of a 60% NEL rating in April 1998.
The Vice-Chair then considered whether it could have been anticipated that the worker would meet the 60% threshold because such a result would have been likely at an earlier date, in accordance with the second means in the policy of determining severe impairment. Considering that the 60% rating resulted from injuries to more than one body part together with psychological entitlement, and considering that the quantum of the ratings increased incrementally over time, the Vice-Chair found that it would be difficult to anticipate that the worker would likely reach a 60% level or impairment until he actually achieved that level of impairment in April 1998.
The Board determined the arrears date to be in 2004, when the worker was assessed for the psychotraumatic disability rating. However, the Vice-Chair found that the criteria for severe impairment were met in April 1998. The other requirement for determining the start date is that the worker needs the services of an attendant. The Vice-Chair reviewed the medical information and found it probable that the worker needed the services of an attendant at about that same time in April 1998.
The Vice-Chair concluded that the worker was entitled to the personal care allowance retroactive to April 1998. The Vice-Chair also reviewed and increased the amount of the personal care allowance. The appeal was allowed.