Highlights of Noteworthy Decisions

Decision 1926 15
25/09/2015
R. McCutcheon
  • Loss of earnings {LOE} (lay-off)
  • Health care (independent living) (severely disabled worker)
  • Board Directives and Guidelines (health care) (independent living) (arrears)

The worker suffered a low back injury 1997, a crush injury to his hand in 1998 and upper extremity disablement in 2007. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits during a lay-off from September 2008 to December 2008, a NEL assessment for cervical impairment, an increase in his 25% NEL rating for psychotraumatic disability and payment of an independent living allowance from 1997.

The lay-off was a short-term lay-off, to address a specific problem in the plant. Board policy provides that, generally, workers involved in short-term lay-offs have their benefit status maintained. However, the Vice-Chair found that the worker came within exceptions in the policy, in that his work required a high degree of accommodation and his impairment clearly presented an obstacle to finding alternative employment. The worker was entitled to LOE benefits during the period in question.
The worker had a permanent cervical impairment resulting from the compensable injuries, for which he was entitled to a NEL assessment.
The 25% NEL rating for psychotraumatic disability was appropriate.
The Board granted initial entitlement in 2013 for the 2007 disablement. The permanent impairment for that condition was then rated at 11%. That rating brought the worker's NEL award above 60%, thus entitling him to the independent living allowance. Board policy provides for payment of the ILA retroactive to the date of the accident or, in the case of a deterioration of a work-related condition, retroactive to the permanent worsening date. The Board granted the ILA retroactive to October 2011, which it found to be the permanent worsening date under the disablement claim. However, the Panel noted that the NEL rating that entitled the worker to the ILA was granted following a determination of initial entitlement, not a deterioration of a work-related condition. Therefore, in accordance with Board policy, the worker was entitled to the ILA retroactive to the date of the accident in 2007.
The appeal was allowed in part.