Highlights of Noteworthy Decisions

Decision 2009 15
M. Crystal
  • Continuing entitlement
  • In the course of employment (travelling) (for treatment)
  • Loss of earnings {LOE} (employability)

The worker suffered a repetitive strain injury in 2005. Later, the Board also granted entitlement for psychotraumatic disability. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for a motor vehicle accident while travelling for psychological treatment in November 2010, denying ongoing entitlement for psychotraumatic disability and denying full LOE benefits.

Board Operational Policy Manual, Document No. 15-02-02, on accidents resulting from treatment, provides that there is no entitlement for an accident that occurs while travelling to or from a treating agency, which has not been specifically directed by the Board. In this case, the Board did not direct the worker to receive treatment from this psychologist, although the Board was paying for the treatment and a mileage allowance for travel. The Vice-Chair stated that situations where a worker is travelling to an appointment at a Regional Evaluation Centre or one of the Board's specialty clinics, which had been arranged by the Board, would likely be considered to be circumstances in which the Board had specifically directed the worker in relation to treatment. That was not the situation in this case.
The Vice-Chair also agreed with the approach in Decision No. 2595/08, that it is necessary to demonstrate that the Board had some control and supervision over factors, such as the choice of treating agency and the specific time and place of the appointment. Again, that was not the situation in this case.
The Vice-Chair concluded that the worker did not have entitlement for the injuries suffered in the motor vehicle accident on the way to treatment.
On the evidence, the worker had ongoing entitlement for psychotraumatic disability, including an assessment for permanent impairment. Further, the worker was entitled to full LOE benefits.
The appeal was allowed in part.