Highlights of Noteworthy Decisions

Decision 2080 15
20/10/2015
S. Martel
  • Future economic loss {FEL} (retroactivity)
  • Health care (appliances or apparatus) (orthopaedic footwear)
  • Retirement benefits

The worker suffered a right ankle injury in 1997, after which he was able to return to work. He re-injured his right ankle in 2002. After the 2002 injury, the Board also allowed entitlement for psychotraumatic disability and granted a 52% NEL award for organic and non-organic impairment. In Decision No. 1191/08, the Tribunal found that the 2002 injury was a recurrence of the 1997 injury rather than a second accident. The Board then granted temporary total disability benefits from 2002 to 2009, and full FEL benefits as of 2009.

The worker now appealed regarding the appropriate D1 date in the claim and denial of entitlement for custom orthopaedic shoes.
On the evidence, the worker had entitlement for the custom orthopaedic, as being necessary as a result of the compensable injury.
The worker has been receiving full wage loss benefits since 2002. The significance of the D1 date was due to s. 44 of the pre-1997 Act which provides that the Board sets aside funds equal to 10% of every payment under s. 43 for the purpose of providing a worker with a retirement pension. FEL benefits are paid under s. 43. Temporary total disability benefits are paid under s. 37. Thus, no amount is set aside for a retirement pension for temporary total disability benefit payments.
Tribunal decisions have found that circumstances of the individual case must be considered in determining whether to award temporary benefits or a retroactive FEL award. In this case, there was evidence from a Board medical advisor that the worker was unlikely to return to work due to his severe psychiatric condition. The Board adjudicator accepted this opinion in January 2006. The Vice-Chair found that January 2006 was an appropriate D1 date. The worker was entitled to a full FEL award as of January 2006.
The appeal was allowed.