Highlights of Noteworthy Decisions

Decision 224 16
R. Nairn
  • Health care (clothing allowance)
  • Non-economic loss {NEL} (lump sum)

The worker suffered a low back injury in 1991. The Board granted the worker a 20% NEL award for chronic pain disability, later increased to 25%. In Decision No. 264/95, the worker withdrew her appeal of the NEL quantum in order to pursue a review at the Board. The Board then increased the NEL award to 35%.

The worker now appealed a decision of the Appeals Resolution Officer denying retroactive adjustment of her clothing allowance from the years from 1996 to 2006, and denying conversion of payment of the NEL award from lump sum to monthly.
The Board paid a full clothing allowance before 1996 but paid the reduced allowance after changing its policy. The Board restored the full clothing allowance in 2006 after changing its policy again. The Vice-Chair applied Decision No. 1057/09, and concluded on the merits and justice that the worker was entitled to the full clothing allowance during the years in question.
Section 42(4) of the pre-1997 Act provides that, if NEL compensation is less than or equal to $10,000, it shall be paid as a lump sum. Board policy provides that the threshold is indexed annually and provides that the NEL benefit is paid automatically as a lump sum if the NEL benefit is less than or equal to the threshold for the year the worker reached MMR; if the NEL benefit is over the threshold, it is paid as a monthly payment for life, unless the worker elects to receive it as a lump sum.
In this case, the MMR date was in 1992. The payment received in 1992 and the increases after redetermination in 1993 and 1995, were each under the threshold. The Vice-Chair did not interpret the policy to suggest that the payment options were dependent on the cumulative total of NEL benefits paid to the worker. The use of the word "automatically" in the policy suggests that there was no intention to revisit initial payment options on redeterminations or reconsiderations, particularly when the NEL award was correctly paid initially and the amounts on redetermination were under the threshold. The emphasis appeared to be on efficient and expeditious payment of smaller NEL awards.
The Vice-Chair concluded that the amounts were appropriately paid as a lump sum according to the legislative and policy thresholds. There were no exceptional circumstances warranting a deviation from the policy.
The appeal was allowed in part.