Highlights of Noteworthy Decisions

Decision 292 16
S. Martel
  • Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)

The worker suffered right knee, neck and back injuries in a fall in March 2001. The Board granted an 18% NEL award for permanent right knee impairment. The worker appealed a decision of the Appeals Resolution Officer regarding additional and ongoing entitlement.

The worker did not have a permanent neck or back impairment. The worker did not have entitlement for psychotraumatic disability.
Modified work provided by the employer was suitable for the worker but she was only capable of working a six-hour shift, rather than a 12-hour shift. Accordingly, the worker was entitled to 50% LOE benefits as of November2003.
The worker underwent right knee arthroplasty in 2008, and a further right knee surgical procedure in 2014. The 18% NEL award was assessed in 2003. Reassessments in 2012 and 2014 indicated no significant changes in the worker's knee restrictions. The Vice-Chair confirmed the 18% NEL award.
The final LOE review was in March 2007. After the surgery in 2008, the Board granted LOE benefits for a temporary period of time pursuant to s. 44(2.1)(f) of the WSIA for significant temporary deterioration. There was no legislative authority to grant further LOE benefits beyond the temporary deterioration, as the knee surgery did not result in an increase in permanent impairment. The worker was not entitled to ongoing LOE benefits beyond the 50% benefits granted in 2003.
The appeal was allowed in part.