Highlights of Noteworthy Decisions

Decision 1177 16
E. Smith
  • Estoppel
  • Future economic loss {FEL} (deemed earnings) (employability)
  • Hearing (de novo)

The worker suffered a neck and shoulder injury in 1995. The Board granted a 5% NEL rating for the shoulder and a 17% rating for the neck, which combined for a 21% NEL award. In Decision No. 1289/11, the Tribunal granted a redetermination of the NEL rating for the neck, and confirmed the FEL benefits as granted by the Board until 2009. The Board then increased the NEL rating for the neck to 19%, which increased the NEL award to 23%.

The worker now appealed a decision of the Appeals Resolution Officer denying full FEL benefits after 2009.
The appeal is an appeal de novo. However, it is only de novo with respect to issues in the particular appeal. It is not open to the Vice-Chair to make findings that are inconsistent with the findings in the prior decision only because they apply, as a technical matter, to a later time period. To the extent that the findings in the prior decision have ongoing relevance, the Vice-Chair considered herself bound that those findings.
Thus, the narrow question on this appeal was whether the deterioration in the worker's range of motion findings in her cervical spine, which are reflected in the NEL redetermination, means that the retail sales job that was previously suitable is no longer suitable.
The Vice-Chair concluded that the change in the worker's compensable condition was not sufficient to make the retail sales job unsuitable. The appeal was dismissed.