Highlights of Noteworthy Decisions

Decision 1194 17
R. Nairn
  • Permanent impairment {NEL} (redetermination) (significant deterioration)
  • Registration of employers
  • Earnings basis (FEL)
  • Class of employer (domestic services)
  • Class of employer (nursing)

The worker was employed as a labourer in 1995, when he suffered a right shoulder injury. The worker appealed a decision of the Appeals Resolution Officer regarding calculation of his FEL benefits, denying a redetermination of his 12% NEL award for right shoulder impairment and denying entitlement in 2011 for a second accident or recurrence.

The worker was laid off in 2003. The Board correctly based benefits on pre-injury earnings rather than earnings at the time of the lay-off. This is consistent with the wording of s. 43 of the pre-1997 Act, Board policy and the consensus of Tribunal decisions regarding FEL benefits for recurrences.
The worker was entitled to redetermination of his NEL award due to significant deterioration.
The worker suffered a shoulder injury in 2011. However, the Board found that the worker was providing non-professional nursing-type care for an individual. That individual would have been classified in Rate Group 857, classification unit 8662-099, for offices of nurses, which does not have mandatory coverage but, rather, has coverage by application. The individual had not applied for coverage.
The Vice-Chair found that the best fit in this case was Rate Group 944, classification unit 9741-099, for domestic workers, as the worker was, in essence, a companion and was not providing nursing services. This rate group has mandatory coverage. Therefore, even though the individual had not established a WSIB account, the worker would be entitled to benefits.
The Vice-Chair concluded that the worker was entitled to establish a claim for a new accident in 2011.
The appeal was allowed in part.