Highlights of Noteworthy Decisions

Decision 1967 17
S. Ryan
  • Continuing entitlement
  • Evidence (surveillance)
  • Loss of earnings {LOE} (level of benefits) (hours of work)

The worker suffered a severe crush injury to his left hand and wrist in February 2003. The Board granted the worker a 32% NEL award, later increased to 35% and then to 40%. The Board also granted entitlement for psychotraumatic disability, with a 5% NEL rating, later increased to 10%, resulting in a combined 46% NEL award.

The worker and employer appealed regarding LOE benefits after September 2011.
Following surgery and rehabilitation, the worker returned to modified work on a graduated basis in November 2003. However, he did not increase his hours beyond six per day, three days per week on any sustained basis.
The evidence indicated that the workplace parties engaged in extensive ESRTW activities over a period of more than 10 years. The employer provided numerous accommodations such as changes in job duties, ergonomic devices and offers of travel reimbursements.
Notwithstanding the 46% NEL award, the Vice-Chair found that permanent modified duties offered to the worker in September 2011, were suitable, that the graduated RTW plan developed in 2011 was suitable and that the worker was capable of working in full-time employment as of April 2012.
In weighing video surveillance evidence, Tribunal decisions have generally relied on the opinions of treating medical professionals in determining a worker's employability and functional abilities over the video surveillance. However, there may be circumstances where it is not appropriate to prefer the medical evidence over the video surveillance. The Vice-Chair found that, in this case, the video surveillance recorded in 2017 was compelling evidence of the worker's ability to use his left hand in numerous activities that were well beyond what could reasonably be described as a simple "assist" to his right hand.
The appeals of the worker and employer were dismissed. The Vice-Chair confirmed the decision of the ARO that the modified work offered to the worker as of September 2011, was suitable, that the worker's entitlement to partial LOE benefits was correctly calculated commensurate with the increasing hours in a graduated RTW as of September 2011, and that the worker was capable of working in full-time employment as of April 14, 2012.