Highlights of Noteworthy Decisions

Decision 2434 17
K. Jepson - M. Falcone - G. Carlino
  • Estoppel
  • Future economic loss {FEL} (deemed earnings) (employability)
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Jurisdiction, Tribunal (binding nature of determination) (previous Tribunal decision)

The worker suffered a low back injury in 1996, for which he was granted a 22% NEL award, later increased to 27%. In Decision No. 1515/15, the Tribunal granted the worker entitlement for psychotraumatic disability and confirmed the worker's FEL benefits from 2012 to 2014. The Board then granted the worker a 15% NEL rating for the psychotraumatic disability and based FEL benefits at the final review in 2014 on deemed earnings in the identified SEB.

The worker appealed a decision of the Appeals Resolution Officer regarding the NEL rating for psychotraumatic disability and the FEL benefits.
On the evidence, the Panel confirmed the 15% rating for psychotraumatic disability.
In determining the FEL benefits, the Panel first considered the scope of the determinations in Decision No. 1515/15 and issue estoppel.
Issue estoppel applies to prevent a party from asking a court or tribunal to decide a matter that has already been decided. Issue estoppel would apply to a previous Tribunal decision if an issue decided in the prior decision is the same as, or overlaps with, the issue in the current appeal.
Decision No. 1515/15 determined FEL benefits from 2012 to 2014. The hearing took place in June 2014, so that all evidence up to June 2014 was available at the time of the hearing. Decision No. 1515/15 confirmed that the worker was capable of working in the identified SEB. Thus, the question was whether Decision No. 1515/15 took into account both the organic low back impairment and the psychotraumatic disability, for which entitlement was granted in that decision.
The Panel carefully reviewed Decision No. 1515/15 but found nothing in the reasoning that expressly stated it was taking the psychotraumatic disability into account in making its determination regarding FEL benefits from 2012 to 2014. Therefore, the Panel concluded that the issue of FEL benefits up to, and as of, June 2014, had not been decided taking into account both the organic and non-organic impairment. Accordingly, that issue remained open to be decided on this appeal.
On the evidence, the worker was not capable of performing any type of gainful employment. He was entitled to full LOE benefits at the final review in June 2014.
The appeal was allowed in part.