Highlights of Noteworthy Decisions

Decision 1000 15 R2
G. Dee
  • Estoppel
  • Reconsideration (error of law)
  • Loss of earnings {LOE} (employability)
  • Loss of earnings {LOE} (review) (final)

The worker applied for reconsideration of Decisions No. 1000/15 and 1000/15R.

The worker had suffered a compensable injury in March 2005. The Board paid full LOE benefits from August 2006, but at the final LOE review in May 2012, the Board granted LOE benefits based on ability to work full-time at minimum wage. In Decision No. 1000/15, the hearing panel allowed the appeal in part, finding that the worker was entitled to LOE benefits based on ability to work part-time at minimum wage.
On this application for reconsideration, the worker submitted that, once the Board finds that a worker is totally disabled and entitled to full LOE benefits, there must be a change in circumstances before the Board can proclaim the worker employable and no longer disabled.
The Vice-Chair noted that the worker did not make this argument at the original hearing. If the worker wanted to rely on this argument, the worker should have made the argument at the initial hearing and not on a reconsideration request.
In any event, the Vice-Chair did not accept the argument on its merits. If the Board makes a decision that a worker is incapable of any earnings post-injury and later, without any evidence of a change in circumstances, it determines that the worker is capable of achieving earnings, the Board will have made inconsistent decisions. Only one of those decisions can be correct but, without examining the evidence relied upon to make those decisions, it cannot be determined which is correct and which is incorrect.
The worker was arguing for a form of res judicata in which front-line decision-makers may issue binding decisions not only on future front-line decision-makers but also on appellate level decision-makers and the Board and the Tribunal.
The implications of a Board decision at the final LOE review lock-in date can be much more significant that earlier decisions on LOE benefits. The increased significance may cause the Board to review the circumstances in greater detail of a worker who was previously determined to be unemployable. The decision is a factual issue that can only be determined on a case-by-case basis.
The original hearing panel had jurisdiction to consider the worker's employability and earnings capability as of May 2012, and was not bound by any legal principle to reach the same conclusion of a Board case manager did at some earlier point in time.
The application to reconsider was denied.