Highlights of Noteworthy Decisions

Decision 167 18
A. Patterson
  • Supplements, transitional provisions (benefit from rehabilitation) (cooperation)
  • Supplements, transitional provisions (benefit from rehabilitation) (earning capacity)
  • Supplements, transitional provisions (permanent)

The worker suffered neck, back and shoulder injuries in November 1989. The Board granted the worker a 15% pension for chronic pain disability. The worker appealed a decision of the Appeals Resolution Officer denying supplementary benefits under s. 147(4) of the pre-1997 Act, from October 1991.

The worker considered himself unemployable and did not co-operate with VR activity. If the worker had participated in the job search that the Board was recommending in October 1991, he likely would have found full-time work at minimum wage. His combined earning capacity (pension and minimum wage earnings) would have been about $310 per week, significantly below his pre-accident earnings of $400 per week.
The Vice-Chair agreed with Decision No. 85/97, that non-co-operation will only disqualify a worker from s. 147(4) supplementary benefits if it is likely that the worker's earning capacity would have increased to the extent contemplated by s. 147(2), had he co-operated. Under s. 147(2), the determination is whether a worker's earning capacity after VR would have approximated pre-accident earnings.
In this case, the worker's earning capacity after participating in VR would not have approximated his pre-accident earnings. Accordingly, the worker was entitled to s. 147(4) supplementary benefits. The appeal was allowed.