Highlights of Noteworthy Decisions

Decision 2999 18 R
25/08/2020
Z. Onen
  • Board Directives and Guidelines (recurrences)
  • Reconsideration (clarification of decision)
  • Board Directives and Guidelines (aggravation) (preexisting condition)

The worker suffered a low back injury in July 1997. Decision No. 2999/18 found that the worker did not have entitlement for a recurrence in May 1999. The worker now applied for clarification of Decision No. 2999/18, as to whether the decision prevented the worker from seeking further entitlement on the basis that the worker's pre-existing condition was aggravated by the 1997 compensable injury.

The entitlement criteria set out in the Board's policy on recurrences are that there must be medical compatibility between the work injury and the condition claimed as a recurrence, or a combination of medical compatibility and continuity. The policy goes on to state that compatibility includes whether the same body parts and functions are involved, and the degree to which these body functions are affected. Policy criteria for continuity include whether the worker made complaints, received treatment, incurred functional restrictions, or had lifestyle changes after the work accident.
Entitlement under the pre-existing conditions policy is determined by assessing whether the worker's pre-existing condition is impacting ongoing impairment after the work injury. The factors to be considered include whether the work-related impairment affects the same body part or system as the pre-existing condition, whether it continues beyond the expected recovery period, whether it is unexpectedly severe, or if there is a change in the worker's ability to perform the pre-accident work.
There is significant overlap in the criteria required to establish entitlement as set out in the policies. Adjudication under one of these policies can, in some circumstances, result in findings that are also applicable to the other. As a result, in some cases, there may be sufficient findings of fact under one policy to effectively determine entitlement under the other.
The Vice-Chair concluded that, in this case, the original decision effectively determined the question of entitlement based on a claim that the worker's pre-existing low back condition was worsened as a result of the work injury of July 5, 1997, and that, in denying the worker's appeal, Decision No. 2999/18 also effectively decided entitlement on this basis.