Highlights of Noteworthy Decisions

Decision 3538 18
Z. Onen
  • Future economic loss {FEL} (eligibility)
  • Temporary total disability

In Decision No. 144/11, the Tribunal found that the worker had initial entitlement for occupational asthma in January 1996. The Board then granted the worker a 26% NEL award and temporary benefits for three short discrete periods in 1996.

The worker now appealed a decision of the Appeals Resolution Officer denying further entitlement to benefits for lost time from 1996 to 2011, when the worker reached age 65.
Under s. 37 of the pre-1997 Act, a worker who suffers from temporary total or partial disability is entitled to benefits. These benefits continue until the worker is eligible for FEL benefits under s. 43. Under s. 43, a worker who suffers an injury that results in permanent impairment or temporary disability lasting 12 continuous months is entitled to FEL benefits.
Under s. 43(10), the initial FEL determination should be made in the 12th consecutive months during which the worker is temporarily disabled or within one year after notice of the accident if, during the year, the Board determines that the worker is permanently impaired. The worker's asthma resulted from occupational exposure. Thus, his injury is an occupational disease. Section 43(11) states that only s. 43(10)(a) applies to a worker who suffers from an occupational disease. As a result, a worker who has entitlement for an occupational disease is only eligible for FEL benefits if the worker has been in receipt of temporary benefits for 12 consecutive months.
On the evidence, the Vice-Chair found that the worker was entitled to temporary total disability benefits for four additional short discrete periods (one period in 1996, one period in 1999 and two periods in 2000). The worker was not entitled to temporary benefits that would result in temporary benefits for a consecutive period of 12 months. Therefore, the worker was not entitled to a FEL determination.
In making the determination regarding temporary benefits, the Vice-Chair found that information from tax filings did not establish that any reduced income was due to his asthma. The tax information is general in nature, and relates to the worker's income over a calendar year. The worker had variable earnings but there was nothing specific to indicate that any reduction was tied to specific dates of periods when the worker was unable to earn due to the asthma.
The appeal was allowed in part.