Highlights of Noteworthy Decisions

Decision 855 19
A. Somerville
  • Pensions (reassessment)
  • Supplements, transitional provisions (FEL or LOE benefits in subsequent claims)
  • Benefits (overcompensation)

The worker suffered a right shoulder injury in April 1988. The Board granted a 20% pension for chronic pain disability, later increased to 25% and then to 35%. In Decision No. 517/03, the Tribunal found that the worker had entitlement for carpal tunnel syndrome in January 1991. The Board then granted a 17% NEL award for the carpal tunnel syndrome. In Decision No. 2030/15, the Tribunal found that the worker was entitled to a full FEL award, as a result of the 1991 accident. The predominant cause of the worker's lay-off in 1991 and her subsequent unemployability was the compensable carpal tunnel syndrome. Subsequent to Decision No. 2030/15, the Board rescinded entitlement to supplementary benefits under s. 147(4) of the pre-1997 Act, as related to the 1988 accident.

The worker now appealed a decision of the Appeals Resolution Officer denying further reassessment of the pension for chronic pain disability and denying supplementary benefits.
There was evidence of worsening of the worker's chronic pain condition. The worker was entitled to a pension reassessment.
Board Operational Policy Manual, Document No. 18-07-10, on pre-1990 pension supplements, provides that, if a worker is receiving a s. 147(4) supplement and becomes entitled to FEL or LOE benefits under another claim, the Board continues to pay the s. 147(4) supplement, and the FEL or LOE benefits are not offset or reduced.
In implementing Decision No. 2030/15, the Board paid temporary total disability benefits from January 1991 to March 2011, and then full FEL benefits from March 2011 until the worker reached age 65 in April 2016, under the 1991 accident claim.
In awarding full FEL benefits, Decision No. 2030/15 accepted the worker's testimony that the onset of carpal tunnel syndrome in 1991 significantly affected her ability to function and that her 1991 injuries were the full reason for her decision to leave employment. The medical reporting also suggested that there was a significant deterioration in her condition after the 1991 accident.
The Vice-Chair concluded that the worker wage loss when she stopped working in 1991 was due to the compensable carpal tunnel syndrome and that the worker did not have a wage loss due to the 1988 accident. The worker has already received compensation for the wage loss in the 1991 claim.
The Board policy states that the Board continues to pay s. 147(4) supplementary benefits if a worker becomes entitled to FEL or LOE benefits under another claim. However, in this case, the Vice-Chair found that the worker does not satisfy the eligibility criteria for a s. 147 supplement. The worker would be overcompensated if she received benefits under two claims for the same wage loss arising in the same time period.
The worker was not entitled to the s. 147(4) supplementary benefits.
The appeal was allowed in part.