Highlights of Noteworthy Decisions

Decision 1330 18 R
M. Crystal
  • Reconsideration (clarification of decision)
  • Health care (independent living) (severely disabled worker)
  • Board Directives and Guidelines (health care) (independent living) (arrears)

The worker suffered multiple injuries in a fall in October 2004. Decision No. 1330/18 found confirmed an arrears date of November 2014, for the worker's independent living allowance, granted entitlement to a personal care allowance and granted a NEL assessment for dental injuries.

The worker applied for clarification of Decision No. 1330/18 regarding the arrears date for the independent living allowance.
Board Operational Policy Manual, Document No. 17-06-02, on independent living allowance, provides an independent living allowance for severely impaired workers (workers who have NEL benefits totalling at least 60%). The allowance is paid retroactively from the date of entitlement, which is that date of the accident or the date the policy came into effect, whichever is later. If the worker becomes entitled to the allowance because of a deterioration of the work-related condition, the allowance is paid from the date of the recurrence or permanent worsening date.
The worker submitted that the independent living allowance should be paid from the date of the accident. To accept this submission, it would be necessary to find that the worker obtained the total NEL rating of at least 60% without taking into account any rating awarded for permanent worsening or deterioration of the compensable condition. If the NEL award reaches 60% as a result of a permanent deterioration, the allowance will be paid retroactively to the date of the permanent deterioration rather than the date of the accident.
In this case, the initial NEL evaluation was conducted in August 2009, at which time the worker was granted a combined 55% NEL award for right leg impairment, disfigurement and psychotraumatic disability. In July 2015, the worker was granted additional ratings of 2% for the left thumb and 10% for gastrointestinal issues. Although these impairments were recognized by the Board in 2015, the Vice-Chair was satisfied, on the medical evidence, that these two areas of entitlement were components of the original injuries at the time of the accident, and were not deteriorations or subsequently arising conditions.
The combined value of all these ratings was 60%, and that 60% award related to injuries that arose at the time of the accident. Accordingly, the worker was entitled to the independent living allowance with arrears to the date of the accident.
Decision No. 1330/18 was clarified accordingly.