Highlights of Noteworthy Decisions

Decision 2169 19
17/04/2020
K. Jepson - M. Christie - M. Ferrari
  • Consequences of injury (altered gait)
  • Earnings basis (period of unemployment)
  • Permanent impairment {NEL} (redetermination) (significant deterioration)
  • Significant contribution (of compensable accident to subsequent disability)
  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (permanent employment) (break in employment pattern)

The worker was employed as a labourer when he suffered burns to his left leg from spilled hot tar in September 2006. The Board accepted entitlement for the left leg burn injury, loss of earnings (LOE) benefits, and eventually psychotraumatic entitlement including Post-Traumatic Stress Disorder (PTSD), depression, anxiety, and obsessive compulsive disorder (OCD) symptoms. The worker was granted a 25% non-economic loss (NEL) benefit for the psychological disability, and a 2% NEL for the leg injury.

The worker previously appealed to the Tribunal about a determination that he could work as a cashier. The resulting decision, Decision No. 1331/14 found that although cashier was not a suitable employment for the worker, that the worker was capable of some form of employment at minimum wage. Given that the worker's pre-injury earnings basis was calculated as less than minimum wage, the Panel in Decision No. 1331/14 found that the worker was not entitled to ongoing LOE benefits.
As part of the hearing process that led to Decision No. 1331/14, the worker withdrew the issues of the worker's status as an apprentice at the time of the injury as well as the recalculation of the worker's long-term earnings. Subsequent to Decision No. 1331/14, the worker asked the Board to consider the argument that there had been a break in his employment pattern which would affect his earnings basis calculation.
In this decision, the worker has appealed the Board's decision on his earnings basis, as well as the Board's denial of entitlements to: irritable bowel syndrome (IBS), low back entitlement, and a NEL redetermination for his psychotraumatic disability.
The Panel in this decision found the break in the employment pattern was a new issue that had not previously been decided by the Tribunal. The Panel found that the worker had a pattern of very sporadic employment of short-term engagements interspersed with EI or social assistance. When the accident employer re-hired the worker as a permanent full-time employee the worker had a new status and level of job security that represented a break from his prior pattern of sporadic and insecure employment. The break was significant enough to make his prior pattern of employment irrelevant to his likely future earnings. The worker's LOE was to be based on the hourly rate at the time of the accident, which was $22.74.
The Panel also found that the worker had a significant deterioration in his psychotraumatic disability and was entitled to a NEL redetermination.
The worker's compensable psychological condition was found to be a significant contributing factor to the development of irritable bowel syndrome (IBS). The Panel found the worker had entitlement to benefits for IBS.
Although the Panel did not find the worker had experienced a low back compensable injury in the course of employment, the Panel did find that the worker developed a chronic low back strain as a result of a persistent antalgic gait due to his compensable leg injury. The Panel granted benefits for a low back condition as a secondary entitlement.