Highlights of Noteworthy Decisions

Decision 440 20
23/03/2020
B. Kalvin
  • Health care (independent living) (severely disabled worker)
  • Board Directives and Guidelines (health care) (independent living) (arrears)

The worker suffered compensable accidents in May 1969, November 1985, January 1989 and March 1989, for which he was granted pensions totalling 100%. The Board granted an independent living allowance (ILA), with arrears to January 1, 1998. The worker appealed a decision of the Appeals Resolution Officer denying arrears prior to January 1, 1998.

The worker submitted that arrears on ILA should have been paid back to February 20, 1993, which is the date on which his permanent disability benefits totalled 100%.
On January 1, 1998, the WSIA came into force. The independent living allowance was a new benefit created under the WSIA. It is a benefit available to injured workers who have permanent disability benefits totalling at least 100%. The Board determined that the worker was entitled to the allowance with arrears to January 1, 1998, the date on which the benefit was enacted.
Board Operational Policy Manual, Document No. 17-06-02, on independent living allowance, provides that the allowance is paid retroactively from the date of entitlement, which is the date of the accident (in the most recent claim, for workers with multiple claims) or the date the policy came into effect, whichever is later.
That policy came into effect on October 12, 2004, which is later than dates of the accidents. Since the policy states that it applies to all decisions made after January 1, 2001, an argument can be made that arrears in this case should be paid back only as far as October 12, 2004. However, it is apparent that there were earlier incarnations of the policy dating back to the first one, which appears to have been published on June 15, 1999. The Board paid arrears on the worker's allowance to a date prior to the publication of the first ILA policy in 1999. It paid arrears back to January 1, 1998, the date on which the ILA benefit was enacted into law.
There was no basis to change to the Board's determination of the arrears date to a date prior to January 1, 1998. To do so would be contrary to the Board's policy, and would be to a date prior to the existence of the benefit.
The appeal was dismissed.