Highlights of Noteworthy Decisions

Decision 488 21
K. Iima - M. Trudeau - C. Salama
  • Earnings basis (minor)
  • Health care (medical aid) (drugs)
  • Psychotraumatic disability
  • Subsequent incidents (outside work)
  • Consequences of injury (secondary condition)

As part of her appeal, a worker sought entitlement for her neck as a secondary condition, and a recalculation of her earnings basis with respect to FEL benefits.

The worker previously underwent a spinal fusion surgery which left her with lingering back pain. The Panel noted that the worker's neck complaints arose subsequent to a "spontaneous fall" at her home. The medical evidence established that the fall was precipitated by a severe back spasm, causally related to her compensable low back injury. It was concluded that the worker's low back injury was a significant contributing factor to her neck injury, and she was granted initial entitlement for her neck as a secondary condition.
With respect to the worker's claim for a recalculation of her earnings basis, the worker's representative submitted that the FEL calculation should have been based on the worker's future prospects as a letter carrier instead of a part-time mail sorter, or in the alternative, as a full-time mail sorter, as the worker had intended to pursue this position with the accident employer.
The Panel concluded that section 26 of the pre-1997 Act, when read in conjunction with sections 25 and 37 (the former which specifically limits reviews to temporary benefits under section 37) cannot be interpreted to allow a review of the worker's section 43 FEL benefits. It was reasoned that had the legislature intended for section 26 to apply to section 43 FEL benefits, it would have been indicated.
In addition, section 40(7) provides for benefits based on average earnings at the time of the accident or most recent employer, whichever is greater. Although this language is absent from section 43 regarding FEL benefits, the Panel agreed that section 43 requires net average earnings to be the earnings used at the time of the original injury or accident, and if the legislature had intended FEL benefits to be based on something else (such as earnings at the time of the recurrence), it would have so indicated (see Decision No. 701/04R).
Furthermore, as per Decision No. 1235/02R3, it was noted that the worker's compensation system only compensates a worker for loss of earnings they were actually being paid when hired. It was pointed out that the worker did not fall within section 40(6) exceptions in that there was no evidence of significance that changes to the worker's salary or hours were in place or contemplated at the time of the injury. The Panel concluded that based on the statutory scheme as a whole, only temporary benefits, and not FEL benefits, permitted benefits to be paid at a higher rate, subject to exceptions such as section 40(6). The merits and justice provision could also not be used to avoid the clear wording of the Act or Board policy.
The Panel concluded that a review was not in order under section 26 and the worker was not entitled to a recalculation of her earnings basis. As one of the additional supporting factors, it was also pointed out that the worker's benefits were regularly adjusted and paid in a timely manner over the course of her claim.