Highlights of Noteworthy Decisions

Decision 570 21
29/07/2021
J. Smith
  • Health care (attendance allowance)
  • Health care (independent living) (severely disabled worker)
  • Charter of Rights (disability)

The worker injured his head, neck, and mid and low back in a motor vehicle accident in 1987. He was granted permanent disability awards totaling 85%. His low back condition deteriorated and he required two surgeries in 2015. His PD award for the low back was increased to 30% with arrears to December 11, 2014, which brought his total PD level to 100%. The worker was granted entitlement to an independent living allowance (ILA) and a personal care allowance (PCA) commencing December 11, 2014. The worker appealed the arrears date for the ILA and PCA. As part of the appeal, the worker brought a challenge under the Canadian Charter of Rights and Freedoms.

The appeal was dismissed.
The worker submitted that the Board policies for ILAs and PCAs discriminated on the basis of disability because of the differential manner in which the policies defined a severely impaired worker based on whether the injury occurred before or after 1990. Workers injured prior to 1990 needed a PD level of 100% for entitlement, while workers injured after 1990 needed a NEL of 60% in order to have entitlement under the policies.
The worker's Charter claim failed. In order for the policy to be found in violation of section 15 of the Charter, the policy must create a distinction based on an enumerated or analogous ground, and this distinction must discriminatory. The definition of severe impairment did not create a distinction between disabled workers and those who were not disabled, nor did it discriminate based on type of disability. The distinction in the policies was based on accident date, which was not an enumerated or analogous ground.
Even if the Charter did apply, there was no evidence that the different rating schedules resulted in a definition of severely impaired that amounted to a higher standard for one group than the other. There was no basis to find that the definition of severely impaired worker created inequality between workers injured prior to 1990 and those injured afterwards.
The arrears date for the worker's ILA and PCA entitlement was correctly determined, as this was the date that the worker's PD award met the 100% threshold in the policies. The medical evidence indicated that the recurrence and deterioration that resulted in the increased award commenced on December 11, 2014. There were no exceptional circumstances to warrant an exception to the policies.