Highlights of Noteworthy Decisions

Decision 660 21
15/06/2021
A. Somerville - D. Thomson - M. Tzaferis
  • Interest (pre-1990 accident)
  • Merits and justice
  • Pensions (arrears)
  • Pensions (assessment) (shoulder)
  • Board Directives and Guidelines (interest) (pre-1990 accident) (overturning decision)

The worker fractured his right knee in 1969. Decision No. 1337/18 granted entitlement for a shoulder injury sustained in a May 2011 fall when his knees gave out, and referred the quantum and duration of benefits back to the Board. The Board determined that the worker was entitled to a 5% PD award with arrears to May 1, 2011 and a 10% PD award with arrears to November 12, 2013, without interest on the payments.

In 2018, a legislative change removed OAS benefits from the calculation of a 147(14) supplement. At the worker's request, the Tribunal referred the worker's entitlement to s. 147(14) benefits back to the Board. The Board determined that based on the legislative changes, the worker became entitled to a s. 147(14) supplement on August 1, 2005, when he turned 65, but was not entitled to interest on the retroactive payments.
The worker appealed an ARO decision confirming the PD awards for the shoulder, and denying interest on the PD arrears and the 147(14) supplement payments.
The appeal was allowed in part.
The worker was entitled to an increase in his PD award for the right shoulder from 5% to 10% as of May 1, 2011. Although the first medical note of an inability to lift the shoulder was by his family doctor in November 2013, the worker s testimony, his family doctor's notes of ongoing complaints, and the extensive investigation and treatment in 2011 all indicated that the 2011 injury was significant and likely involved a loss of function.
The worker was also entitled to interest on the PD award from May 1, 2011. Board policy provides for the payment of interest to workers whose claims are registered before January 1, 1990 for delayed benefit payments made as a result of an ARO or WSIAT decision. Although the determination that the worker was entitled to a pension was made by the Board's Operating Area, the decision was as a result of the Board's implementation of Decision No. 1337/18, which granted entitlement for a shoulder disability.
The worker was not entitled to interest on the retroactive payment of the s. 147(14) supplement. The worker's entitlement to the s. 147(14) benefit did not arise due to an ARO or WSIAT decision overturning a decision. The WSIAT had not addressed or determined the worker's entitlement under the legislative amendments, but rather referred the issue back to the Board at the worker's request. Moreover, there was no delayed payment as the worker was provided with the benefit as soon as the legislative amendments became effective in 2018. Finally, there were no exceptional circumstances warranting payment of interest on the merits and justice of the case.