Highlights of Noteworthy Decisions

Decision 667 21
06/05/2021
N. Perryman
  • Permanent impairment {NEL} (redetermination) (significant deterioration)
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Withdrawal (of issue)
  • Jurisdiction, Tribunal (binding nature of determination) (previous Tribunal decision)

The worker injured both shoulders in 1999. His NEL award was increased in 2015 due to significant deterioration, with a 50% reduction for pre-existing shoulder strain. His LOE benefits remained unchanged, as the ARO determined that his physical restrictions had not changed as a result of the significant deterioration and the SO remained suitable. At the Tribunal hearing, the worker withdrew his appeal on the NEL quantum and the suitability of the SO. Subsequently, the Board issued a memorandum clarifying that pre-existing asymptomatic conditions should not result in a reduction to a permanent impairment rating, and the worker's NEL was adjusted in 2018 to reflect no pre-existing impairment. The worker's request for a review of his LOE benefits as a result of the increased NEL was denied and the worker appealed.

The appeal was dismissed.
There was no jurisdiction to review the worker's LOE benefits for two reasons. First, the worker's level of disability as a result of the permanent worsening in 2015 had already been addressed in the previous ARO decision and the worker withdrew his appeal to the Tribunal on these issues. The findings in the ARO decision were therefore binding.
Second, there was no jurisdiction to review the worker's LOE benefits under section 44 of the Act, as the adjustment to the NEL in 2018 was not a redetermination within the meaning of s. 44(2.1)(c) and Board policy. It was an administrative decision as part of the NEL remediation process in response to the Board's memorandum. The decision adjusting the NEL quantum did not determine that the work-related condition had permanently deteriorated since the last NEL redetermination in 2015. There was no determination of a permanent worsening date, no review of the medical evidence on file, or anything else to suggest that it was a NEL redetermination.