Highlights of Noteworthy Decisions

Decision 1052 21
C. Zehr
  • Jurisdiction, Tribunal (final decision of Board)
  • Permanent impairment {NEL} (degree of impairment) (chronic pain)
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Jurisdiction, Tribunal (sequential issue)

The worker injured her shoulder in 2002 while pulling a cable. She was referred for LMR services and found work as a customer service representative in 2007. At her final LOE review in July 2008, her partial LOE benefits were based on her actual earnings at that time. She stopped working in October 2008, claiming she could not work because of her compensable condition. She was subsequently granted entitlement for CPD, including a NEL award of 20% with an MMR date of February 25, 2011. The worker appealed Appeals Resolution Officer decisions confirming her level of benefits at final review, quantum of the NEL award for CPD, and the MMR date.

The appeal was allowed in part.
The ARO's decision was limited to the quantum of LOE benefits at final review. However, the issue of entitlement to a redetermination of the worker's LOE benefits following the final review was a sequential issue that was within the Tribunal's jurisdiction to consider. The worker was granted entitlement for CPD well after the final review of her benefits, which was a material change in her entitlement. Despite repeated requests from the worker, the Board did not undertake a review of her LOE benefits after 2008.
The NEL award for the worker's CPD condition was increased to 30% with the MMR date being February 25, 2011. Her LOE benefits in July 2008 were correctly based on her actual earnings at that time. However, the development of the CPD condition represented a significant deterioration in her compensable condition, permitting a review of LOE benefits after the final review date. Her condition prevented her from earning any income in employment from February 25, 2011 and she was entitled to full LOE benefits to age 65.