Highlights of Noteworthy Decisions

Decision 1189 21
E. Smith
  • Continuing entitlement
  • Credibility
  • Loss of earnings {LOE} (eligibility) (impairment)

The worker had two accidents to the low back, the first of which occurred on March 10, 1993, when the worker was 25 years old. He had a further injury which occurred on April 8, 2009 when he was 41 years old.

The worker has been granted a 16% non-economic loss (NEL) award under the 1993 claim. The Board found that the worker's low back condition returned to its pre-accident level after the 2009 accident and so no increase in the NEL award was granted as a result of the 2009 injury.
In this appeal the worker was seeking entitlement for surgery he had on his low back on March 20, 2019 including: entitlement for full loss of earnings benefits from April 21, 2014, when LOE benefits ended after the 2009 accident, with a finding that the SO of light assembly work was not suitable; and/or entitlement for the back surgery that the worker underwent on March 20, 2019.
Decision Nos. 818/99, 818/99R, and 818/99R2, confirmed 50% temporary benefits from July 28, 1993 until October 14, 1994. Decision No. 818/99, after finding that the worker's credibility was at issue in that appeal, accepted that the worker had suffered a permanent impairment. However, the Panel referred the question of the level of the permanent impairment back to the Board to be reassessed, and provided an instruction that the NEL assessor be made aware of the prior inconsistencies in the medical reporting set out in the Panel's decision. Following this decision, the Board granted the worker a 16% NEL award.
The Vice-Chair found that likely the worker had returned to his pre-accident level of impairment and did not have an ongoing impairment from the 2009 accident at least by April 2014, if not well before that date, with the result that he was not entitled to ongoing LOE benefits. The Vice-Chair found further that the past difficulties with credibility were relevant in this appeal given the fact that there have been further issues about credibility with respect to the later time period. The fact that a worker was not credible did not disentitle him to benefits under the Act. However, it did affect how the evidence could be assessed. The worker has engaged in a sufficient pattern of questionable behavior that his testimony was not relied upon except as supported by objective evidence.
The worker's representative referred to Decision Nos. 1167/13 and 1167/13R for the proposition that a worker it was not necessary to show the worker's condition is below his NEL in order to find he has entitlement to LOE benefits. What must be shown is that the worker's loss of earnings during the period in question was the result of the compensable injury. The Vice-Chair noted that this decision did not distinguish between a period prior to and after MMR. The Vice-Chair noted however that Decision No. 1167/13R did not suggest that LOE benefits would have been payable if there had been no continuing injury which resulted from the accident in issue. Section 43(1)(d) of the Act provides that LOE benefits are only payable during the time period that there is a continuing impairment from an injury. While it was not necessary for there to be a NEL award, or for the injury to be at MMR, there must at least be an ongoing temporary compensable injury or impairment if there is no determination of an ongoing permanent impairment. As such a loss of earnings after a compensable injury resolved cannot be said to "arise" from that injury under section 43(1); such a loss of earnings is not compensable and, by itself, is not sufficient to ground a claim for LOE benefits.
The LOE benefits sought in this appeal were under the 2009 claim. Given the finding that the 2009 strain injury likely resolved prior to April 2014, there was no entitlement to ongoing LOE benefits after the Board closed those benefits in 2014.
With respect to entitlement for the surgery, the Vice-Chair noted that Decision No. 818/99 accepted that the worker suffered a compensable accident which involved a strain injury that was superimposed on the spondylolythesis, leading to permanent impairment and the expectation of further recurrent problems. Based on the medical evidence, the 1993 accident likely was a significant contributing factor in the later deterioration. It could not be known when or to what extent the underlying spondylolysis/spondylolisthesis would have become symptomatic or have led to later nerve compression absent the 16% level of permanent impairment which resulted from the 1993 accident.
The worker therefore was granted entitled for the March 2019 surgery. The extent of benefits flowing from this claim was referred back to the Board for further adjudication subject to the usual rights of appeal.
The appeal was allowed in part.