- Merits and justice
- Pensions (arrears)
The worker appealed a decision of the ARO, which allowed entitlement to a reassessment of the worker's permanent disability (PD) award for the right shoulder, but denied entitlement to interest payments on the permanent disability arrears he received as a lump sum on July 15, 2008.
The appeal was allowed, in part. In July 2008, the worker received PD awards of: 5% for bilateral hand injuries with full arrears; 5% for the right shoulder with arrears from August 19, 2007; and, 3% for facial disfigurement with full arrears. The arrears were paid up to July 1, 2008. A number of Tribunal decisions have considered the interaction of the Board's merits and justice policy with its policy on retroactive interest payments. The Vice-Chair agreed with and adopted the analysis found in Decision No. 15/09 regarding the merits and justice provision: "...it is to be used in those cases where exceptional circumstances exist such that the application of Board policy would result in manifest unfairness." The Vice-Chair found that there were exceptional circumstances that warranted the payment of retroactive interest for the PD arrears awarded for the hands and facial disfigurement. In particular, the Board had an internal medical opinion that supported an assessment by the worker's plastic surgeon in 1982, and its failure to address this further was a significant error. The worker was deprived of a significant amount of benefits for a considerable length of time. Noting that the intention of the policy is to place workers in the same financial position that they would have been in had the Board originally made the appropriate decision, the Vice-Chair found that to deny the payment of interest to this worker solely because the correction was made at the operational rather than the appeals level would be both unfair and contrary to the overall intent of the policy. It was concluded that the payment of interest for the hands and facial disfigurement PD arrears was appropriate in this case.Interest payments for the worker's right shoulder award were not considered appropriate as there was a lack of medical evidence to support a permanent disability of the right shoulder until 2008. There were no exceptional circumstances that warranted the payment of retroactive interest for the PD arrears awarded for the right shoulder. However, the worker was entitled to interest on the 5% PD pension arrears for the hands and the 3% PD pension arrears for facial disfigurement from January 6, 1989. While arrears on these PD pension awards were granted dating back to the date of accident in May 1980, the Vice-Chair found that it would not be appropriate to award interest prior to January 6, 1989, since interest is not generally available to any worker prior to January 6, 1989 (see Decision No. 50/09).