- Strains and sprains
- Non-economic loss {NEL}
- Permanent impairment {NEL}
- Permanent impairment {NEL} (degree of impairment) (knee)
- Permanent impairment {NEL} (degree of impairment) (shoulder)
- Loss of earnings {LOE} (termination of employment)
- Vaccination (COVID-19)
The issues to be decided in this appeal were as follows: a) whether the worker had entitlement to a permanent impairment and Non-Economic Loss (NEL) assessment for her right hand, right wrist and neck injuries; b) whether the quantum of the NEL award for the worker's right shoulder and right knee impairments had been correctly calculated; and, c) whether the worker had entitlement to Loss of Earnings (LOE) benefits from December 15, 2021.
The appeal was denied. The Panel found that there was insufficient evidence to establish an ongoing permanent impairment to the worker's right hand, right wrist and neck as related to her compensable sprain/strain-type injuries. The Panel also found that the worker's NEL award for the permanent impairments to her right shoulder and right knee were correctly calculated. There was no basis in law or Board policy to vary this determination. Furthermore, the issue of potential LOE benefits entitlement from December 15, 2021 arose in the context of the worker's termination from her employment due to the fact that she did not receive the COVID-19 vaccine. Her employer had mandated that proof of vaccination be provided, and terminated the worker's employment when she did not provide such proof in November/December 2021. The worker had been explained that non-compliance with this policy could result in "discipline up to and including termination of employment". The Panel found that additional LOE benefit entitlement following the worker's termination was not warranted in the circumstances. The availability of ongoing work, which was permanent in scope and suitable from a medical perspective, ended due to a non-claim related reason. It was not related to the worker's compensable injuries (see Decision No. 904/14). The worker's decision to not meet her vaccine-related employment obligations brought about her dismissal, and this was an intervening event that broke the chain of causation between her pre-injury earnings and her post-injury earnings. Subsection 43(2) of the WSIA was interpreted in a manner that respected the intent of subsection 43(1), which only provides LOE benefits entitlement for an injury-related loss of earnings.