Workers Compensation New Developments in Recurrences

Good news for those who have not appealed in time and have suffered a recurrence of an injury. The worker in this case had received a decision from the Board which allowed his recurrence. Like most workers, he did not realize the legal implication and more importantly the monetary implications of this decision. His orginal injury occurred in 1990 and he was making $10.00/hour. When he was reinjured he was earning $18.00/hour. The Board used the 1990 earnings to calculate his future benefits economic benefits. When he realized this, he appealed this decision.

Several years later the worker asked that the Board to review the circumstances of whether this reinjury was a new accident or a recurrence. If it was classified as a new accident the worker would be paid his most recent earnings, the $18.00/hour. The Board stated that he was out of time to appeal.

The Workplace Safety and Insurance Tribunal recently allowed the worker to proceed forward with the appeal on the question of whether the reinjury was a new accident or recurrence. They allowed an extension of time limits, stating that the refusal to hear a worker's appeal could result in a substantial miscarriage of justice. They further indicated: " There is a real possibility that such earnings basis appeals by necessary implication involve an assessment of the worker's injury, whether cuased by recurrence of new accident" The worker did not likely understand the ramifications of the recurrence discussion on his Future Economic Loss supplement and as such hid not have substantive notice. He did act diligently once he saw aware of the real issue. Also, there was no adequate assessment on file with reference to policy regarding the worker's recurrence and as such one could accept no real decision was made."

This case has opened the door for those who have missed their time limits and are currently being paid something other than the most recent earnings following a work injury.