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WORKERS' COMPENSATION - Permanent partial disability

Tuesday, April 30, 2019 @ 8:36 AM  

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Application by Lissimore for judicial review of a decision of the Workers’ Compensation Appeal Tribunal. The decision confirmed the decision of the Workers’ Compensation Board that awarded the applicant a permanent partial disability award following a shoulder injury she suffered in 2010 while working as a licensed practical nurse. The applicant returned to work on a part-time and restricted basis in 2013 after undergoing surgery and extensive rehabilitation. The Board estimated the applicant’s permanent partial disability pension based on a 4.6 per cent for loss of range of motion. The applicant was also awarded 2.5 per cent for chronic pain and 0.5 per cent for cold intolerance, for a total functional award of 7.6 per cent of total disability. In confirming the Board’s decision, the Tribunal found Item (B) of the Permanent Disability Evaluation Schedule was rationally supported by the Workers Compensation Act and was not patently unreasonable. The Tribunal found it did not have authority to depart from the Schedule.

HELD: Application dismissed. Section 23(1) of the Workers Compensation Act required the Board to consider whether an average worker with the applicant’s shoulder injury would be expected to have reduced earnings capacity with reference to the Schedule. As the Board was empowered to take that approach by section 23(2) of the Act, it was not patently unreasonable for the Tribunal to determine that the use of the Schedule to measure loss of income earning capacity was not unlawful. Nor was it patently unreasonable for the Tribunal not to consider the applicant’s loss of earnings as a relevant factor in determining the amount of her awarded under s. 23(1) of the Act.

Lissimore v. Workers' Compensation Appeal Tribunal, [2019] B.C.J. No. 487, British Columbia Supreme Court, H. MacNaughton, March 27, 2019. Digest No. TLD-April292019004