In a recent ruling, the Alberta Appeals Commission has upheld a Workers’ Compensation Board (WCB) decision to grant temporary partial disability (TPD) benefits to an injured worker.
The employer had appealed the WCB decision, which initially granted the worker TPD benefits due to injuries sustained in a delivery vehicle accident.
The worker was rear-ended in the accident and initially claimed compensation for a neck strain injury. Subsequently, the WCB accepted additional entitlements for a back strain, right hip strain, right knee sprain, adjustment disorder with mixed anxiety and depressed mood, post-traumatic stress disorder, and an aggravation of pre-existing cervical degeneration.
While the worker was able to return to modified work duties involving sorting, there were continued restrictions on professional driving. The employer claimed that the worker had been cleared by a physician to work four hours per day, but the reduced hours were due to a non-compensable condition.
In its decision on June 2, 2021, the Dispute Resolution and Decision Review Body (DRDRB) reviewed the physical demands analysis of the worker’s position and confirmed that the regular job required close to four hours of driving per day while performing deliveries. The DRDRB also found that the worker experienced a loss of earnings after October 30, 2019, when the short-term disability benefits ended.
The employer submitted a notice of appeal on June 2, 2022, and expressed readiness to proceed with a documents-only hearing in a letter dated December 9, 2022. Both the WCB and the worker were informed of the hearing details but chose not to participate.
The employer’s appeal submission was received on June 7, 2023, and circulated to the appeals panel. The employer disagreed with the DRDRB decision and argued that the worker could have been accommodated until April 7, 2022, when there were no longer any permanent vacant positions within the worker’s compensable restrictions. The employer also stated that temporary modified part-time duties were available to the worker but he chose to retire on February 28, 2022, before an internal job search for a suitable permanent position took place.
After reviewing the evidence and considering the relevant legislation and policies, the Appeals Commission addressed key questions, including whether the worker was entitled to TPD benefits effective October 31, 2019. They analyzed the medical evidence and determined that the worker had compensable temporary work restrictions that prevented him from returning to his full pre-accident job, and these restrictions caused a loss of earning capacity.
The employer’s arguments regarding the worker’s non-compensable restrictions were considered, but the Appeals Commission found that the psychological and neck injuries sustained in the accident impacted the worker’s ability to perform driving duties and were related to the compensable disability. They concluded that the worker was eligible for TPD benefits effective October 31, 2019.
In their decision, the Appeals Commission confirmed the DRDRB’s decision from June 2, 2021, and denied the employer’s appeal. The worker was deemed entitled to wage top-up benefits for temporary partial disability from October 31, 2019, onwards.
For more information, see Decision No.: 2023-0243, 2023 CanLII 60284 (AB WCAC)
