(416) 222-2213Bruce Zevallos Wins Reconsideration Application for Severely Injured Worker
September 13, 2023 Workplace Safety and Insurance Appeals Tribunal Jurisprudence
Toronto workers’ compensation paralegal Bruce Zevallos successfully obtained an increase in the Non-Economic Loss (NEL) award the Worker received for headaches and a seizure disorder arising from a traumatic brain injury and successfully obtained entitlement for an Independent Living Allowance (ILA) and Personal Care Allowance (PCA) benefits.
In Decision No. 174/21 dated September 9, 2021, the Workplace Safey and Insurance Appeals Tribunal’s Panel determined that the Worker’s NEL award of 56%, and that the Worker was not considered “severely impaired”, and he was not entitled to ILA and PCA benefits.
On behalf of the Worker, Bruce Zevallos submitted a Reconsideration application to the Tribunal seeking a reconsideration of Decision No. 174/21 on numerous grounds.
By Decision No. 174/21R dated April 12, 2023, Vice-Chair Garth Dee allowed the reconsideration, in part, and determined that the threshold test for considering the determination of the Worker’s NEL award for an organic brain injury and headaches has been met. Vice-Chair Dee accepted the Worker’s position that the Panel erred in rating his NEL award for his brain injury headaches and seizures by taking into consideration evidence of the nature of the worker’s impairment significantly past the MMR date. Vice-Chair Dee accepted Mr. Zevallos’ submissions and the references to the line of decision-making confirming that a NEL award is paid retroactively to the date of MMR, and must reflect as closely as possible, the Worker’s conditions at the time of MMR. Vice-Chair Dee provided the Worker with the opportunity to make submissions regarding the appropriate NEL rating to be provided for his organic brain injury and headaches before rendering a final decision on this issue. As well, Vice-Chair Dee determined that depending upon the result of the reconsideration on the level of the Worker’s NEL award for his organic brain injury and headaches, it is possible that grounds may exist to also revisit the issues of ILA and PCA entitlement.
By Decision No. 174/21R2 dated July 19, 2023, Vice-Chair Dee found that the Worker’s NEL award for his organic brain injury seizure disorder and headaches is increased from 20% to 35% resulting in a total NEL rating exceeding 60% and considered to be “severely impaired” and entitled to ILA and PCA benefits.
Jurisdiction: Workplace Safety and Insurance Appeals Tribunal
Citation: 2023 CanLII 81508 (ON WSIAT) | Decision No. 174/21R2 | CanLII
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