WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 876/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 876/07 BEFORE: J. Noble: Vice-Chair HEARING: April 13, 2007 at St. Catharines Oral DATE OF DECISION: May 7, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1220 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 23, 2004; and WSIB ARO decision dated February 9, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Mr. D. Porter, Consultant Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 876/07 REASONS (i) Issues [1] The issues to be decided in this appeal are whether the worker is entitled to an increased quantum of the worker s future economic loss (FEL) award at the final review (R2) under Claim C; and whether the worker should have entitlement for a non-economic loss (NEL) redetermination for the worker s bilateral carpal tunnel syndrome under Claim A. [2] The worker s representative advised at the commencement of the hearing that the issue of the worker s entitlement to LOE benefits was withdrawn. The worker s representative also advised at the commencement of the hearing that the issue of job suitability was withdrawn. The worker s representative also advised that the issue of whether the worker should have entitlement for a recurrence was withdrawn. (ii) Background [3] Under Claim A the worker had a gradual onset of bilateral wrist discomfort, diagnosed as bilateral carpal tunnel syndrome (CTS) and an accident date of March 3, 1992 was assigned by the Board. The worker attributed the wrist problem to the repetitive nature of his work duties. The Board granted entitlement for the bilateral CTS. The worker was assessed for a noneconomic loss (NEL) award in 1993 and a 2 percent NEL award was granted. The worker returned to modified work with the accident employer. The worker s restrictions were to avoid repetitive movement at the wrists against resistance including repetitive gripping activity. [4] Under Claim B the worker injured his left elbow on August 12, 1993, when he struck it against a piece of equipment. The diagnosis was a contusion, and there was no lost time. The Board granted entitlement for health care expenses. [5] Under the Claim C the worker had a gradual onset of right elbow discomfort attributed to the repetitive nature of his work duties. The Board granted entitlement, and an accident date of January 6, 1996 was established. The worker was assessed for a NEL in November 1996 and a 2 percent NEL was awarded for right elbow tendonitis. The worker s employer was unable to accommodate him in suitable employment, and the worker was therefore referred for Labour Market Re-entry (LMR) services. [6] The worker s LMR assessment identified as a suitable employment and/or business (SEB) the target of Manufacturing Technician/Quality Control (NOC 223). The LMR program included training from September 1998 to April 2000, followed by creative job search training and 12 months of job search sponsorship by the Board. [7] The worker was reviewed for Future Economic Loss (FEL) purposes under the Claim C, and the FEL D1 time period ran from June 1, 1998 to June 1, The Board granted supplemental benefits to the worker while the worker participated in the LMR program. [8] The worker s FEL award was reviewed (R1) and the FEL R1 period ran from June 1, 2000 to June 1, The worker was continuing with his LMR program during this time period. The FEL R1 benefits were based upon the identified SEB. The Board paid

3 Page: 2 Decision No. 876/07 supplemental benefits for the balance of the worker s LMR program, which concluded in May [9] The worker did not find work in his SEB during the job search phase of the LMR program. In July 2001 the worker secured employment in a job with a dry cleaners company that the Board described as a driver position; however the wages for the driver position were significantly lower than the projected SEB wages. [10] The Board reviewed the worker s FEL award for the final FEL benefit review (R2) on June 1, The FEL R2 time period ran from June 1, 2003 to November 1, The Board reduced the worker s FEL award to a sustainability award at R2, based upon updated labour market wage data for a fully qualified individual in the SEB. The Board calculated that the worker s SEB earnings would restore the worker s pre-accident earnings capacity. The R2 FEL award was reduced to a sustainability award. [11] The ARO decision dated November 23, 2004, under Claim C, concluded that the worker s FEL award was appropriately determined to be a sustainability award for the FEL R2 period, from June 1, 2003 to November 1, The worker appeals this decision. [12] The worker requested entitlement to a recurrence in 2005 of the bilateral CTS, under Claim A, and a NEL re-determination. The worker related the increase in his right hand and wrist symptoms to his job duties at his new job. The Board determined that the worker s CTS condition was mild, and that the worker had not had a significant deterioration of his condition such that there was a permanent worsening. The ARO decision dated February 9, 2007 denied entitlement to a NEL re-determination with respect to the CTS, under Claim A. The worker appeals this decision. (iii) Medical Evidence [13] The worker was assessed for a NEL on June 4, 1993, with respect to bilateral carpal tunnel syndrome, under Claim A. The Board advised the worker on December 23, 1993 that the NEL award was 2 percent. [14] The worker underwent nerve conductions studies with respect to the bilateral carpal tunnel syndrome on February 14, Dr. J. Tokar, neurologist, interpreted the study results in her report dated February 14, 2005, and Dr. Tokar stated: Summary/Interpretation: Nerve conduction studies today included both median and the right ulnar nerves. These studies show evidence of a mild degree of conduction slowing of both median nerves at the wrist, consistent with bilateral mild carpal tunnel syndrome. The right ulnar nerve study appears to be normal. As an initial measure, nighttime splinting of the wrists is recommended. The patient will be retested in four months time. [15] In a report dated March 5, 2007, Dr. K. Stoltz, neurologist, stated that she saw the worker on March 2, 2007, and he was a 42 year old left handed male with pain and numbness in the hands. Dr. Stoltz stated that the worker s last nerve conduction studies were done in 2005 showing mild bilateral carpal tunnel syndrome. Dr. Stoltz stated that the worker has been wearing splints which seem to have lost their benefit, and the worker was taking an anti-

4 Page: 3 Decision No. 876/07 inflammatory medication. Dr. Stoltz stated that she would arrange for repeat nerve conduction studies and a further report would follow. [16] The worker underwent nerve conduction studies on March 8, In a report dated March 9, 2007 Dr. Stoltz stated: Nerve Conduction Studies: Nerve conduction studies are performed bilaterally in radial, median, and ulnar nerves. Amplitudes, latencies, and conduction velocities are within normal limits bilaterally in radial and ulnar nerves. On stimulation of right median nerve, sensory amplitudes are mildly diminished, but latencies are mildly prolonged and conduction velocities are mildly diminished. Median motor amplitude is normal, but distal motor latency is mildly prolonged. On stimulation of left median nerve, sensory motor amplitudes are normal. Sensory latencies are mildly prolonged and conduction velocity is mildly diminished. Median motor amplitude is mildly prolonged. Impression: There is electrophysiologic evidence of bilateral carpal tunnel syndrome, right greater than left. Compared with the previous testing performed in another lab, there seems to be a deterioration. He has failed nocturnal splinting. I have sent him to Dr. Bush for a surgical opinion. (iv) Other Information in the Case Record [17] In a letter dated April 24, 2004, from the worker s new employer (the dry cleaners company), the Co-owner of the new employer, Ms. L.M. stated: [The worker] has been with [the new employer] for a number of years now, and is considered a model employee by management. He was hired on the strength of a number of skills listed on his resume, including plant layout, quality control, the ability to work in a factory setting, and safety training. He has proven himself to be an honest, hardworking employee who can solve problems on his own. We have given him increasing responsibility for quality control, customer service, truck maintenance and driver scheduling. As a result, we have increased his pay from $50 a trip to $80. We anticipate offering him more hours and even more responsibility, especially for quality control, once we commence work on the contract servicing the new casino in [an Ontario city]. This should occur sometime in June. [The worker] understood this when he was hired. As we have become busier with new contracts, we have come to depend on [the worker] for his ability to make independent decisions with the best interests of the company in mind, especially as it pertains to maintaining the high level of quality control we need to maintain complete customer satisfaction. (v) Testimony [18] The worker testifies that after his LMR program was completed, he began working for a dry cleaners company as a driver in June of The worker testifies that he thought that he would progress to a different position. The worker states that he was a driver until late July of 2001 and then he became an accounts specialist for a local casino. The worker states that in this position he was responsible for servicing the local casino with respect to having their uniforms cleaned. [19] The worker states that as of July 2001, his job involved starting work at 5 a.m. The worker states that he would begin checking a number of uniforms in the plant that belonged to the casino. The worker states that he would check from 900 to 1100 uniforms in the morning. These uniforms were on trolleys on hangers. The worker states that he separated the pants from the shirts and he also looked for missing buttons and zippers. The worker states that he flipped

5 Page: 4 Decision No. 876/07 up every uniform and looked for the bar code. The worker states that he checked to ensure that the shirt collars were pressed on the seam and he would also look for stains. The worker states that he did all this checking at the same time and he went through all the garments once in order to check them in this way. [20] The worker testifies that after he performed his checking function, he would then drive over to the casino with the uniforms to deliver them. The worker states that at first he went with another driver and then in the fall of 2001 he started driving the uniforms over to the casino by himself. The worker states that he spends the majority of his work day involved in quality control duties, and not driving duties. [21] The worker states that he was working a split shift in that he was off work as of 9:30 a.m. or 10 a.m. until 1:00 p.m. The worker states that he would return to work and repeat the process in that he would check garments and then deliver them to the casino. The worker states that he finished work around 4:30 and worked 7.5 to 8.5 hours per day. The worker states that on average he checked a total of 2000 uniforms per day. [22] The worker states that his hands were causing him problems, and that this was becoming worse over the years until he went for medical advice in The worker states that he went to see Dr. Tokar who recommended that the worker wear night splints. The worker states that he also took Advil and rubbed a pain relieving cream into his wrists and arms. The worker states that in 2005 he had a new family doctor and when he complained to the new family doctor about his wrist pain, the new family doctor sent him to a specialist who was Dr. Tokar. [23] The worker states that in 2003 he started handling more uniforms and instead of handling 2000 units a day he began handling 3500 to 4000 units per day. The worker states that his hours of work increased around this time and he usually worked ten hours per day. [24] The worker states that in approximately February of 2005, he did not take any time off because of his wrists, rather he kept working. The worker states that he did not agree with Dr. Tokar s assessment of his wrist condition. He states that he tried to convey to her that something was wrong. The worker states that he did wear the night splints. The worker states that his wrist problem was not so much on the job as it was with respect to sleeping at night. The worker states that he woke up with pain and then sometimes he could not get back to sleep, and this was more of a problem than his actual job. [25] The worker states that he is scheduled for surgery with respect to his carpal tunnel syndrome on August 16, 2007 with Dr. Busch. The worker states that Dr. Busch is planning to operate on his right hand. [26] The worker states that he is restricted around the home with respect to performing maintenance duties such as shovelling the snow or running the snow blower. The worker states that he only does light laundry chores at home. [27] The worker states that when he went to the Appeals Resolution Officer hearing at the Board he knew that the ARO was going to speak to his employer at the dry cleaners company. The worker states that he told his employer that they should expect a call from the WSIB ARO.

6 Page: 5 Decision No. 876/07 The worker states that the employer told the ARO what she knew and there may have been a language barrier, but then the employer decided to put something in writing. [28] The worker states that in June of 2003 his wages were $50 per trip for a total of $100 a day. The worker states that in 2004 he got a raise so that the trips paid $80 each for a total of $160 per day. The worker states that now his pay has been restructured because the company had to restructure and now his daily pay varies from $120 to $140 per day. (vi) Submissions [29] The worker s representative submits with respect to the issue of the quantum of the FEL at R2, that Board policy OPM Document No states that if a worker is not working in the SEB, then the Board relies on market wages. However if the worker is working in their SEB, then the Board relies on current wages to set the FEL quantum. The worker s representative submits that the nature of the worker s duties is consistent with what he was trained for in his SEB, namely quality control. The worker s representative submits that this evidence indicates that quality control takes up most of the worker s day and the Board should have relied on the worker s actual earnings at the R2 point. [30] The worker s representative submits, in the alternative with respect to the issue of a FEL quantum at R2, that the worker s earnings capacity was wrongly calculated by the Board. The worker s representative submits that in order to arrive at the worker s FEL rate, the Claims Adjudicator combined the rate for the worker s SEB for his geographical area which was $24.98 per hour and a rate which was not for the worker s geographical area which was $31.08 and arrived at an earnings capacity rate of $28.03 by averaging. The worker s representative submits that this combination and averaging formula is not found in Board policy. The worker s representative submits that I should take the wage rate of $24.98 per hour which is the rate for the SEB in the geographical area, as being the worker s earnings capacity in order to calculate the FEL quantum at R2. [31] The worker submits that the worker s CTS condition has deteriorated. The worker s representative notes that a report from Dr. Stoltz dated March 9, 2007 states that the worker s condition has deteriorated compared with previous testing in another lab. The worker s representative notes that Dr. Stoltz did a test on March 8, The worker s representative submits that this is being compared with a test done on February 14, (vii) Law and Policy [32] Section 42 of the pre-1997 Worker s Compensation Act (the pre-1997 Act) is applicable to this appeal, and provides in part as follows: 42(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. (21) A worker may apply to the Board for a redetermination of the degree of the worker's permanent impairment, (a) if the Board has determined that the worker has a permanent impairment; and

7 Page: 6 Decision No. 876/07 (b) if the worker has suffered a significant deterioration of condition that was not anticipated at the time of the most recent medical assessment under this section. [33] Section 43 of the pre-1997 Act is also applicable to this appeal, and provides in part as follows: 43(1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury. (2) An injured worker ceases to be eligible for compensation for future loss of earnings when the worker reaches sixty-five years of age. (3) Subject to subsection (8), the amount of compensation payable to a worker for future loss of earnings arising from an injury is equal to 90 per cent of the difference between, (a) the worker's net average earnings before the injury; and (b) the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment. [34] Pursuant to section 126 of the Workplace Safety and Insurance Act (WSIA) the Board advised that the following Policy Packages are applicable to this appeal: #35 (Revision #7) Continuing Entitlement/NEL DOA from January 2, 1990 to December 31, 1997; #62 NEL Quantum; #266 FEL Decisions as of January 1, 1998; and #300 Decision Making/Benefit of Doubt/Merits and Justice. [35] Included in these Policy Packages is Operational Policy Manual (OPM) Document No Redeterminations and Recalculations which provides in part as follows: Policy The WSIB may consider a worker's request for a redetermination of his/her existing noneconomic loss (NEL) benefit provided that the worker's degree of permanent impairment was previously determined to be greater than zero the worker's condition has deteriorated significantly since the last NEL medical assessment, and 12 months have passed since the worker's last NEL decision. Significant deterioration Definition A "significant deterioration" is a permanent worsening of the work-related medical condition occurring after the most recent NEL medical assessment. The significant deterioration must be demonstrated by a substantial change in medical findings. Evaluation Workers applying for a NEL redetermination must be examined by their treating physician. To assist the physician in identifying how the worker's medical condition has changed, workers may provide their physician with a copy of their last NEL medical assessment report and any other supporting medical reports.

8 Page: 7 Decision No. 876/07 The physician then reports to the WSIB on the worker's clinical history, any measurable changes in the worker's condition, and any new medical findings. This report may include changes in the worker's range of motion complications in the worker's medical condition evidence of neurological dysfunction an increase in the worker's medical treatment, and information about lost time from work. Workers should identify each body part/system that has deteriorated and for which a NEL redetermination is being requested. Decision-makers review the physician's report and all medical information added to the file since the last NEL medical assessment. The most recent medical findings are compared with the condition described in the last NEL medical assessment report to determine if there is evidence of a significant deterioration. Whenever necessary, decision-makers may request additional medical information, consult WSIB medical staff, and/or ask the worker to be examined by a specialist. The WSIB pays for physicians'/specialists' reports as long as they contain relevant information that assists in the adjudication of the claim, see , Payment of Medical Assessments/Reports Requested for Adjudication. Permanent worsening date After decision-makers confirm that a worker meets the criteria for a NEL redetermination, the permanent worsening date (PWD) must be determined. The PWD is the date the permanent worsening begins. Increases in the NEL benefit are payable from the PWD. The PWD is determined based on the nature of the worsening. If the work-related impairment gradually worsened, the PWD is determined as the date the permanent worsening and/or deterioration began. If the work-related impairment suddenly worsened as a result of a recurrence for which the worker may have received benefits and medical rehabilitation, the PWD is determined as the date the worker's condition stabilized and no further significant improvement was likely. In the case of sudden worsening (or recurrences), the decision-maker may also have to consider benefit entitlement (i.e., FEL supplementary benefits for claims with accident dates between January 2, 1990 and December 31, 1997 and LOE benefits for claims with accident dates on/after January 1, 1998) to the date when the worsening or actual recurrence occurred. [36] Also included in these Policy Packages is OPM Document No Reviewing FEL Benefits which provides in part as follows: Final review The final FEL benefit review must occur before the end of the 60th month post-initial FEL determination. In preparation for the final review, the decision-maker initiates a review at 55 months post-initial FEL determination by requesting that the worker provide information relating to his/her earnings (including CPP/QPP disability benefits paid because of the work-related injury/disease)

9 Page: 8 Decision No. 876/07 employment, and health (medical) status. If the worker fails to respond after one follow-up, the FEL benefit is withheld at 58 months post-initial FEL determination. The FEL benefit is not restored until a full review occurs. At that time, the FEL benefit may be paid retroactively to the point when it was withheld. If the final review does not occur by the 60th month post-initial FEL determination, the FEL benefit cannot be restored retroactively. Consideration at all reviews Changes in wage guide information During a review, the WSIB must adjust the FEL benefit to reflect the most recent wage guide information available if the worker returned to work, but not in a job identified by the SEB is not currently employed, or never returned to the workforce. If the WSIB originally used entry-level wages to deem (i.e., determine) the post-injury earnings, updated entry-level wages are used. If the WSIB originally used mid-range wages to deem the post-injury earnings, updated mid-range wages are used. When conducting the final review of a FEL benefit, the WSIB deems the worker's postinjury earnings again, using updated wage guide information, and the amount a fully experienced worker would earn in the identified SEB. Actual wages from SEB-identified job In conducting a FEL review for a worker employed in a SEB-identified job, the WSIB uses the worker's actual earnings to pay the FEL benefit, even if the earnings are not consistent with recent wage guide information. Using changes to wage guide information to pay FEL benefits Returned to work in SEBidentified job Returned to work, but not in SEB-identified job Not currently employed Never returned to work Periodic reviews Use actual wages Update wages for the SEB based on original entry or mid-range wages Update wages for the SEB based on original entry or midrange wages Update wages for the SEB based on original entry or mid-range wages Final review Use actual wages Update wages for the SEB for a fully experienced worker Update wages for the SEB for a fully experienced worker Update wages for the SEB for a fully experienced worker

10 Page: 9 Decision No. 876/07 Earnings restored During a review, if the decision-maker finds that a worker's earnings are restored but the worker continues to have an impairment, the worker is entitled to a sustainability benefit, see , FEL Sustainability Benefit. This ensures that the worker can receive a FEL supplement if necessary. For information on the payment and review of FEL supplements, see , Supplement for Programs and LMR Plans Before and After 24 Months. (viii) Conclusions 1. NEL redetermination for CTS [37] On the issue of whether the worker should have entitlement for a NEL redetermination for the worker s bilateral carpal tunnel syndrome, I find for the worker. [38] I find that the weight of the medical evidence indicates that the worker s CTS condition has significantly deteriorated since the last NEL assessment in In particular, I find that the worker s condition deteriorated in I find that pursuant to the law and Board policy, the worker is entitled to a NEL redetermination for the bilateral carpal tunnel syndrome. [39] I note that the worker was last assessed for NEL with respect to the CTS condition in I observe that the NEL assessment notes provided by the assessing physician are very brief, and are not particularly descriptive. I observe that the worker s NEL award, based on the 1993 NEL assessment, was determined to be 2 percent. [40] I also note that the worker underwent nerve conduction studies with respect to the bilateral CTS on February 14, These studies were interpreted by the neurologist Dr. Tokar in February of [41] I further note that the worker underwent nerve conduction studies with respect to the bilateral CTS on March 8, These studies were interpreted by the neurologist Dr. Stoltz, on March 9, In her reports dated March 5 and March 9, 2007, Dr. Stoltz indicated that she had reviewed the worker s last nerve conduction studies which were done in 2005, and which showed mild bilateral carpal tunnel syndrome. Dr. Stoltz stated, in her report dated March 9, 2007, that there seemed to be a deterioration in the worker s CTS condition, compared with the previous testing performed in another lab. In my view, the medical evidence indicates that Dr. Stoltz s is of the opinion that the worker s CTS condition in 2007 had deteriorated since the February 2005 testing was performed. I accept the medical opinion of Dr. Stoltz, and I place significant weight on her opinion, since as a neurologist she is qualified to provide an opinion concerning whether a CTS condition has deteriorated. I also place significant weight on the medical opinion of Dr. Stoltz since she examined and tested the worker in 2007 prior to providing her medical opinion. [42] I also observe that Dr. Stoltz referred the worker for a surgical opinion with respect to the CTS condition. I further observe that the worker testified at the hearing that he is scheduled for right hand/wrist surgery with respect to the CTS condition, on August 16, 2007 with Dr. Bush. I accept the worker s testimony, as it is consistent with the reporting of Dr. Stoltz which stated that the worker would be referred for a surgical opinion. In my view, the fact that the worker now

11 Page: 10 Decision No. 876/07 requires surgery to address his CTS symptoms, indicates that his condition has significantly deteriorated. I note in this regard that pursuant to OPM Document No Redeterminations and Recalculations an increase in the worker s medical treatment can be one of the signposts of a significant deterioration in the worker s condition. In this case I find that the medical evidence, including the evidence that the worker now requires surgery, indicates that the worker s CTS condition has significantly deteriorated and that the deterioration is permanent. [43] I note that the Board apparently did not have the reports from March of 2007 from Dr. Stoltz, at the time that the Board made its decision to deny entitlement for a NEL assessment. Indeed, I agree that the nerve conduction testing performed in 2005 did not disclose a significant deterioration in the worker s CTS condition, and this was the medical information that would have been before the Board adjudicators. I find that the worker s CTS condition deteriorated since 2005, and I find that the significant deterioration was evident as of March of [44] The Board is directed to provide the worker with a NEL redetermination. 2. Quantum of FEL at R2 [45] On the issue of whether the worker should be entitled to an increase in the quantum of the FEL award at the final review (R2), I find for the worker. [46] I find that the weight of the evidence indicates that at the time of the worker s FEL R2 review on June 1, 2003, the worker was working in his SEB of Quality Control. I find that, in accordance with Board policy and guidelines, the worker s actual wages at the time of the FEL R2 review should therefore be used to calculate and pay the worker s FEL benefit. [47] I observe that the worker testified in detail at the hearing about his job duties with the new employer, the dry cleaners. The worker testified that beginning in July of 2001, his duties included extensively checking approximately 900 to 1100 uniforms twice per day, and delivering these uniforms to the employer s client a local casino twice a day. The worker testified that beginning in 2003, the number of uniforms that he checked and delivered increased to 3500 to 4000 units per day. I note that the worker testified that checking the uniforms consisted of looking for missing buttons and zippers, checking the pressing jobs on shirts, looking for stains, and checking for the bar code on each unit. The worker testified that he would hold back uniforms if they were not up to the company s standards. I find that these duties are in the nature of quality control duties. [48] I further observe that the worker testified that he spends the majority of his work day involved in quality control duties, and not driving duties. I accept the worker s testimony in this regard since the worker was a credible and straightforward witness, and since the worker s testimony in this regard is consistent with other evidence in the Case Record, including the letter dated April 24, 2004 from the worker s new employer (the dry cleaners). I find that the worker spends the majority of his work day performing quality control duties, and as such I find that the worker is employed in his SEB of quality control, and has been so employed since July of [49] I observe that in the letter dated April 24, 2004, from the worker s new employer (the dry cleaners) the new employer states that the worker was hired in part based on the fact that he had

12 Page: 11 Decision No. 876/07 skills in the area of quality control, and that he has been given increasing responsibility for quality control functions. [50] I am satisfied based on the worker s testimony and based on the letter from the new employer dated April 24, 2004 contained in the Case Record that the worker is working in his SEB of quality control, and that he was working in his SEB at the time of the final FEL review (R2) in June of [51] I note that pursuant to OPM Document No Reviewing FEL Benefits that in circumstances where a work has returned to work in a SEB-identified job, the Board uses the worker s actual wages to calculate and pay the worker s FEL benefit at the time of the final FEL review (R2). I find that the worker s FEL benefits at the point of the final review (R2) should be calculated and paid based on the worker s actual wages.

13 Page: 12 Decision No. 876/07 DISPOSITION [52] The appeal is allowed. [53] The worker has entitlement for a NEL redetermination for the bilateral carpal tunnel syndrome, under Claim A. The Board is directed to provide the worker with a NEL redetermination. [54] The worker has entitlement for an increased quantum of the worker s FEL award under Claim C at the final review (R2) since the worker was working in his SEB at the time. The Board is directed to use the worker s actual wages to calculate and pay the worker s FEL benefit at the time of the final FEL review (R2). DATED: May 7, SIGNED: J. Noble.