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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 2421 12
6/18/2013
S. Darvish - B. Davis - J. Crocker

  • Board Directives and Guidelines (NEL) (preexisting condition)
  • Non-economic loss {NEL} (preexisting condition)
  • Permanent impairment {NEL} (degree of impairment) (elbow)
  • Permanent impairment {NEL} (degree of impairment) (enhancement factor)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides) (combined values)

The worker was born with a congenitally missing right arm. He was fitted with a below-elbow prosthesis. The worker suffered left elbow epicondylitis in 2004, for which the Board granted a 5% NEL award. The Board also granted entitlement for psychotraumatic disability, but only on a temporary basis. The worker appealed a decision of the Appeals Resolution Officer denying an increase in the 5% NEL award for left elbow impairment and denying a NEL award for the psychotraumatic disability. In Decision No. 2421/12I, the Panel found the worker was entitled to a NEL assessment for permanent psychotraumatic disability. Regarding the NEL award for left elbow impairment, the worker submitted: the NEL award did not take into account loss of grip and pinch strength; when the 8% rating for the left elbow was converted to 5% whole person impairment rating, the worker should have received a higher rating because he had only one arm. The Panel first dealt with the loss of strength issue. The AMA Guides establish upper extremity ratings based on amputation or restricted range of motion. In general, grip and pinch measurements are functional tests, and are not used for evaluating impairment. However, if loss of strength represents an additional impairing factor not already taken into account, it may be measured and the loss rated. With respect to loss of strength, the AMA Guides provide ratings for various disorders of the peripheral or central nervous system. These guidelines also apply to rate various degenerative neuro-muscular conditions. To avoid duplication, separate strength impairment values are not applied. Hand strength and its measurement are affected in the presence of amputation and loss of motion of the digits and by disorders of bones, joint and musculo-tendinous units. These anatomical impairments are rated only according to guidelines in section 3.1 b, c, d, I and j of the Guides. There was no evidence that the worker suffers from any of these anatomical impairments. The AMA Guides allow for loss of strength to be considered as a separate impairment for NEL assessment purposes in upper extremity injuries when the loss represents an additional impairing factor that has not already been taken into account elsewhere in the assessment process. Since it appears that the worker's loss of strength has not already been considered, the worker was entitled to recalculation of the NEL award. The Panel then dealt with the whole person impairment issue. The Panel found that increasing the worker's NEL award for his compensable left arm epicondylitis to take into account his non-compensable congenital right arm disability would be contrary to ss. 46 and 47 of the WSIA, which provide that a NEL assessment is to compensate for permanent impairment resulting from a workplace injury and would also be contrary to Board policy, which provides a mechanism for factoring out pre-existing, non-compensable injuries. The worker was, in effect, asking for an enhancement factor to recognize the pre-existing condition. However, previous Tribunal decisions have found that the NEL system, as opposed to the pension system, does not allow for an enhancement factor to be added to a NEL award. The worker was not entitled to an increase in the NEL award due to his non-compensable right arm disability. The appeal was allowed in part.