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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 204 14
2/12/2014
S. Netten

  • Board Directives and Guidelines (apportionment)
  • Permanent impairment {NEL} (degree of impairment) (shoulder)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker suffered a right shoulder injury in 2009. The Board rated the shoulder impairment at 36%, which was the equivalent of a whole person rating of 22%. The Board then reduce the 22% rating by one-half due to a severe pre-existing condition, resulting in a NEL award of 11%. The worker appealed. The Vice-Chair confirmed the shoulder rating of 36%, based on shoulder surgery that was more invasive than acromioplasty. Pursuant to the Board's rating guideline, the worker was assigned a 12% rating for the surgery. This was combined with a 27% rating for abnormal motion, pursuant to the AMA Guides, resulting in the 36% rating. The 36% shoulder rating was correctly converted to a 22% whole person impairment. Board Operational Policy Manual, Document No. 18-05-05, on the effect of a pre-existing impairment, provides for apportionment of NEL benefits in certain circumstances. It refers exclusively to pre-existing impairment, except when incorporating, by reference to Document No. 14-05-03, the term pre-existing disability from the SIEF policy. There is no reference to the term pre-existing condition. There is no definition of pre-existing (or pre-accident) impairment in Document No. 18-05-05, but pre-accident impairment is defined in the Board policy on aggravation in Document No. 11-01-05, as a condition which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. Considering these documents, the Vice-Chair concluded that a pre-existing impairment exists where there have been periods of disability, impairment or illness in the past which have required treatment and disrupted employment. A pre-existing condition alone, being an underlying or asymptomatic condition made manifest, is not sufficient to permit reduction of NEL benefits. The worker was entitled to the 22% NEL award without reduction. The appeal was allowed.