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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 1072 14
9/24/2014
S. Netten

  • Permanent impairment {NEL} (degree of impairment) (back)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides)
  • Labour market re-entry {LMR} (cooperation) (vacation)

The worker suffered a back injury in September 2011, for which he was granted a 19% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits for the period from July 16, 2012 to August 16, 2012, while the worker was on vacation, and denying an increase in the NEL award. Board policy provides for up to three weeks of vacation time per year, if agreed upon by the worker and the decision-maker and if it does not interfere with the worker's ability to fulfil obligations. In January 2012, the Board approved a five-week absence for the worker to visit his ailing aunt out of the country. At that time, the worker had not yet begun his active rehabilitation. Thus, the worker had already been granted more than the allotted three weeks of vacation time in 2012. There was no legitimate reason for suspending his medical rehabilitation between July 16 and August 16, 2012. The Board adequately informed the worker of the consequence of non-co-operation. The worker was not entitled to LOE benefits during the period in question. The worker's NEL award consisted of an 11% rating for reduced range of lumbar motion combined with a 9% rating for surgically treated disc lesions with residual symptoms involving five disc levels (T10 to L3). The worker submitted that he was entitled to an additional rating for compression fractures at T12 and L1. Disc lesions and fractures are both considered to be impairments due to specific disorders of the spine within the AMA Guides. Table 53 codifies the ratings for such disorders. The principles for calculating impairment in the AMA Guides state that, if applicable, use Table 53 or Table 54 to obtain a diagnosis-based percentage of impairment. Only one of the two tables should be used, and only the primary diagnosis should be considered in an evaluation. Accordingly, only the primary diagnosis responsible for the permanent impairment is to be rated in Table 53. The Vice-Chair agreed with the choice of the NEL clinical specialist of the multi-level surgery as more responsible for the ongoing impairment than the initial compression fractures, thereby constituting the primary diagnosis. There was no basis under the AMA Guides to either replace the 9% rating for multi-level surgery or to add a separate rating for the compression fractures. The Vice-Chair confirmed the 19% rating as determined by the Board. The appeal was dismissed.