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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 2425 15
12/1/2015
S. Netten - E. Tracey - D. Besner

  • Aggravation (preexisting condition)
  • Permanent impairment {NEL}
  • Apportionment (non-economic loss) (preexisting conditions)

The worker struck his knee while climbing a ladder in January 2010. He had previously undergone non-compensable knee surgery in 2005 for a fractured patella, and was left with wires and pins in his knee and a permanent knee abnormality. The worker underwent surgery in January 2010, which was not successful, and required further surgery in February 2011. The Board granted the worker a 12% NEL award. The employer appealed a decision of the Appeals Resolution Officer, which did not limit entitlement to an aggravation basis, did not limit the extent of entitlement and did not apportion the NEL award to reflect the pre-existing condition. Board policy provides that the period of time for evidence of a pre-accident impairment cannot be defined but suggests a time frame of one or two years as a guide. In this case, the worker was able to perform strenuous work after the non-compensable surgery in 2005. However, the pre-existing condition was relevant to his circumstances in January 2010. Decision-makers are directed to consider evidence of pre-existing impairment, symptoms, treatment, restrictions and impact on employment as a means to determine the continuing significance of a pre-existing condition. A remote or asymptomatic prior condition may have no medical bearing on subsequent injury in many cases. In this case, however, the worker's physical impairment had not resolved and the very existence of fixation hardware was central to the workplace injury and its sequelae. The worker had a pre-accident injury which required health care and disrupted employment in the past and which produced a permanent physical impairment that was medically relevant at the time of the workplace injury. The Panel concluded that the worker had entitlement on an aggravation basis. The aggravation resulted in permanent impairment. Benefits are not limited to some temporary period following the workplace injury and the worker was entitled to a NEL award. The employer relied on Decision No. 823/09 which allowed entitlement on an aggravation basis but limited entitlement to the period encompassing surgery and recovery only. The Panel distinguished that decision on the basis that the worker's condition had returned to its pre-accident state following recovery from surgery. In any event, to the extent that Decision No. 823/09 stands for the principle that entitlement for surgery on an aggravation basis does not extend to the outcome of that surgery if the surgery would have eventually been required for non-compensable reasons, the Panel disagreed with it. The worker was granted a 12% NEL award for permanent impairment. He had a pre-accident impairment, as defined in Board policy. The NEL award should be reduced to reflect that pre-accident impairment. In accordance with the policy for a non-measurable condition, the Panel found that the pre-accident impairment was moderate in its effect and that, accordingly, the NEL award should be reduced by one-quarter. The Panel noted that new Board policy, not applicable to this appeal, contains different interpretation of the requirement regarding the pre-existing condition for NEL reduction. The appeal was allowed in part.