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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 1275 18
8/20/2018
D. McBey

  • Permanent impairment {NEL} (degree of impairment) (back)
  • Words and phrases (impairment)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides)
  • Apportionment (non-economic loss) (preexisting conditions)
  • Board Directives and Guidelines (apportionment) (pre-existing condition) (measurable impairment)

The worker suffered a low back injury in July 1993, for which the Board granted the worker a 25% NEL award, later increased to 32%. After surgery in 2013, the Board redetermined the NEL award, making some adjustments to the rating but confirming the overall combined value award of 32%. The Board further found that a pre-existing low back condition should be rated at 7%, which would produce a lower rating than the current rating. In the circumstances, the Board maintained the current 32% award. The worker appealed.
The Vice-Chair reviewed the NEL rating. The worker had 5 degree range of lateral flexion bilaterally. Table 61 of the AMA Guides provides ratings only of 5% for 0 degrees and 3% for 10 degrees. The Vice-Chair agreed with the approach in Decision No. 448/16, and assigned a rating at the intermediate value of 4%. This had the effect of increasing the rating for abnormal back motion from 20% to 22%.
The Vice-Chair also found that the worker had bilateral leg symptoms, involving peripheral nerve or nerve root impairment, for which he was entitled to a NEL rating.
Regarding the pre-existing condition, Tribunal decisions have found that asymptomatic pre-existing conditions may not be taken into consideration when rating for a NEL award. However, in this case, the worker had a symptomatic pre-existing condition.
Board Operational Policy Manual, Document No. 18-05-03, on determining the degree of permanent impairment, has provisions for factoring out a pre-existing condition that is contributing to the degree of impairment to the same area of the body as the compensable impairment. According to the policy, the primary method for making the determination is by a rating for the pre-existing condition in accordance with the AMA Guides.
Table 53 describes rateable impairments due to specific disorders of the spine. The worker's pre-existing symptomatic degenerative disc disease fell within that description. Category A in the AMA Guides for unoperated disorder with no symptoms, which has a zero rating, did not apply. The worker met some of the criteria for Category B or Category C, but there was no evidence of rigidity. Thus, the evidence was insufficient to satisfy the requirements of Category B or Category C.
The definition of impairment in the WSIA refers to a physical or functional abnormality or loss which results from an injury. The legislative intent of the definition is to identify impairments that are compensable under the insurance scheme, as opposed to those that are not. The wording "which results from an injury" is intended to apply only to compensable impairments. The ordinary use of the word "impairment" would include both compensable and non-compensable impairments. The WSIA uses the word "impairment" to signify a compensable impairment.
The reference to "impairment" in Document No. 18-05-03 is a reference to the term as used in the AMA Guides. The term "impairment" as used in the AMA Guides should be applied for purposes integral to the use of the Guides. Any determination of impairment for the purposes of the AMA Guides would then be translated into compensable or non-compensable results, as determined by the definition of impairment in the WSIA.
The Board issued a memo clarifying adjudication under its policies for pre-existing conditions. When considering measurable pre-existing conditions, it provides that listed conditions should be rated according to the AMA Guides. The Vice-Chair already found that the worker did not satisfy all the criteria of any of the categories in Table 53 of the AMA Guides. Therefore, the worker's pre-existing impairment did not qualify as a listed condition. Rather, it should be considered as a condition not specifically listed. According to the clarification memo, such conditions are adjudicated under the most analogous section of the AMA Guides.
The Vice-Chair found that Table 53 is the most analogous section. When considered by analogy, broader consideration of the various criteria can be used. Thus, if a worker does not meet all the criteria for Category B, the rating would be lower than the rating for Category B. However, the Vice-Chair stated that the analogous unlisted condition must still meet the definition of "impairment" under the AMA Guides, which mean that it must be assessed against the presence of any functional criteria specified in the rating for the analogous body part. All categories rated above zero include a criterion for rigidity. Since there was a lack of evidence of rigidity, the worker would not have received a rating under the AMA Guides for his pre-existing condition. Accordingly, the worker's NEL award should not be reduced due to the pre-existing condition.
The appeal was allowed in part.