Highlights of Noteworthy Decisions

Decision 1228 13
08/08/2013
S. Martel - J. Blogg - J. Crocker
  • Permanent impairment {NEL} (rating schedule) (AMA Guides) (rating not recognizing severity of impairment)

The worker suffered a shoulder injury, for which he was granted a 12% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for psychotraumatic disability and denying an increase in the NEL award for organic impairment.

On the evidence, the worker had entitlement for psychotraumatic disability.
The worker did not dispute the findings in the NEL assessment of his shoulder impairment but submitted that he should be entitled to a discretionary increase in his NEL award, relying on a statement on page 52 of the AMA Guides. However, the Panel noted that the statement provides for a discretionary increase in rare cases where the clinical findings do not correspond with the extent of the musculoskeletal defect. Prior Tribunal decisions have found that this discretion should be exercised with care and where the evidence clearly warrants such a result. In this case, the severity of the clinical findings corresponded to the true extent of the musculoskeletal defect, and the defect was not of a severe nature. The worker was not entitled to a discretionary increase.
The appeal was allowed in part.