Highlights of Noteworthy Decisions

Decision 2356 13
28/01/2014
S. Ryan
  • Intervening causes
  • Permanent impairment {NEL} (degree of impairment) (chronic pain)
  • Apportionment (non-economic loss) (co-existing conditions)
  • Loss of earnings {LOE} (employability)

The worker suffered a shoulder injury in 2003. The Board granted a 15% NEL award for chronic pain disability in 2005 with an increase to 25% in 2010. The worker appealed a decision of the Appeals Resolution Officer denying an increase NEL award and denying full LOE benefits as of June 2008.

Where there are work-related and non-work-related cause, Tribunal case law has interpreted the requirement that permanent impairment result from the injury to permit apportionment in certain circumstances. For cases in which chronic pain disability has resulted from a compensable injury and non-compensable factors, apportionment is appropriate.
The worker suffered a compensable shoulder injury. The Board did not grant entitlement for a discrete neck injury but the Vice-Chair was satisfied that the neck was involved in the accident and the worker's neck pain contributed to the subsequent development of his chronic pain disability. Accordingly, it is not appropriate to reduce the quantum of the worker's NEL award by an amount somehow attributable to chronic pain.
The worker developed non-compensable low back problems after the accident. The Vice-Chair found that the non-compensable low back impairment did reduce the significance of the contribution of the original injury to the subsequent development of chronic pain disability. The Vice-Chair concluded that it is appropriate to apportion the NEL award by deducting contribution of the non-compensable back pain from the overall chronic pain.
The non-compensable back impairment did not break the chain of causation between the compensable accident and the development of chronic pain. The worker suffered the shoulder injury in March 2003. He was diagnosed with chronic pain late in 2003, before the emergence of the back pain in late 2004. Therefore, the Vice-Chair found that the chronic pain was caused by the compensable accident. The back pain, while not an intervening event breaking the chain of causation, nevertheless, as of later 2004, constituted a non-compensable co-existing condition.
The pain attributable to the non-compensable low back impairment was distinguishable from the pain attributable to the initial injury, in that its manifestation involved the lower extremity whereas the original accident involved the upper extremity. Although the chronic pain developed before the emergence of the back pain, the non-compensable back pain was significant by the time of the first NEL assessment in 2005. It would not be appropriate to compensate the worker for the pain arising from the non-compensable back impairment in a NEL award for chronic pain.
The Vice-Chair found that the compensable and non-compensable impairments contributed equally to the overall chronic pain disability. Accordingly, the worker's NEL award for chronic pain disability should be reduced by 50%.
On the evidence, the Vice-Chair found that the chronic pain disability should be rated at 30% in 2005 and 50% in 2010. Reducing those amounts by 50%, the Vice-Chair concluded that the worker was entitled to a 15% NEL award in 2005 and a 25% NEL award in 2010. Thus, the Vice-Chair confirmed the NEL quantum as granted by the Board.
On the evidence, the worker was unemployable and entitled to full LOE benefits as of June 2008.
The appeal was allowed in part.