Highlights of Noteworthy Decisions

Decision 204 14
S. Netten
  • Board Directives and Guidelines (apportionment)
  • Permanent impairment {NEL} (degree of impairment) (shoulder)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker suffered a right shoulder injury in 2009. The Board rated the shoulder impairment at 36%, which was the equivalent of a whole person rating of 22%. The Board then reduce the 22% rating by one-half due to a severe pre-existing condition, resulting in a NEL award of 11%. The worker appealed.

The Vice-Chair confirmed the shoulder rating of 36%, based on shoulder surgery that was more invasive than acromioplasty. Pursuant to the Board's rating guideline, the worker was assigned a 12% rating for the surgery. This was combined with a 27% rating for abnormal motion, pursuant to the AMA Guides, resulting in the 36% rating.
The 36% shoulder rating was correctly converted to a 22% whole person impairment.
Board Operational Policy Manual, Document No. 18-05-05, on the effect of a pre-existing impairment, provides for apportionment of NEL benefits in certain circumstances. It refers exclusively to pre-existing impairment, except when incorporating, by reference to Document No. 14-05-03, the term pre-existing disability from the SIEF policy. There is no reference to the term pre-existing condition. There is no definition of pre-existing (or pre-accident) impairment in Document No. 18-05-05, but pre-accident impairment is defined in the Board policy on aggravation in Document No. 11-01-05, as a condition which has produced periods of impairment/illness requiring health care and has caused a disruption in employment.
Considering these documents, the Vice-Chair concluded that a pre-existing impairment exists where there have been periods of disability, impairment or illness in the past which have required treatment and disrupted employment. A pre-existing condition alone, being an underlying or asymptomatic condition made manifest, is not sufficient to permit reduction of NEL benefits.
The worker was entitled to the 22% NEL award without reduction. The appeal was allowed.