Highlights of Noteworthy Decisions

Decision 1156 15
M. Crystal
  • Permanent impairment {NEL} (degree of impairment) (asbestosis)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides)

The Board granted the worker entitlement for asbestosis. In Decision No. 1692/06, the Tribunal found that the worker was not entitled to a NEL award for permanent impairment. Subsequently, the worker's condition deteriorated, and the Board granted the worker a 10% NEL award. The worker now appealed a decision of the Appeals Resolution Officer confirming the 10% NEL award.

The 10% NEL award was the lowest value in the AMA Guides for Class 2 mild impairment.
The AMA Guides list four criteria for determining the appropriate class of impairment. The four criteria are: FVC; FEV1; FEV1/FVC; Dco. The criteria are separated by the word "or." Thus, in order to qualify within a class, it is not necessary to meet all four criteria; rather a worker will qualify within a class if the worker meets PFT values that fall within the range of any one of the criteria.
In this case, the worker did not meet the minimum of the first three of the four criteria. The Board found he had Dco of 70%, which was within the range for Class 2 of 60% to 79% of predicted. However, the Vice-Chair found that the correct value for the worker's Dco, based on his PFTs, was actually 59%.
Class 3 for moderate impairment has a range of 30% to 45%. The worker did not meet the first three criteria in Class 2 and would not have met them in Class 3. The fourth criterion, Dco, in Class 3 has a range of 41% to 59% of predicted. Only one of the four criteria needs to be met in order to qualify in the class. Thus, the worker met the fourth criterion in Class 3, and was entitled to a rating in Class 3.
The Vice-Chair concluded that the worker was entitled to a 30% NEL award at the low end of Class 3. The appeal was allowed.