Highlights of Noteworthy Decisions

Decision 859 16
A. Baker
  • Hearing (oral)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides)
  • Permanent impairment {NEL} (degree of impairment) (hepatitis)

In Decision No. 859/16, the Tribunal granted the worker entitlement for hepatitis C. The worker now appealed a decision of the Appeals Resolution Officer denying a NEL award for permanent impairment.

In a preliminary matter, the Vice-Chair denied the worker's request for an oral hearing. The Vice-Chair referred to the Tribunal practice direction on written appeals and noted that this case met the criteria for a written appeal. There was a discrete issue where testimony would not significantly add to the information in the case materials.
There was evidence from the worker's doctor of chronic fatigue related to the hepatitis. There was also evidence of total bilirubin that was marginally above the normal range.
The AMA Guides contain a rating schedule for impairment of liver function as a direct sequela of hepatitis C infection. Table 5, for classes of liver and biliary tract impairment provides for a 0% to 10% rating in Class 1 and a 15% to 25% rating in Class 2. Class 1 applies when there is objective evidence of persistent liver disease even though no symptoms of liver disease are present; and nutrition and strength are good; and biomedical studies indicate minimal disturbance in liver function or primary disorders of bilirubin metabolism are present. The AMA Guides list an example of a Class 1 impairment with a 0% rating, as involving a patient where pre-existing disease was documented but recovery was satisfactory with only minimal evidence of residual liver impairment, with the patient requiring no treatment other than abstinence from alcohol.
Class 2 describes a person significantly more impaired than the worker. The Vice-Chair found that the worker's symptoms fit within Class 1. Considering the fatigue and bilirubin findings, the worker was entitled to more than a 0% rating. The Vice-Chair concluded that the worker was entitled to 5% rating.
The appeal was allowed.