Highlights of Noteworthy Decisions

Decision 2532 16
G. Dee (FT) - E. Tracey - D. Besner
  • Permanent impairment {NEL} (degree of impairment) (back)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker suffered a low back injury in November 2009, for which he underwent surgery. He was left with very significant residual symptoms. The Board assigned a 48% NEL rating for the organic back impairment but reduced the rating by one-half due to a major pre-existing condition. The resulting 24% rating was combined with a 25% rating for psychotraumatic disability. The worker appealed a decision of the Appeals Resolution Officer denying an increase in the NEL ratings and denying full LOE benefits.

On the evidence, the worker was entitled to full LOE benefits.
The Panel confirmed the 25% rating for psychotraumatic disability.
The organic NEL rating was composed of a 14% rating under Table 53 of the AMA Guides for operated spinal stenosis and three separate ratings under the provisions for central and spinal nervous system disorders: a 15% rating for station and gait; a 20% rating for urinary bladder function; and a 10% rating for sexual function. Those ratings were combined to achieve the 48% rating, which was then reduced by half to 24%.
The Panel had two issues with the organic NEL determination.
First, there was no rating for abnormal range of motion.
Secondly, the reduction of the NEL award due to the pre-existing impairment should have been more narrowly focused so that it does not reduce the award that the worker received for areas of injury in which there was no prior impairment. The worker's pre-existing back impairment did not include either urinary bladder function or sexual function. The ratings the worker received for those conditions should not have been reduced.
As a result, the worker's NEL award should be determined as follows: the Board should rate the loss of range of motion; that rating for loss of range of motion should be combined with the established ratings of 14% for operated spinal stenosis and 15% for station and gait; that combined result should be reduced by half; the resulting rating should then be combined with the 20% rating for urinary bladder function, the 20% rating for sexual function and the 25% rating for psychotraumatic disability.
The appeal was allowed in part.