Highlights of Noteworthy Decisions

Decision 2799 16
M. Crystal
  • Aggravation (preexisting condition)
  • Disc, degeneration
  • Downside risk
  • Pensions (reassessment)

The worker suffered a neck and shoulder injury in 1983 and a low back injury in 1985. In Decision No. 80/03, the Tribunal found that the worker was entitled to a pension assessment for permanent disability. The Board then granted a 35% pension for neck and shoulder disability and a 15% pension for low back disability.

The worker now appealed a decision of the Appeals Resolution Officer denying a pension reassessment and denying entitlement for chronic pain disability.
The Vice-Chair noted the downside risk relating to chronic pain disability, in that the worker had significant pension awards for organic disability and a pension for chronic pain disability could be lower that the organic ratings. In the circumstances, the worker withdrew the appeal regarding chronic pain disability.
Evidence did not indicate a worsening of the shoulder and neck condition. The worker was not entitled to a reassessment of the pension for neck and shoulder disability.
Decision No. 80/03 found that the worker was entitled to an assessment of the permanent disability he suffered as a result of permanent aggravation of an asymptomatic pre-existing low back condition. It follows that entitlement for the low back was initially awarded on the basis that the worker had a degenerative condition in his low back, which was not symptomatic prior to the accident, and the accident caused the degenerative condition to become symptomatic. The Vice-Chair found that, in a case such as this, where entitlement has been awarded on the basis that a traumatic accident caused the pre-existing condition to become symptomatic, and where the degenerative condition progresses, the worsening of the condition due to the progression is also compensable.
Given that the degenerative condition, which was a factor in the original compensable condition, has worsened, the compensable condition must also be seen to have worsened. The worker was entitled to reassessment of the pension for low back disability.
The appeal was allowed in part.