Highlights of Noteworthy Decisions

Decision 3182 16
R. McCutcheon
  • Board Directives and Guidelines (apportionment)
  • Retroactivity (policy change)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker suffered a shoulder injury in 2010. The Board granted the worker a 21% NEL award but reduced the award by 9% due to a measurable pre-existing condition. The worker appealed.

The Board provided Operational Policy Manual, Documents No. 15-02-03, on pre-existing conditions, and 15-02-04, on aggravation basis. Both those policies were published on November 3, 2014, and stated that they applied to all decisions made on or after November 1, 2014. The Vice-Chair found that these policies were not applicable to this appeal. The Vice-Chair agreed with Decision No. 560/03 that the relevant decision for determining the applicability of Board policy is the initial operating level decision which, in this case, was dated in September 2012, two years before the new policies were published.
The Vice-Chair applied the policies that were applicable, specifically Document No. 11-01-15, on aggravation basis (dated July 2008), and two policies with which it is to be read in conjunction, Document No. 18-05-05, on effect of a pre-existing impairment, and Document No. 14-05-03, on Second Injury and Enhancement Fund, both dated in October 2004. Generally, Tribunal decisions have interpreted these policies to mean that a permanent impairment rating may be reduced if the work injury occurs in the presence of a pre-accident disability, but if the pre-accident factor was a pre-existing condition (asymptomatic prior to the accident) a reduction is not in order.
In this case, the worker did not have a significant pre-existing condition that warranted reduction of his NEL award. The worker had a shoulder injury in September 2007. It was a specific injury for which he required treatment until November 2007, but he did not require any further shoulder treatment until the 2010 accident. Further, he was able to perform heavy work until the workplace accident. Document No. 11-01-15 states that decision-makers would use a time frame of one to two years as a guide to consideration of whether a condition is a pre-accident impairment that has caused a disruption in employment.
If the worker did have a non-measurable pre-existing condition, it was minor, given that it was asymptomatic for close to three years prior to the accident. According to the applicable policies, there is no reduction for a minor pre-existing condition. Also, there was no measurable pre-existing impairment within Board policy as there was no pre-existing condition that was capable of being rated pursuant to the AMA Guides.
The worker was entitled to the 21% NEL award without reduction. The appeal was allowed.