- Permanent impairment {NEL} (degree of impairment) (head)
- Permanent impairment {NEL} (redetermination) (time restriction)
The worker suffered a head injury in December 2005, for which the Board granted the worker a 10% NEL award. The Board also granted entitlement for psychotraumatic disability, with a 20% NEL rating, resulting in a combined 28% NEL award. In Decision No. 1033/15, the Tribunal increased the NEL rating for psychotraumatic disability from 20% to 45%.
The worker now appealed a decision of the Appeals Resolution Officer denying an increase in the NEL rating for the head injury and denying redetermination of the NEL rating for psychotraumatic disability.Chapter 4 of the AMA Guides deals with the nervous system, with para. 4.1a dealing with the brain. Para. 4.1a describes the structure of rating injuries, which it divides into six categories. Each category sets out a description of the type of symptoms and behaviours covered by the category, together with percentage values. A worker may be rated only under the category in which the worker would have the highest rating, in other words, the categories are not additive.The Board rated the worker under the category for disturbances of complex, integrated cerebral functions, which constitute the well-known organic brain syndrome. The worker submitted that he should receive a higher rating under the category for emotional disturbances.The Vice-Chair noted that the worker received a 45% NEL rating for psychotraumatic disability in Decision No. 1033/15. Most of the symptoms listed under the category for emotional disturbances have been treated and accepted as part of the worker's psychological response to the accident rather than as being caused directly by the organic brain injury. These have been compensated under the Board's rating schedule for psychotraumatic disability. The appropriate category for rating the worker's brain injury was the category for disturbances of complex, integrated cerebral functions.Under the first level of impairment in the category for disturbances of complex, integrated cerebral functions (with a rating range of 5% to 15%), there is ability to carry out most activities of daily living as well as before onset. Under the second category (with a rating range of 20% to 45%), daily activities need some supervision and/or direction. The Vice-Chair concluded that the worker came within the low end of the range for the second category, and assigned a 27% rating for the brain injury.Decision No. 1033/15, released in June 2015, increased the NEL rating for psychotraumatic disability to 45%. The ARO, in a decision released in March 2016, denied redetermination of the NEL rating on the grounds that 12 months had not elapsed since the most recent determination of the degree of impairment, as required by s. 47(10) of the WSIA. However, the Vice-Chair found that the worker's request for redetermination met the requirement of s. 47(10). The original NEL rating for psychotraumatic disability was made in 2011. Decision No. 1033/15 dealt with an appeal of the original rating and granted the increase based on the assessment in 2011. Thus, the request for redetermination was more than 12 months after the assessment on which the rating was based.Evidence did not support significant deterioration since 2011. The worker was not entitled to redetermination of the NEL rating for psychotraumatic disability.The appeal was allowed in part.