Highlights of Noteworthy Decisions

Decision 3088 17
G. Dee
  • Legal precedent (consistency)
  • Permanent impairment {NEL} (degree of impairment) (shoulder)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides)

The worker suffered bilateral shoulder injuries. The worker appealed a decision of the Appeals Resolution Officer denying ongoing entitlement for the left shoulder and denying an increase in the NEL award for the right shoulder.

On the evidence, the worker had ongoing entitlement for the left shoulder.
In rating the right shoulder, the Board used its adjudicative advice document on NEL ratings for acromioplasty. Based on that document, the Board assigned a 10% rating for the acromioplasty of the type the worker had on her right shoulder. That 10% rating was then combined with the rating for range of motion findings, resulting in a 14% NEL award.
The worker submitted that she should be entitled to a 24% rating for the acromioplasty in accordance with the AMA Guides.
There was a period of time in which there was uncertainty within Tribunal decisions. However, the matter now appears to be well settled that the 10% rating in the adjudicative advice document is the more appropriate rating than the rating in the AMA Guides. It is very important that Tribunal decisions reflect consistency of decision-making. Accordingly, the Vice-Chair accepted the use of the adjudicative advice document for rating surgery to the acromioclavicular joint. The worker was not entitled to an increase in the NEL award for her right shoulder impairment.
The appeal was allowed in part.