Highlights of Noteworthy Decisions

Decision 641 21
R. Hoare - G. Burkett - M. Ferrari
  • Board Directives and Guidelines (NEL) (preexisting condition)
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker, a bus driver, strained her low back in May 2008. In an October 30, 2014 reconsideration decision, the NEL Clinical Specialist increased the worker's 30% NEL award for psychotraumatic disability to 40%, but reduced the award by 25% due to a pre-existing condition. The Appeals Resolution Officer confirmed the 25% reduction but referred the 40% quantum back to the operating area for further review. As a result of the ARO's direction, the NEL Clinical Specialist reviewed and confirmed the 40% quantum in a February 2015 decision. The worker appealed the 25% reduction for a pre-existing condition.

The appeal was allowed.
A question arose as to the applicable policy. OPM Document No. 18-05-03, Determining the Degree of Permanent Impairment, applied to decisions on NEL quantum made on or after November 1, 2014, while OPM Document No. 18-05-05, Effect of Pre-existing Impairment, applied to decisions made before November 1, 2014.
The Panel determined that the applicable policy was 18-05-05, which was the policy applied by the NEL Clinical Specialist in her October 2014 evaluation. The subsequent review in February 2015 did not change the substance of the October 30, 2014 NEL decision.
The policy provides for a reduction of the quantum of the NEL award where the worker has a pre-existing impairment. Tribunal jurisprudence has held that a pre-existing impairment is one that required treatment and disrupted employment. A pre-existing condition alone, being an underlying or asymptomatic condition made manifest, is insufficient to permit a reduction of the NEL benefit
The worker did not have a pre-existing psychological impairment within the meaning of the policy. Although there was evidence that the worker had psychological issues prior to the accident, there was no evidence that the worker was ever referred for treatment or that she missed time from work due to a psychological cause or illness.