Highlights of Noteworthy Decisions

Decision 1591 21
M. Keil
  • Permanent impairment {NEL} (physical or functional abnormality or loss)
  • Pleural plaque

The Board granted the worker entitlement for pleural plaques resulting from workplace exposure to asbestos. The worker appealed a decision of the Appeals Resolution Officer denying entitlement to a NEL award for permanent impairment.

The appeal was allowed.
Entitlement to permanent impairment awards for pleural plaques has been discussed in a number of Tribunal decisions and two lines of thought have emerged. The first line of thought concludes that once a determination has been made that there is a physical and permanent abnormality, a NEL award is in order. The second approach, however, is to grant a NEL award only when the physical abnormality causes a rateable breathing impairment. This second approach considers the effect of section 47(13) of the Act, which provides that a worker will be deemed not to have a permanent impairment where the degree of impairment is zero.
The second line of cases applying a two-part test was legally persuasive and in accordance with the AMA Guides. Section 47(13) was clear and unambiguous that there will be no deemed impairment where there is a zero rating.
In this case, the evidence indicated that the pleural plaques had made a significant contribution to the worker's breathing impairment. He had entitlement for a permanent impairment.