- Continuing entitlement
- Dyspnea
- Permanent impairment {NEL} (consequences of injury)
- Fracture (nose)
The issues under appeal were recognition of a permanent impairment for the nose, and entitlement to a NEL award for the nose. The worker submitted that he had difficulty with his sense of smell, and with his ability to take full breaths, due to structural changes to his nose caused by the work-related accident.
First, with respect to the worker's ability to smell, the Vice-Chair referred to section 9.3c of the AMA Guides, "Olfaction and taste," which states that a value of 3% should be applied in cases where a worker has completely lost his or her sense of smell and taste. However, the AMA Guides also indicate that "detection by the patient of any odor or taste, even though he or she cannot name it, precludes a finding of permanent impairment." The Vice-Chair interpreted this to mean that a rating for the loss of taste and smell must either be 0% (no impairment), or 3% (a complete loss).Furthermore, given that the worker had testified that he was able to intermittently detect odors, and that he was able to taste, the Vice-Chair found that the worker was able to detect some odors and tastes. As such, he did not meet the criteria set out in section 9.3c of the AMA Guides for a finding of permanent impairment related to olfaction and taste. He was therefore not entitled to a NEL award for the loss of the sense of smell.The Vice-Chair then turned to the worker's respiration and breathing difficulties, which the worker attributed to the physical injuries he suffered during the work-related accident on April 30, 2013. The Vice-Chair accepted that the worker had a deviated septum and a prolapse of the left side wall and alar region, both of which were caused by the work-related accident. The Vice-Chair also accepted the specialists' opinions that these structural anomalies were the cause of the worker's breathing difficulties.In addition, the Vice-Chair noted that the AMA Guides do not provide a rating schedule for internal derangement of the nose. As noted previously, the worker already had a 5% NEL award for external scarring and disfigurement, which was not under appeal. Instead, obstructions are rated according to the degree of breathing difficulties or dyspnea that they cause, as per section 9.1a of the AMA guides on "Respiration."The Vice-Chair then considered the level of dyspnea caused by the defect. The worker testified that he had difficulty breathing through his nose, and as a result, he often breathed through his mouth, particularly when he was physically active outside. He had difficulty drinking from a water bottle because he could not get enough air through his mouth, and would have to pause to breathe. He also stated that he had difficulty playing hockey because he could not breathe properly through his mouth with his mouth guard on, and that sometimes caused him to panic. He also breathed through his mouth when jogging. He took breaks when cutting the grass or shoveling snow, as he felt he could not get the air that he required with his mouth closed. He would also turn side to side while sleeping in order to try to get enough air. The Vice-Chair noted that the extent of the worker's nasal obstruction was unclear from the documentary evidence. However, it was clear from the medical evidence that the worker had a septum deviating to the right, which two surgeons described as "severe." The worker also had a prolapsed nasal valve on the left, causing a physical obstruction on that side. As the worker had testified that he had difficulties breathing without the aid of his mouth, the Vice-Chair found that, functionally, the worker more likely than not had a complete obstruction of the nose.Given the above, the Vice-Chair found that the worker had a permanent impairment of the nose, rateable under Table 5 of the AMA Guides. Furthermore, the Vice-Chair found that the worker met the criteria for a permanent impairment in the low end of Class 2, at 15%. As the worker experienced occasional dyspnea, his impairment exceeded Class 1. However, there was little evidence to support that the worker required external support to breathe. As the AMA Guides rate a permanent tracheostomy in the mid-range of Class 2 at 25%, the Vice-Chair noted that it would not be reasonable to rate the worker's current impairment higher than the low end of Class 2. In the Vice-Chair's view, this rating was consistent with previous Tribunal cases that have considered dyspnea (see Decisions No. 773/10 and 880/17).