Highlights of Noteworthy Decisions

Decision 1052 22 I
G. Dee (FT)
  • Adjournment (Board policy)
  • Board policies (referral for review)
  • Non-economic loss {NEL} (calculation)
  • Permanent impairment {NEL} (degree of impairment) (ankle)
  • Permanent impairment {NEL} (degree of impairment) (knee)
  • Permanent impairment {NEL} (degree of impairment) (headaches)

This was an appeal by the worker and a cross-appeal by the employer regarding the amount of the worker's Non-Economic Loss (NEL) award for an accident that occurred on March 24, 2010.

The appeal was allowed in part.
The following issues were decided: a) the worker's range of motion rating for his left knee extension was increased to 3%; b) he was entitled to a lower body rating of 25% for damage to his ankle and 20% for his left knee; c) the rating for the disfigurement and deformity of the surface of the left leg was increased from 5% to 10% of the whole body; d) and, the rating for headaches was increased to 20% of the whole body. The worker was not entitled to NEL ratings for the surgical hardware near his left ankle and left knee, or the arthritis in his left ankle.
Further, it was found that OPM Document No. 18-05-03 does not comply with the Act because it describes the circumstances under which a referral for a medical assessment will take place for NEL determination purposes, but the manner in which the assessment is to be conducted does not provide for, or even allow for, compliance with the legislated requirements that: a) the assessment be conducted by a physician on a roster maintained by the Board to conduct such assessments; b) the worker has the right to select a physician from the roster to conduct the assessment; and, c) the physician will examine the worker and shall consider any reports by the worker's treating health professional. In summary, this policy denies workers of their legislated participatory right to select an NEL medical assessor under section 47 of the WSIA,. It restricts the legislated right of employers to receive a copy of such assessment reports by requiring them to request a copy of the report, and authorizes the release of assessment reports in a manner that is not authorized under either section 47 or 58 of the WSIA.
A referral was made to the WSIB, in accordance with the provisions of subsection 126(4) of the Act, and no decision was made with respect to any matters potentially affected by the provisions of the policy document that were referred for the Board's review. A final decision will be issued following receipt of the Board's direction in response to the referral under subsection 126(4) of the WSIA.