Highlights of Noteworthy Decisions

Decision 1400 22
K. Iima
  • Continuing entitlement
  • Non-economic loss {NEL}
  • Permanent impairment {NEL}
  • Pleural plaque

The worker appealed a denial of entitlement to a NEL assessment for pleural plaques.

The worker's appeal was denied.
The Vice-Chair accepted that the pleural plaques constituted a physical abnormality or change to the lungs that were expected to remain over time. As an ongoing physical abnormality, the worker's pleural plaques met the definition of a permanent impairment under the WSIA, as the definition of an impairment includes a physical or functional abnormality or loss which results from an injury. Recent Tribunal decisions have addressed circumstances where a worker might be entitled to a NEL assessment based on a physical abnormality, but the degree of the impairment results in a zero rating when rated using the prescribed rating schedule (the AMA Guides), particularly if there is minimal or no respiratory impairment caused by the pleural plaques.
It was noted that the AMA Guides do not provide a rating for respiratory impairment simply because pleural plaques are present. In Decision No. 1806/16, the Vice-Chair agreed with the analysis of Decision No. 2129/14 and determined there was no functional impairment associated with pleural plaques, and that a corresponding zero rating under the AMA Guides would lead to the deeming of no permanent impairment under section 47(13). In the present appeal, the Vice-Chair similarly concluded that there was no persuasive evidence that the worker had a functional impairment attributable to the work-related pleural plaques, and as such, did not have a rateable permanent impairment.