Highlights of Noteworthy Decisions

Decision 124 22 R2
A. Somerville
  • Non-economic loss {NEL} (calculation)
  • Permanent impairment {NEL} (degree of impairment) (shoulder)
  • Permanent impairment {NEL} (redetermination) (significant deterioration) (worsening date)
  • Referral to Board (NEL assessment)

Decision No. 124/22R determined that the threshold test for a reconsideration request had been met and there would be a new hearing on the merits. Accordingly, the issues under appeal were: a) whether there was a significant deterioration entitling the worker to a redetermination of her NEL award; and, b) whether there was entitlement to a discretionary award as described on page 52 of the AMA Guides.

The appeal was allowed.
The evidence established, on the balance of probabilities, that there was a deterioration in the worker's range of motion measurements in 2020, resulting in an increase of her NEL rating calculation from 7% in 2011 to 8%, as of the permanent worsening date in 2019. There was also a significant deterioration in the worker's compensable condition, which entitled the worker to a discretionary award under "Other Musculoskeletal System Defects" on page 52 of the Guides, effective September 12, 2019, the permanent worsening date determined by the Board. Tribunal case law has held that this section of the Guides should be used sparingly. The presence of full or partial rotator cuff tears, or tears which are not reparable with surgery, does not necessarily result in a discretionary award (see Decision No. 1113/20).
In the present case, however, the medical evidence indicated that there were severe symptoms in the worker's right shoulder that were not fully recognized in the range of motion measurements. A severe and irreparable rotator cuff tear is an example of a condition for which the discretionary award might be awarded. The Vice-Chair determined this was an unusual case where the measured anatomical impairment did not appropriately rate the severity of the patient's condition, and the worker was entitled to a discretionary award. With both deteriorations considered together, it was found that the worker had experienced a significant deterioration in her compensable right shoulder impairment, so as to entitle her to a redetermination of her NEL award. The Board was directed to determine the quantum of the discretionary award to which the worker is entitled.