- Permanent impairment {NEL} (degree of impairment) (knee)
- Loss of earnings {LOE} (disabled by non-compensable condition)
The issues under appeal were as follows: a) entitlement to Loss of Earnings (LOE) benefits from September 12, 2017 to June 27, 2018; b) entitlement to LOE benefits from February 19, 2019; and, c) quantum of the Non-Economic Loss (NEL) award for the right knee.
The Vice-Chair allowed the appeal, in part.The Vice-Chair found that the modified duties offered by the accident employer were available and physically suitable for the worker's work-related condition, and that the worker would have been able to perform them but for his non-work-related low back condition. The worker did not have entitlement to LOE benefits after September 21, 2017 or after February 19, 2019.The worker's low back pain was a non-work-related condition that developed after the workplace accident. As such, the worker's low back condition was considered to be a post-accident change under OPM Document No. 15-06-08. Previous Tribunal decisions have generally applied OPM Document No. 15-06-08 within the context of subsection 43(1) of the WSIA, which provides that a worker is entitled to benefits where there is a loss of earnings as a result of a work-related injury. Thus, when there is a non-work-related contributor to a worker's impairment, the worker is entitled to LOE benefits in proportion to the degree to which his or her loss of earnings is attributable to the work injury (see Decision No. 1827/21). WSIB policy states that a worker who has both work-related and non-work-related impairments is entitled to full LOE benefits until a clinical determination regarding the work-related level of impairment is made. However, the WSIB does not elaborate on the meaning of "clinical determination." The Vice-Chair did not agree that "clinical determination" means a NEL determination. Rather, she interpreted "clinical determination" to mean a determination by one of the worker's treating medical practitioners regarding the impairment caused by the worker's work-related injury.Dr. King stated in his Form 8, dated September 21, 2017, that the worker was unable to return to work as "ongoing pain [in the] right knee precludes standing duties and [the worker is] unable to sit secondary to low back pain." This opinion provided sufficient evidence of the level of the worker's work-related impairment, relative to his non-work-related impairment. The Vice-Chair was satisfied that this Form 8 was a "clinical determination" of the worker's work-related impairment, within the context of OPM Document No. 15-06-08, in that it was a determination made by the worker's treating medical professional after a physical examination of the worker. The Vice-Chair found that the quantum of the worker's NEL award for the right knee was correctly assessed as a 6% whole person impairment. As the worker's June 27, 2018 surgical procedure included a partial meniscectomy rather than a full one, it would not have been reasonable to rate the worker's procedure at the top of the range (i.e., 10%) provided by the AMA Guides.