- Permanent impairment {NEL} (degree of impairment) (ankle)
The issue under appeal was whether the worker's Non-Economic Loss (NEL) award for his left ankle workplace injury was correctly assessed at 2%.
The Vice-Chair allowed the appeal. The worker's actual impairment for inversion was more closely reflected in an impairment rating of 2% and his actual impairment for dorsi-flexion was more closely reflected in an impairment rating of 7%. The worker was entitled to a reassessment of his NEL award based on these findings.In Decision No. 1061/13, the Vice-Chair used an approach which was to select the closest rated measurement that produced a result that was more aligned to the actual impairment (see Decision No. 754/20). The goal is to obtain the most accurate assessment of the worker's impairment within the context of the rated measurements in the AMA Guides. The Vice-Chair found that, in the circumstances of this case, where the range of motion measurement was directly between two rated measurements in Table 38 of the AMA Guides, the approach taken in Decision No. 754/20 permitted the Vice-Chair to select a measurement that produces a result that is more aligned to the worker's actual impairment based on the evidence in the Case Record.For these reasons, the Vice-Chair found that it was more appropriate to round the worker's inversion measurement of 25 degrees down to the higher rated measurement of 20 degrees, which resulted in an impairment of 2%. Similarly, it was more appropriate to round the dorsi-flexion measurement of 5 degrees up to the higher rated measurement of 0 degrees, which resulted in an impairment of 7%.The Vice-Chair then considered whether the worker was entitled to an award for neurological impairment. The Vice-Chair found that the worker had sustained a sensory loss. However, as there was no medical evidence identifying the specific nerve(s) associated with the reduced sensation on the plantar aspect of the worker's left foot, the Vice-Chair was unable to complete the calculation to determine impairment of the lower extremity due to sensory deficit, in accordance with Table 10b of the AMA Guides. The Vice-Chair remitted this rating to the WSIB.The Vice-Chair agreed that the worker's surgery involving an open reduction and internal fixation should be assessed by analogy to an arthroplasty, which per the AMA Guides merits a 25% impairment rating. Several WSIAT decisions have noted that the WSIB has accepted various surgical procedures involving the ankle as being "analogous" to arthroplasty. The purpose of the multiple surgeries was restoring the integrity and function to a severely damaged left ankle. In these circumstances, the surgeries merited a 25% impairment rating.