- Permanent impairment {NEL} (redetermination) (significant deterioration)
The issue under appeal was entitlement for a redetermination of the NEL award for psychotraumatic disability.
The Vice-Chair allowed the appeal.Policy 18-05-09, "NEL Redeterminations," requires that "the work-related condition has deteriorated significantly and permanently since the last NEL determination..." The date of the significant deterioration, as reflected by a PWD of September 6, 2016, technically preceded the date of the last NEL determination (December 1, 2017). However, the Vice-Chair found it permissible where there has been retroactive adjudication to grant a NEL redetermination with a PWD of September 6, 2016.A NEL award is paid retroactively to the date of MMR (or PWD) and must reflect, as closely as possible, the worker's condition at that time. Accordingly, the date of the NEL determination decision does not necessarily reflect the date of MMR. Given that the WSIAT primarily performs retroactive adjudication, there can be a significant amount of time between the MMR date and the NEL determination decision, which could also depend on when initial entitlement for the condition was granted and when the NEL determination was ultimately performed.The Vice-Chair stated it would be unfair to interpret Policy 18-05-09 in a manner that precludes a NEL redetermination where the date of the significant deterioration (i.e., PWD) precedes the date of the last NEL determination. This would not account for the 12 year period between the MMR date and NEL determination in this case, being primarily the result of retroactive adjudication, during which time it is plausible that a significant deterioration may occur. The Vice-Chair stated that a more reasonable way to interpret Policy 18-05-09, particularly when faced with a situation involving retroactive adjudication for long periods, is that, when the policy says "since the last NEL determination," this may be interpreted to mean the date of MMR, and not necessarily the date of the NEL determination itself which can be many years after the worker's condition achieved MMR.Given the unique circumstances of this case, and a reading of the policy together with the legislation (which is not as specific as the wording in Policy 18-05-09), the Vice-Chair noted it would be permissible to find a PWD that precedes the date of the last NEL determination. Accordingly, the Vice-Chair found that the worker was entitled to a NEL redetermination of her psychotraumatic disability with a PWD of September 6, 2016.