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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1273 13
8/15/2013
R. McCutcheon

  • Permanent impairment {NEL} (degree of impairment) (chronic pain)

The worker suffered a compensable injury in 1995. The Board granted the worker a 30% NEL award for chronic pain disability. In Decision No. 1056/10, the Tribunal found that the worker was entitled to redetermination of the NEL award due to significant deterioration. The Board then increased the NEL award to 35%. On appeal, the Appeals Resolution Officer increased the NEL award to 45%. The worker appealed to the Tribunal, submitting that she was entitled to a 60% NEL award.
The Vice-Chair considered and applied Decision No. 815/10, a similar case in which a worker sought an increase in a NEL award for chronic pain from 45% to 60%. Many of the observations in Decision No. 815/10 were applicable to the circumstances of this appeal, for example, the ratings contemplate a wide range of psychiatric diagnoses, including psychotic depression and schizophrenia, which may fall in the higher ranges of impairment but that a diagnosis of severe depression does not necessarily equate to a rating in Class 4 (marked impairment, 50%-90%) of the Board's rating schedule. The Vice-Chair also agreed with Decision No. 815/10 that Class 4 implies that a patient requires constant supervision or even institutionalization.
In this case, the worker lived at home and she was able to drive. There has been no suggestion that she requires supervision in the sense contemplated by the description of a marked impairment. There was also no evidence of volatile outbursts of temper, which is also a characteristic of Class 4.
The AMA Guides has a chapter of mental and behavioural disorders. The Guides note that diagnosis alone is of little relevance to the objective assessment of psychiatric impairment. However, the Guides provide few details about the specific characteristics that would describe a person in each of its categories. The only example in the Guides for a person in Class 4 was of a person who was more disabled than the worker in this case.
A rating of 45% within Class 3 (moderate impairment, 20%-45%) reflects a significant impairment. The worker did not exhibit many of the features of the higher end of Class 3. The Vice-Chair concluded that the worker was fairly, or even generously, compensated by the 45% award.
The appeal was dismissed.