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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 3061 16
6/13/2017
R. McCutcheon

  • Non-economic loss {NEL} (preexisting condition)
  • Permanent impairment {NEL} (degree of impairment) (chronic pain)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides) (combined values)
  • Health care (independent living) (severely disabled worker)
  • Pensions (conversion to NEL ratings)

The worker suffered a low back injury in 1980, for which the Board granted the worker a 20% pension. He suffered another low back injury in 1985, after which the Board increased the pension to 25%. He suffered back and neck injuries in 1990, for which the Board granted the worker a 35% NEL award for chronic pain disability. The worker wanted benefits under the serious injury program, which was denied by the Board after it determined that the composite NEL rating was only 56%. The worker appealed a decision of the Appeals Resolution Officer denying redetermination of the 35% NEL award for chronic pain disability, denying an increase in the 56% composite rating and denying entitlement to benefits under the serious injury program. On the evidence, the Vice-Chair confirmed the 35% NEL rating for chronic pain disability and found no significant deterioration of the worker's condition that would warrant redetermination of the award. Board policy provides that, if a worker has a pension for permanent disability and suffers a permanent impairment to the same area of the body, the Board rates the total impairment to the area and then subtracts the permanent disability rating from the total area rating. Tribunal decisions have found that chronic pain is assessed by a holistic, whole body approach, so that it would be considered the same area of the body as another injury. The calculation of the composite NEL rating in this case should be as follows: the worker had a 25% pension for the low back, based on the 1980 and 1985 accidents; the NEL award for chronic pain disability from the 1990 accident was rated at 35%; the 25% pension was a pre-existing condition for purposes of the chronic pain NEL award, so that the 25% pension is subtracted from the 35% chronic pain NEL award, resulting in a total addition NEL award of 10%; the 10% NEL award for chronic pain disability is then combined with the NEL equivalents of the pensions for the low back; the 20% pension translated into a 28% NEL award; the 5% pension translated into a 5% NEL award; the 28% NEL rating is combined with the 5% NEL rating, resulting in a combined value of 32%; that 32% rating is then combined with the remaining 10% chronic pain rating, resulting in a combined value of 39%; as a result of Decision No. 2339/09, the pension for the 1985 low back injury was increased by 10% in 2010 to 15%; the NEL equivalent for the 15% pension is a 22% NEL award; as the original 5% pension had an equivalent 5% NEL rating, the 10% increase translates into a 17% NEL rating; the 39% rating is then combined with the 17% rating, for a total composite of 49%. The worker was, therefore, not entitled to an increase in the composite rating. The Board's calculation was likely generous. There were no exceptional circumstances in this case warranting the granting of benefits under the serious injury program. The appeal was dismissed.