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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 897 17
5/3/2018
C. Roberts - J. Blogg - J. Crocker

  • Board Directives and Guidelines (apportionment)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker suffered a low back injury in March 2014, for which the Board granted the worker a 20% NEL award but reduced the award by 8% to 12% due to a pre-existing condition. The worker appealed the reduction of the NEL award.
The accident date was in March 2014. The initial NEL decision by the Board operating level was in November 2015. Tribunal decisions have found that the applicable Board policy is the policy at the time of the initial Board operating level decision. Thus, the applicable policies are Board Operational Policy Manual, Document No. 15-02-03, on pre-existing conditions, and Document No. 18-05-03, on determining the degree of permanent impairment, both of which were published on November 3, 2014, and are applicable to all decisions made after November 1, 2014.
According to Document No. 18-05-03, the Board factors out pre-existing conditions affecting the same area of the body. According to Document No. 15-02-03, the existence of a pre-existing condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the compensable accident or it may become evident afterwards. Pre-existing conditions include underlying or asymptomatic conditions which only became manifest post-accident. On December 15, 2017, the Board issued a policy clarification memo, on pre-existing conditions and permanent impairment, stating that it would no longer reduce benefits for people with asymptomatic pre-existing conditions if the condition is non-measurable. The Board also advised that it would reconsider about 4,000 decisions made between January 2012 and October 2017, where there was a reduction because of an asymptomatic pre-existing condition.
The Panel applied the approach set out in the clarification memo in is application of Document No. 18-05-03 to the facts of this case.
On the evidence, the Panel found that the worker had a pre-existing condition affecting his lumbar spine, as he had a diagnosed prior condition that required medical treatment and caused pain. The pre-existing condition affected the same area of the body as the work-related impairment. The pre-existing condition had an impairment rating of 8% under the AMA Guides, Table 53, for impairments due to specific disorders of the spine.
The Panel concluded that the worker's 20% award was appropriately reduced by 8% to 12%. The appeal was dismissed.