- Non-economic loss {NEL} (calculation)
- Permanent impairment {NEL} (degree of impairment) (knee)
- Permanent impairment {NEL} (rating schedule) (AMA Guides) (combined values)
- Permanent impairment {NEL} (degree of impairment) (osteoarthritis) (knee)
The issue under appeal was the quantum of the worker's Non-Economic Loss (NEL) award for the right knee. The worker had a NEL award of 6%.
The appeal was allowed, in part. The worker was entitled to an 11% NEL award for the right knee.The ARO stated that a rating for arthritis under Table 40 had been correctly omitted in the March 8, 2022 NEL determination, as a rating for knee arthritis could not be combined with a rating for abnormal motion. The Vice-Chair found this to be incorrect. Table 40 of the AMA Guides does not preclude a rating for both arthritis and abnormal or loss of motion (under Table 39), provided that the worker has another knee condition that requires a rating under Table 39. Specifically, Table 40 provides a list of 10 disorders of the knee. In seven of these disorders, Table 40 states that the impairment rating is to be combined with another impairment rating under Table 39, to account for the loss of motion caused by the disorder. In the Vice-Chair's view, this indicates that a complete impairment rating for one of these seven disorders is the combined value from Tables 39 and 40. A torn meniscus, including a meniscectomy, is one of these seven disorders.On the other hand, Table 40 omits the phrase "combined with impairment for loss of motion" from the rating for arthritis. The Vice-Chair found that this omission indicates that a rating under Table 40 reflects the worker's total impairment from arthritis, and that the rating is complete without an additional rating from another table. In this instance, the Vice-Chair found that the worker had two compensable disorders of the right knee that are rated under Table 40: a torn meniscus and post-traumatic arthritis. The worker's arthritis is a separate condition from her torn meniscus, and should be rated separately. The correct procedure would be to determine the worker's impairment value for the torn meniscus (combining ratings from Tables 39 and 40), and to combine this value with the worker's impairment rating for arthritis (rated under Table 40 only). To do otherwise would be to deny the worker compensation for a condition for which she had entitlement.The initial October 7, 2019 NEL determination followed the above procedure. The Vice-Chair found, therefore, that the October 7, 2019 NEL determination was correct, with exception of the reduction applied for a pre-existing condition. The worker was entitled to the full value of the October 7, 2019 NEL determination, which was an 11% whole person impairment.