- Hernia (inguinal)
- Non-economic loss {NEL} (calculation)
- Loss of earnings {LOE} (level of benefits) (hours of work)
- Permanent impairment {NEL} (degree of impairment) (hernia)
The worker was diagnosed with a right inguinal hernia. He was unable to undergo surgical repair of the hernia as he was a high-risk surgical candidate due to his pre-existing medical conditions. As such, the Board recognized that the worker had a permanent impairment (PI) due to an unrepaired inguinal hernia, and referred him for a non-economic loss (NEL) assessment. A NEL Clinical Specialist later determined that the worker had a Class 2 hernia, and was therefore entitled to a 10% whole person NEL award.
The employer appealed the following issues: a) entitlement to LOE benefits from November 16, 2017 to January 5, 2018; b) ongoing entitlement for a right inguinal hernia beyond May 8, 2018; c) recognition of a PI and entitlement to a NEL award for a right inguinal hernia; and, d) quantum of the worker's NEL award for a right inguinal hernia. The employer's appeal was denied. The Panel found that the worker was reasonable in following his physician's advice to reduce his work to four hours per day. The worker's part-time hours, from November 16, 2017 to January 5, 2018, were a reasonable and necessary part of his treatment and recovery from his compensable injury. The worker was entitled to partial LOE benefits on that basis. The Panel was satisfied that the worker was precluded from receiving surgery for his work-related hernia due to his pre-existing medical conditions. The worker reached MMR on May 8, 2018, with a PI, as he was unable to undergo further treatment for his work-related condition. The Panel noted, with respect to OPM Document No. 15-04-08, that the reducibility of a worker's hernia is considered only in the specific context of entitlement to benefits for emergency surgery. It is not a factor in the consideration of general entitlement for a hernia. This interpretation is consistent with Tribunal jurisprudence, which has generally allowed entitlement for necessary surgeries in cases where the worker's hernia does not meet the criteria for emergency surgery (see Decision No. 1203/96). In addition, Decision No. 1447/06 found that the thin skull principle applied, and the worker was entitled to ongoing benefits, in a situation where the worker was unable to access surgical treatment for a hernia due to an unrelated medical condition. Lastly, the employer's representative argued that the worker's NEL award should be reduced to reflect a major pre-existing condition, i.e., the worker's recurrent hernia. The worker had no pain or discomfort prior to October 2017, and was able to perform his regular duties and activities of daily living. The Panel was satisfied that the worker's pre-existing condition would have been rated as a Class 1 impairment, or at 0%, according to the prescribed rating schedule, resulting in no net reduction of the worker's NEL award. Accordingly, the worker was entitled to a whole person NEL award of 10%.