- Permanent impairment {NEL} (degree of impairment) (low back)
- Permanent impairment {NEL} (rating schedule) (AMA Guides)
- Procedure (Charter of Rights issue)
The worker appealed the ARO's finding that the 27% Non-Economic Loss (NEL) rating for his low back was correct. The worker's representative provided a Notice of Constitutional Question to the Attorney General of Ontario and the Attorney General of Canada. The Attorneys General indicated that they were not participating at this first stage of the appeal addressing the substantive issue on appeal. This interim decision represented the first stage in this appeal, in which the Panel determined the substance of the appeal according to the applicable law and Board policy without considering the constitutionality of those laws and policies. The issue to be determined at this initial stage of the appeal was whether the worker's low back permanent impairment was correctly rated as a 27% impairment of the whole person.
The appeal was denied. The Panel observed that as part of their submissions on the Charter arguments, the worker's representative submitted, in part, that the Board had discretion to use a more updated version of the AMA Guides when rating impairments. The Panel disagreed. It noted that section 18 of O. Reg. 175/98 is unambiguous: it prescribes the use of the revised 3rd edition of the AMA Guides, as it read on January 14, 1991, as the rating schedule for permanent impairment ratings done pursuant to WSIA subsection 47(2). It was noted that the Board, and this Tribunal, are creatures of statute, and neither have any discretion to apply a different rating schedule other than the prescribed schedule, including the prescribed version of that rating schedule.Further, under the AMA Guides, low back impairment ratings are determined pursuant to Chapter 3, "The Extremities, Spine and Pelvis." An impairment can only be rated as set out in the AMA Guides. They are "the statutorily prescribed method for determining a worker's permanent impairment under the Act" (see Decision No. 269/93). For low back impairments, there is no parameter for rating pain or functional limitations beyond those in the three more specific rating parameters set out. For this stage of the appeal, the worker's representative did not provide arguments pertaining to the details of the rating itself. In relation to the worker's low back impairment, the Panel found that there was no persuasive basis to assess any amount for neurological deficit under the applicable AMA Guides. The Panel concluded that the worker's low back impairment was correctly rated at 27% under the prescribed AMA Guides, 3rd edition (revised).