- Non-economic loss {NEL}
- Permanent impairment {NEL}
- Palsy (cranial)
The issue to be decided in this appeal was entitlement to a Non-Economic Loss (NEL) assessment for 6th and 3rd cranial nerve (CN) palsy. The worker was in receipt of a 77% NEL award, including for a severe traumatic brain injury.
The appeal was allowed. The Board granted the worker entitlement for 6th and 3rd CN palsy following an assessment at an Ontario Workers' Network (OWN) Neurology Specialty Program in January 2020. The Specialty Program assessors were specifically asked to comment on the worker's CN palsy noting that he had already been granted entitlement for symptoms associated with traumatic brain injury affecting cranial nerves and ocular movement. Their report stated that the 6th cranial nerve is responsible for lateral gaze, and a deficit would result in horizontal diplopia. It is also not uncommon for 6th CN palsies to be clustered with palsies of the 3rd/4th/5th cranial nerves. The worker's particular symptoms associated with the 3rd cranial nerve (worsening diplopia and ptosis) appear to have improved, but still remained present as per the documentation from October 2019. Furthermore, the Panel was particularly persuaded by a neurologist's report, dated October 31, 2022, in which the neurologist advised that the worker's "active and chronic medical diagnoses" included right 6th nerve palsy secondary to trauma and partial 3rd nerve palsy and ptosis secondary to trauma. In summary, the preponderance of medical evidence from specialists supported, on a balance of probabilities, that the worker's compensable 6th and 3rd CN palsy was permanent. Accordingly, he had entitlement to a NEL assessment for these impairments.