March 11, 2015 By: Peggy King
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Until recently, for about the last two years, the Workplace Safety and Insurance Board (WSIB) did not offset a percentage of the Non-economic Loss (NEL) award for a “Pre-Existing Impairment” when it was not objectively measurable.

Over the last couple of years, when the WSIB confirms that a permanent impairment is evident, they have adopted the practice of determining the significance of any radiological findings, that in their opinion were not attributable to the injury, and have offset it from the NEL award, even where there was no medical record of a pre-existing condition responsible for medical treatment, or loss of time from work prior to the date of accident. In addition, loss of earnings benefits (‘LOE’) have been terminated due to the deemed effect of a pre-existing condition.

Prior Board Policy

Board Policy no.: 18-05-05, The Effect of a Pre-existing Impairment, was the applicable policy in effect prior to November 1, 2014. This Policy referred to three different terms, pre-existing (pre-accident) impairment, pre-accident disability, and pre-existing condition. The first was defined in a separate Board Policy No. 11-01-15 on Aggravation Basis Entitlement; and the latter two are defined and contrasted in the Board Policy on the Second Injury and Enhancement Fund (SIEF) (OPM Document No. 14-05-03). The term disability has been superseded by the language of “impairment” in the WSIA, but certain Board Policies continue to refer to disability.

The three definitions are as follows:

A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment.

 A pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment.

A pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident.

The Pre-existing Impairment Policy uses the term “impairment” exclusively, except when incorporating by reference the term pre-accident disability from the SIEF Policy. There is no reference to the term pre-existing condition.

When calculating NEL benefits for workers who had a measurable pre-existing permanent impairment under the prior policy, the WSIB rated the area of the body affected by the new permanent impairment; disregarded any pre-existing permanent impairments affecting other areas of the body; and factored out pre-existing permanent impairments affecting the same area of the body. If the pre-existing impairment was not measurable, the WSIB rated the total area's impairment, and reduced this rating according to the significance of the pre-existing impairment.

The SIEF Policy primarily addressed cost relief for employers due to a pre-existing disability or condition, but also restated the impact on workers’ permanent benefits, including NEL benefits. Under the Policy, when the pre-existing condition was not measurable, but created a pre-accident disability that enhanced a residual work-related disability, the worker's benefit for work-related disability may be reduced according to the percentage of disability produced by the pre-existing condition. If the disability produced was minor, there was no reduction in the worker’s benefit, if it was moderate, there was a 25% reduction, and if it was major, there was a 50% reduction. In discussing the impact on permanent impairment benefits, the SIEF Policy referred to both pre-existing conditions, and pre-accident disabilities, but specifically required a pre-accident disability for a reduction in benefits.

Given the three definitions outlined above, an NEL award might therefore have been reduced pursuant to the old policy where a pre-existing impairment or disability was present, in other words, when there were periods of disability, impairment, or illness, which required treatment and disrupted employment. A pre-existing condition alone, being an underlying, or asymptomatic condition, made manifest, was not sufficient to permit a reduction of NEL benefits.

Updated Board Policy

Effective November 1, 2014, the WSIB has implemented a new Policy 15-02-03, titled Pre-Existing Conditions. This Policy explains that entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. However, once initial entitlement is established, the decision-maker considers the impact, if any, of the pre-existing conditions on the worker’s ongoing impairment.

Although the WISB has established a new Policy, that now defines pre-existing conditions as “any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions”. The existence of the condition must be confirmed “by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.”

There is now a Policy explaining that the WSIB may limit entitlement in cases of a pre-existing condition, but they do no explain how it will be determined that the pre-existing condition has now “overwhelmed” the work related impairment to limit entitlement, or to offset the NEL award.

The WSIB has issued an administrative practices document titled Pre-Existing Conditions; however it does not give any insight into how the decision makers will be implementing the new Policy in the decision making process.

While Board management has stated that all decisions regarding the effect of existing conditions will be reviewed by managers – subject to the WSIB’s internal escalation protocol – with any “overwhelmed” cases subject to review by subject matter experts, neither of the documents that have recently been published explain how the WSIB will objectively measure or determine a previously asymptomatic condition, and its impact on the claim.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law