WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090024
OBJECTION BY: Worker (self employed)
EMPLOYER: Participating
REPRESENTATIVES: Worker
HEARING DATE: July 21, 2009
ATTENDEES: Worker, Worker Representative,
ISSUES
Non-economic loss (NEL) redetermination
Potential wages used to calculate the R2 future economic loss (FEL) award.
HOW THE ISSUES AROSE
On February 3, 1993 this then self-employed owner/operator of a courier company slipped on some ice while delivering a box, hitting his head and injuring his low back. Diagnoses of contusion to the back of the head and cervical and low back strains were given. At the point maximum medical recovery was achieved the WSIB determined the worker did not have a permanent impairment on an organic basis.
Subsequently in October 1993 the worker’s claim was allowed under the WSIB’s chronic pain disability. However in March 1994 entitlement was rescinded on the basis the worker did not meet the medical criteria of the pain being consistent and genuine. However, entitlement was reinstated as a result of a September 1, 1994 Decision Review Specialist (DRS) decision. In addition, the Decision Review Specialist directed the Operations Section to arrange a non-economic loss (NEL) assessment. Maximum medical recovery was deemed to have been achieved as of March 31, 1994. The NEL assessment occurred on December 7, 1994 after which he was granted a 15 percent NEL award in May 1995.
The DRS decision also granted the worker further vocational rehabilitation services and directed that an initial future economic loss assessment be conducted.
With respect to vocational rehabilitation services, the worker was sponsored in a retraining program in micro-computer business applications from September 1994 to August 1995. He successfully completed his training program. After the program he was sponsored in his job search. During this process he found a special work placement which lasted over three months. After the completion of the program he was hired with the placement employer in July 1996 with a starting wage of $15.00 per hour. He then left his employment on his own volition according to the employer.
With respect to the FEL determinations, the initial determination was in effect from June 1, 1995 to June 1, 1997 and the benefit was based on the difference between the worker’s personal coverage ($42,000.00) escalated earnings and projected earnings of a purchasing and inventory clerk NOC 1474. This provided for a 47.36 percent benefit. At the time of the first FEL (R1) review notice of assessment from Revenue Canada for the years 1992 to 1996 inclusive were not available. As such the worker was granted a sustainability benefit at R1. The benefit covered the period June 1, 1997 to June 1, 2000. After the March 2008 WSIAT decision tax returns for the years 1999 and 2000 were provided. As they confirmed there was an ongoing wage loss the worker’s R1 FEL benefit was based on a comparison between the worker’s escalated pre-accident personal coverage earnings and potential earnings of $10.50 per hour as a purchasing and inventory clerk (see memorandum # 16). The R1 FEL benefit equated to a 44.07 percent benefit. An R2 FEL decision was not made initially as in a February 1999 decision an Adjudicator from the Special Investigation Branch informed the worker that entitlement and benefits beyond August 23, 1993, including entitlement under the WSIB’s chronic pain disability policy, a FEL benefit and a NEL award were not appropriate. As a result, a substantial overpayment was created in the claim. The Adjudicator’s decision was upheld by the Appeals Branch.
WSIAT found to the contrary and reinstated the worker’s entitlement under the WSIB CPD policy, his NEL award and his FEL award. The decision was dated March 25, 2008.
In August 19, 2008 correspondence the worker representative requested the following.
Final FEL (R2) determination
NEL redetermination based on WSIAT finding the worker’s entitlement extended to his neck, low back, headaches and dizziness. He was of the opinion this constituted a material change in circumstance
Full FEL from the date of permanent worsening which was May 23, 2003.
As a result of the representative’s correspondence a Claims Adjudicator made a final (R2) FEL determination. In her decision of October 22, 2008 the Claims Adjudicator found that the potential wage range in 1999 for the suitable employment or business (SEB) of NOC 1474 Purchasing and Inventory Clerk was between $11.50 per hour and $15.93 per hour. In determining the wage to use the Claims Adjudicator noted at the time of the final FEL review the worker was 40 years of age and as such had 25 years in order to attain the wage identified. In this case she elected to use $14.45 per hour as the deemed wage as according to her decision this was the most frequently paid wage.
In the same decision the Claims Adjudicator noted that at the time the worker’s initial NEL award was determined he had entitlement under the WSIB’s chronic pain disability policy which included his organic impairments of low back, neck and general head injury. She also noted that the medical reports of May 23, 2003 and July 15, 2008 did not support a finding the degree of permanent impairment had deteriorated. As such a NEL reassessment was not warranted.
In addition, as deterioration in the worker’s degree of permanent impairment was not evident the Claims Adjudicator determined the worker would not be entitled to a full FEL benefit as of May 23, 2003. This particular decision was not before.
The worker’s objections relating to his request for a NEL redetermination and a recalculation of his R2 FEL award using R1 potential earning are now before the Appeals Resolution Officer.
EXHIBITS
Not applicable.
AUTHORITY
Occupational Policy Manual documents
18-04-19 – Objections to FEL determinations
18-04-20 – Final FEL Benefit Review
18-05-09 – Redeterminations and Recalculations.
ASSESSMENT OF THE EVIDENCE
In rendering this decision I have considered the record, the worker’s testimony, the representative’s arguments and Workplace Safety and Insurance Board (WSIB) policy.
Analysis
Issue #1: Non economic loss (NEL) redetermination
The Claims Adjudicator denied entitlement on the basis of two medical reports dated May 3, 2003 and July 15, 2008 report from Dr. Russell. She found these reports did not support a finding the worker had sustained a significant deterioration in his permanent impairment.
The worker representative provided detailed arguments as to why a NEL redetermination should be granted. Factors he was of the opinion should be considered included the time period which had elapsed from the first NEL assessment, subjective complaints of the worker which were confirmed in the medical reporting, objective change in his condition as reported in the medical reports over the years, and is increased treatment.
In supporting his argument he noted that at the time of the initial NEL assessment the worker’s impairment was classified as mild. He referenced portions of the NEL assessment report with respect to the worker’s functioning along with his mental status. He then compared this with more recent medical reporting to show that over time the worker’s condition had deteriorated. He referenced various medical reports from Doctors Rao and Russell over the years to support the worker’s position that his condition deteriorated over time starting in May 2003. He also noted that although the worker had entitlement under the WSIB’s chronic pain disability (CPD) policy the March 2008 WSIAT decision delineated the areas of injury covered under his CPD. I gathered he was of the opinion that by including new areas of injury a NEL redetermination should be automatic. In summary he was of the opinion the worker’s permanent impairment had worsened and met the policy criteria for a NEL redetermination.
Prior to the hearing there was little in the way of medical reporting, post the December 12, 1994 NEL report. Prior to the hearing the representative provided me with clinical notes from Dr. Rao and Dr. Russell.
With respect to the medical reporting in the record at the time of the Claims Adjudicator’s October 22, 2008 decision the following was noted.
Along with the December 12, 1994 NEL assessment report was a January 23, 1995 narrative report. The narrative report provided the following information in part:
The names of medication were unknown but the worker indicated he was taking a painkiller, muscle relaxants and sleeping pills.
There were stressors in the family along with financial stressors.
With respect to activities of daily living it recorded he did little dusting, cooking and one or two dishes at a time. In addition, he vacuumed occasionally.
With respect to his functioning level at the time the following information was recorded in part:
Takes about 15 minute to put on his clothes.
Feels half asleep all the time.
Can watch about 1/2 hour of television and then needs to get up due to pain. Walks around and does some stretching. Has watched whole movies standing. He can read for about 15 minutes with good following and understanding of the material.
Has not noted too much change in his conversational abilities but does find his patience less.
Memory worse in recalling phone numbers and details with his ability to understand things a bit slower.
With respect to a typical day of activities it was recorded that he walked, watched television, went to school, made some phone calls and spent some time with his wife and child.
With respect to his social life the following was recorded in part:
Fewer friends. Three or four friends.
Socializing was done at home but he would go out more often if there were more finances available.
Other
Mood was good when out of the house.
Energy level low.
Mental Status
Quite cheerful and laughed through much of the interview.
He did not seem to be in pain.
Testimony
The worker provided testimony with respect to his condition post his NEL assessment starting in 1995. He recounted his accident and his functioning level and mental status in 1995 which was the year he was granted a 15 percent NEL award for his chronic pain disability. He then provided testimony as to how his condition had changed over the years. His testimony included the following.
1995
Now
Slept about 3 or 4 hours with the help of some sleep medication.
Takes him between 2 to 3 hours to fall asleep. When he does sleep it is for between 30 and 45 minutes. It then takes him time to fall back to sleep. He takes two sleeping pills but finds they are not helping.
Sitting too long caused some concentration problems as did his medication.
Sometimes he cannot recall events from the previous day. He was not certain whether this was due to his medication.
Prior to 2002/2003 he was taking Oxycocet and over the counter medication.
When he started seeing Dr. Russell in 2002/2003, his medication increased as not only was he taking Oxycocet but he also began using pain patches, 100 mg every other day.
He also indicated that in the mid to late 1990’s he developed anxiety. He attributed his anxiety to the fact he had no motivation, his family was not doing well and he was depressed. He attributed his depression to the fact he began working at age 15, built a business and then after his work accident no one was interested in him and he had no future.
Between 1995 and 2000 he did not receive much medical attention as he moved from Toronto to Brampton. It was hard to find a family doctor in Brampton and as such he would go to walk in clinics when needed. When he did seek medical attention at a walk in clinic he was given 10 mg of Oxycocet.
In 2000 he was able to find a family doctor, Dr. Rao. He was of the opinion Dr. Rao did not know a great deal about pain and as such, instructed him to continue to take Oxycocet as required. She also referred him to Dr. Russell for his pain. Since that time he has seen
Dr. Russell once per month. He saw Dr. Rao for his sleep and depression medication and
Dr. Russell for his pain medication.
At the time of the hearing the worker indicated his back impairment was his main problem although his neck also hurt. He also indicated he was taking the medication for the following symptoms.
Depression 3 pills per day (of the same medication).
Sleep Problems 2 pills per day (of the same medication).
Pain Pain patches which are good for 3 days but he changes it every other day. Oxycocet, two pills in the morning. Was started on a new medication but there was side effects as it caused him to have pain in his chest.
With respect to activities of daily living he indicated that he lived in a house and that he got up between 7:30 and 9:00 a.m. The time he got up depended on how bad his back was on any given day. He had a television in his bedroom and as such he might watch some television before getting up. When he got up he made coffee and then lay on the couch. He had no motivation and was of the opinion his depression was bad. He did not clean up around the house but did some cooking. Cooking involved using the microwave. He tried to get out of the house once a week and go to a mall or go to a friend’s place.
A review of the medical reporting which was available to the Claims Adjudicator at the time she made her decision showed the following.
After the December 7, 1994 NEL assessment report the next medical report was from Dr. Russell and was dated May 23, 2003. When seen the worker was complaining of chronic lower back pain associated with pain radiating down the posterior and lateral aspect of the left leg. Medications were those of Clonazepam, Toradol and Oxycocet. It was reported the worker was taking five Oxycocet pills per day with the effectiveness of the medication getting less.
On a functional basis the physician indicated the worker appeared tense, with a poor sleep pattern and pain varying from between 2 to 5, intrusive.
Based on range of motion findings it was determined that the worker’s flexion was 50 to 60 percent of normal.
Various diagnoses were given including fibrositis, chronic pain syndrome, stress and sleep problems. Medication appeared to be changed from Oxycocet to Oxycontin as well as Perocet while the worker was titrated. It appeared that the worker was going to eventually be treated by a Duragesic patch.
In a December 2, 2003 report Dr. Russell recorded the worker was being treated by way of duragesic 50 micrograms every three days with Percocet for breakthrough pain. He was asking the WSIB for coverage of a range of analgesics, including duragesic, methadone and Neurontin.
The next report found in the record was dated July 1, 2008 and was from Dr. Russell. The report was addressed to the worker representative. The report recorded the worker was initially seen in May 2003 and had been under his continuous care for pain since that time. He commented the worker was co-operative and motivated to follow his treatment.
The report also provided the following information in part.
The worker was first seen on May 23, 2003 with chronic pain a result of a WSIB accepted back injury in 1993. Prior to coming under his care the worker was very incapacitated by intrusive pain, numerous investigations failed to find a correctable resolution by surgery. He presented with a typical pain syndrome, pain focused on the back, fibrositis, osteoarthritis and possible root irritation.
Medications were Fentanyol and Percocet and an anti-depressant which was prescribed to deal with the worker’s sleep disturbance and mood.
He can sit for 45 minutes.
Over the last few years he had been troubled by neck pain with root irritation down his left arm and secondary occipital headaches.
Overall with analgesics, hypnotics etc., he had improved since first being seen in 2003. The pain was no longer that intrusive. Significant changes in the worker’s symptoms were not anticipated.
The doctor also recorded the sequence of events at the time could be summarized as lumbar injury overshadowing neck injury, intrusive pain causing insomnia, fibromyalgia and depression. While under my care I think we have reached the maximum amount of therapy response. As one would expect that following such injuries osteoarthritis is more prevalent due to changes of alignment, initial injury, damage, spasms etc.
Prior to the hearing the worker representative submitted a package of material which included a list of medications he had been taking since at least November 2002. The package also included clinical notes from family doctor Dr. Rao covering the period March 16, 2001 to December 5, 2007. The notes were very difficult to read. What I could read showed that by about April 24, 2002 the worker was experiencing anxiety and some occasional panic attacks along with requiring sleeping medication. The reports also showed the worker was seen on an ongoing basis for chronic lumbar back pain for which medication was prescribed.
There was another set of clinical notes which appeared to be from a walk in clinic. I was unable to decipher most of the information recorded and therefore did not find them helpful for decision making purposes. There was a third set of clinical notes from Dr. Russell which covered the period from May 2003 when he first saw the worker to March 2007. Once again the reports were difficult to read. As best I could make out, what they did show was the worker continued to see Dr. Russell throughout this period for ongoing pain complaints.
Findings
It was known from the relevant policy that when determining a worker’s permanent impairment pursuant to chronic pain disability a decision maker looked for evidence of marked life disruption resulting from a worker’s pain experience in relation to activities of daily living, vocational activity, physical and psychological functioning as well as on family and social relationships.
It was already noted that at the time maximum medical recovery was achieved on March 31, 2004 the worker’s degree of permanent impairment was classified as mild; hence he received a 15 percent NEL award. This percentage of award was the maximum award in the mild category for accidents post January 2, 1990.
Through the worker’s testimony it was learned his condition deteriorated over time. There was little in the way of physical findings to support deterioration on an organic basis which would in turn lead to deterioration in his mental status. Even so, there are clinical notes from both the family doctor and Dr. Russell, pain specialist, which showed the worker required an increase in the number of pain medications he was taking to assist in managing his pain and his depressive symptoms. In addition, through the worker’s testimony it was evident that at least on a subjective basis his activities of daily living had deteriorated.
Based on the worker’s testimony, medical reporting supporting the worker has required increased medication to try to decrease his pain experience and the fact he was last seen in December 1994 for NEL assessment purposes, I find the worker meets the criteria for a NEL redetermination. As such, the Operations Section is to make the necessary arrangements. I would note that this decision has allowed for a NEL redetermination.
With respect to the permanent worsening date (PWD), unlike the worsening of a permanent partial disability (PPD) in cases of a pre-January 2, 1990 injury, the permanent worsening date is established based on when the permanent worsening becomes evident versus being retroactive three months from the time a PPD reassessment was requested. As such in this case I have established the PWD as May 23, 2003 which was the date of Dr. Russell’s first report. At that time the worker’s pain medication appeared to be increased and there did not appear to have been any significant change in his pain experience since that time.
Whether or not the worker’s condition has in fact deteriorated will be determined by a NEL Roster Physician and a WSIB NEL Clinical Specialist.
Issue #2: Calculate the R2 future economic loss (FEL) award based on D1 deemed earnings.
The worker representative noted that initially when entitlement to CPD was granted the only medical precaution identified related to driving long distance. He noted that based on the
March 2008 WSIAT decision the worker’s areas of entitlement captured under the worker’s CPD award had increased. He opined this was one factor which needed to be considered in recalculating the worker’s R2 FEL award. In addition, he noted that although the worker received a diploma while participating in vocational rehabilitation activities it was from a non college program. He was of the opinion it did not assist the worker in obtaining employment even though he continued to send out resumes for approximately one year. He also noted that the March 30, 1994 psychovocational test results recorded the worker would have difficulty upgrading beyond a Grade ten level and would require one on one training which he did not get. He also was of the opinion that the worker’s depression and anxiety was progressing prior to the R2 FEL determination which would have had an impact on his projected earnings. He also opined that based on the merits and justice of the case the R2 FEL award should be recalculated using the D1 potential earnings.
The worker testified that he was sponsored by the WSIB at the Toronto School of Business and that he completed the program and received a diploma in 1996 or 1997. He looked for work after that for a year or so. He sent out resumes but did not get any calls. He also found that some employers did not acknowledge the accounting program from the Toronto School of Business while others were not “thrilled” with his lack of experience.
In 1997 to 2000 his cousin started what was referred to as a barter business through the internet. As I understood it, his cousin would solicit clients to sign up with him. Once he had clients he used software from a company in the U.S. to facilitate the exchange of services or products from one individual for services or products from another individual. His cousin would charge a 5 percent commission fee for facilitating the process of which the software company would receive a percentage.
He helped his cousin with certain aspects of the business such as setting up his receivables. His cousin passed away in 2000 and he took over the business but did not make money at it. In 2009 he spent about one hour per week on the business and made about $20.00 or $30.00 for the year 2009 up to the date of the hearing.
Findings
In adjudicating this issue it must first be noted the issue before me did not relate to the suitability of the vocational objective, now referred to suitable employment or business (SEB) identified for this worker. The issue before me related to the earnings used to calculate the R2 FEL award. The worker representative asked me to use D1 potential earnings versus the potential earnings recorded in the Claims Adjudicator’s October 22, 2008 decision.
Based on the record the projected D1 net average earnings were deemed to be $297.58 per week while the worker’s R2 deemed earnings were determined to be $14.45 per hour gross over a 40 hour work week. Although the Claims Adjudicator did not include the effective date of the R2 decision or the period it was in effect, the record showed the start date was June 1, 2000. As this was the final FEL decision it would be in effect until age 65.
I reviewed the relevant policy document relating to objecting to FEL determinations. The policy document showed that for an objection to be successful it needed to be shown that the WSIB did not properly
consider all the evidence available at the time of the determination or review, or
interpret the available evidence in calculating the worker’s future loss of earnings.
Although the worker representative correctly stated that a March 1, 2008 WSIAT decision expanded the worker’s entitlement under the WSIB’s CPD policy to include not only his low back, but also his neck, headaches and dizziness, these conditions were already factored into the worker’s 15 percent permanent impairment award. I said this noting a CPD award was holistic in nature. A CPD award does not recognize such things as range of motion or neurological deficits as does an organic permanent impairment rating. Rather, a NEL award in a CPD case recognized a worker’s overall pain experience in relation to how it impacted various aspects of his/her life, whether he/she initially had a single organic injury or several. In this particular case the worker’s overall pain experience from a permanent impairment perspective was rated at 15 percent which was considered in the mild category. Even at the time of this decision the worker’s recognized degree of permanent impairment was 15 percent. Should the percentage of the worker’s award increase after his NEL redetermination which I have ordered by way of this decision, it would only be effective from the permanent worsening date which I had established as May 23, 2003. This date was outside of the R2 FEL determination period.
Although I have indicated that all of the worker’s various organic impairments would be considered holistically for NEL purposes, all of a worker’s medical precautions would be considered when determining what type of vocational objective he/she could pursue.
The worker representative questioned the quality of the educational program which the worker successfully completed. This issue speaks to the suitability of the vocational objective which was not an issue before mer. Suffice it to say the worker successfully completed the program and as such, the presumption would be the worker had the necessary skills to enter into an entry level position in the selected vocational objective. In addition, the following facts supported a conclusion that any medical precautions he had did not preclude him from performing some type of work.
after he obtained his diploma he actively participated with the WSIB in job searching.
during the job search phase he was sponsored by the WSIB and participated in a special work placement for just over three months to gain work experience.
subsequent to the work placement he was hired full time by the placement employer in July 1996 with a starting wage of $15.00 per hour. It was known from the record that by August 1996 the worker stopped working with the employer on his own volition.
Although the worker representative was of the opinion the worker’s condition had deteriorated prior to the R2 FEL determination the fact his degree of permanent impairment continued to be recognized as 15 percent supported a contrary conclusion.
With respect to the deemed earnings used by the Claims Adjudicator as recorded in her October 22, 2008 decision, they were obtained from 1999 labour market information. This information was appropriate noting the R2 FEL determination was in effective from June 1, 2000. It was also noted that the vocational objective for which the worker received training had a range of earnings from $11.50 to $15.93 per hour. The Claims Adjudicator selected $14.45 per hour on the basis this was the most frequently paid hourly rate.
A review of the appropriate policy document 18-04-20 showed that at the time of the final FEL review (R2), projected earnings were to be adjusted to those of an experienced worker in the following types of cases.
returned to work, but is under-employed
was not currently employed
had never returned to work.
Based on a review of the record, for all intense and purposes the worker returned to new employment for a brief period of time in July 1996 to August 1996 earning $15.00 per hour. After that he did not work up until the time of his R2 FEL determination or if he did he had no earnings. As such, in my opinion, this was the appropriate section of the guidelines to use in determining the worker’s projected earnings for R2 purposes.
The guidelines also recorded some of the factors which should be taken into consideration when determining whether a worker could achieve the maximum earnings in the wage range.
The Claims Adjudicator did not use the maximum earnings for R2 FEL calculation purposes; rather she used the most frequently paid hourly rate of $14.45. At the hearing I was not presented with wage information to the contrary. As such, I accept the information provided by the Claims Adjudicator to be factual.
In addition, I accepted the Claims Adjudicator’s rational for selecting $14.45 per hour as the projected earnings as I agreed that at the time of the R2 FEL determination the worker was 40 years of age and had 25 years to attain this hourly rate. Assuming the worker was a good employee, over time, as he gained experience, his hourly rate would increase commensurate with his experience level. Hence, I agreed with the Claims Adjudicator and found the projected hourly rate of $14.45 for R2 FEL calculation purposes was correct.
In conclusion I find the WSIB did properly consider and interpret all the evidence available at the time of the determination when calculating the worker’s R2 FEL benefit.
CONCLUSION
The objection is allowed in part.
The worker is entitled to a NEL redetermination for his CPD. However, whether in fact his degree of permanent impairment has increased will be determined by a WSIB NEL Clinical Specialist after the worker has been assessed by a NEL Roster Physician.
The projected earnings used to calculate the worker’s R2 FEL benefit are appropriate.
Should the worker’s NEL award increase, the Operations Section needs to make a determination as to whether the vocational objective/suitable employment or business selected in this case continues to be suitable. If not the worker’s employability will need to be addressed.
Should it be necessary to address the issue of employability it must be remembered that one is dealing with a CPD case. As such, medical precautions are not the determinative factor. Rather, the determinative factor is the impact of the worker’s pain experience on his overall ability to function.
Should there be further issues arising out of this decision, they would be considered new ones and would be referred back to the Appeals Branch as such.
DATED September 3, 2009
B. Howarth Appeals Resolution Officer Appeals Branch