Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20090090
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
DATE: September 28, 2009
ATTENDEES: Worker, Worker Representative, Witness
ISSUE
Entitlement to a redetermination of the non-economic loss (NEL) award for psychotraumatic disability.
HOW THE ISSUE ARISES
The adjudicator’s decision dated March 20, 2009 denied the redetermination requested, citing that review of the psychiatrist’s December 12, 2008 report by the WSIB medical consultant did not support that there had been evidence of a marked deterioration in the level of the residual permanent partial psychological impairment present.
AUTHORITY
Operational Policy Manual (OPM) document:
15 04 02 – Psychotraumatic Disability
18 05 09 – Redeterminations and Recalculations
18 05 11 – Assessing Permanent Impairment Due to Mental and Behavioural Disorders
EXHIBITS
Seven page pharmacy print-out of the worker’s prescription medication records spanning from September 29, 2008 to September 21, 2009.
ASSESSMENT OF THE EVIDENCE
The worker suffered a closed head injury in the workplace incident of September 10, 1999 resulting in a concussion and associated brain damage, which led to the development of his psychological impairment.
As provided under OPM document 15-04-02:
Psychotraumatic disability entitlement
Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop
Organic brain syndrome secondary to traumatic head injury toxic chemicals including gases hypoxic conditions, or conditions related to decompression sickness.
As an indirect result of a physical injury emotional reaction to the accident or injury severe physical disability/impairment, or reaction to the treatment process.
The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.
Where residual permanent partial impairment is evident, OPM document 18-05-11 provides that:
The WSIB then rates the condition using the Mental and Behavioural Disorders Rating Scale, which combines elements of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition (revised), (the AMA Guides) with the WSIB's Psychotraumatic and Behavioural Disorders Rating Schedule.
The initial NEL award for psychotraumatic disability following the NEL psychiatric roster physician’s assessment on July 27, 2002 was twenty-five per cent. This is representative of the lower end of the twenty to forty-five per cent range for moderate impairment for “Emotional disturbances” under Table 1B of the Guides as set forth in OPM document 18-05-11, as well as
Class 3, Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function
There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress.
In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.
In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.
Subsequently, upon redetermination and a review of the second NEL psychiatric roster physician’s assessment on June 14, 2005, it was determined that the worker’s emotional disturbance had improved to a mild impairment; which in the Guides is indicative of being “Only present under unusual stress” and in OPM document 18-05-11 as:
Class 2, Mild impairment (5-15%) - impairment levels compatible with most useful function
There is a degree of impairment of complex integrated cerebral functions, but the worker remains able to carry out most activities of daily living as well as before. There is also some loss in personal or social efficacy and the secondary psychogenic aggravations are caused by the emotional impact of the accident.
There is mild to moderate emotional disturbance under ordinary stress. A mild anxiety reaction may be apparent. The display of symptoms indicates a form of restlessness, some degree of subjective uneasiness, and tension caused by anxiety. There are subjective limitations in functioning as a result of the emotional impact of the accident.
However, in the interim, as it was noted that he had developed seizures associated with his closed head injury, the NEL clinical specialist determined that an increased NEL award was still in order. The worker was therefore granted a thirty-five per cent NEL award for his psychotraumatic impairment representing “Moderate interference with daily living”; the above is in the mid-range of the twenty to forty-five per cent indicated for “Episodic neurological disorders” in the Guides without an associative reference in OPM document 18-05-11.
In the most recent psychiatric report dated December 12, 2008 from the worker’s attending psychiatrist, she opined that her patient’s condition had indeed deteriorated since the last NEL psychiatric assessment and therefore met the requisite criteria under OPM document 18-05-11; which is:
Class 4, Marked impairment (50 - 90%) - impairment levels significantly impede useful function
There is a degree of impairment of complex integrated cerebral functions that limits daily activities to directed care under confinement at home or in other domiciles. The worker clearly displays chronic limitation of adaptation and function, in the home and outside environment, that ranges from moderate to severe. The worker is withdrawn, forgetful, unable to concentrate, and needs continuous emotional support within the family setting. The worker is incapable of self-care and neglects personal hygiene.
There is a moderate to severe emotional disturbance under ordinary to minimal stress, which requires sheltering. There may be an obvious loss of interest in the environment with the worker becoming extremely irritable, showing significant emotional liability, changes of mood, and uncontrolled outbursts of temper. The worker may be severely depressed, with outstanding features of psychomotor retardation and psychological regression.
The DSM IV diagnostic tool provides five axis of information; the fifth of which is a rating code under the “Global Assessment of Functioning (GAF) Scale”. In the worker’s initial NEL assessment, code fifty was specified which encompasses:
Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).
While the second NEL assessment did not include a GAF indication, the December 12, 2008 report indicated a GAF of forty which encompasses:
Some impairment in reality testing or communication (e.g., speech is sometimes illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgement, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)
In comparing the two NEL assessments, it was relatively obvious that the worker had indeed improved to Class 2 from Class 3 at the time of the second one in terms of his mental and behavioural states. However, with the intervening addition of the seizures, his NEL award was then appropriately increased under the alternate “Episodic neurological disorders” from the original “Emotional disturbances” of “Present in mild to moderate degree under ordinary stress” for his then evident “Moderate interference with daily living”.
Under the Guides, assessment of brain disorders may be done under various categories and, where several are identified as affected, as in the worker’s case, the Guides specify:
In such cases the various degrees of impairment from the several categories are not added or combined, but the largest value, or greatest percentage of the seven categories of impairment, is used to represent the impairment for all of the types. [emphasis added]
Therefore, in the case at hand, it must be determined whether there has been a significant deterioration of the worker’s residual permanent partial psychotraumatic impairment present under the “Emotional disturbances” category or one of the other categories of Table 1B, given that OPM document 18-05-09 specifies, in part, that:
Policy The WSIB may consider a worker’s request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that
the worker's degree of permanent impairment was previously determined to be greater than zero
the worker's condition has deteriorated significantly since the last NEL determination, and
12 months have passed since the worker's last NEL decision.
Under Table 1B, in order to be assessed under Class 4 under OPM document 18-05-11, the following must be evident in one of the following categories
Language disturbances – Cannot comprehend or produce intelligible or appropriate language
Complex integrated cerebral function disturbances – Needs confinement
Emotional disturbances – Present to moderate to severe degree under ordinary stress
Consciousness disturbances – Moderate alterations
Episodic neurological disorders – Requires constant supervision or confinement
Sleep and arousal disorders – Requires supervision of care by caretakers
The most predominant features, as also specified in OPM document 18-05-11, pertains to the need for constant supervision or confinement of the individual and that is clearly not evident in the worker’s case. Granted, while he is somewhat dependent upon his family members for personal needs in the home environment, he is also able to be left alone without such care and supervision and even to go out and about by himself, taking care to carry a cell phone and a medic alert wallet card.
With respect to assessment of his “Emotional disturbances”, there does appear to have been deterioration back to being “Present in mild to moderate degree under ordinary stress” back to Class 3 – Moderate impairment, but now in the upper mid-range of approximately thirty-five per cent which is the same as his current residual permanent partial psychotraumatic NEL award. Therefore the requisite significant deterioration of that condition is subsequently not evident; just a possible change/equivalency in the applicable assessment category under Table 1B of the Guides.
CONCLUSION
I reviewed the file documentation in detail having regard for the testimony heard and the submissions and argument tendered as well as the relevant WSIB policy. In my analysis, I concurred with the adjudicator’s determination that a NEL redetermination is not indicated.
The worker’s objection is denied.
DATED this day, December 16, 2009, at Toronto, Ontario
WDThomson
W. D. Thomson
Appeals Resolution Officer
Appeals Branch