WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100115
OBJECTION BY: The Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
ISSUES
The worker requests:
- An increase in the 30% permanent impairment rating provided for his psychotraumatic disability.
HOW THE ISSUE ARISE
This claim recognizes a workplace accident on September 23, 1992, in which the worker received injuries to his left lower leg and lower back. The attending health care practitioners diagnosed a soft tissue injury of the lower left leg and a lower back strain. The worker recovered from the left leg contusion but not from the lower back injury. The health care practitioners ultimately provided a diagnosis of mechanical lower back pain and functional overlay.
The operating area concluded that the worker did not have an accident-related permanent impairment of the lower back and that he could return to his pre-accident work duties as a baker for the employer, a bread making company. As a result, the operating area closed out benefits and return to work services as of May 24, 1994.
These issues came before an appeals resolution officer in early 1998. He concluded that a permanent impairment of the lower back had resulted and that this precluded a return to work in any capacity. He directed a non-economic loss (NEL) assessment and a 100% future economic loss benefit from June 1, 1996 to June 1, 1999.
The worker attended a NEL assessment on December 1, 1998 and he received a 31% permanent impairment rating for his lower back condition on March 23, 1999. In 2002, the worker's representative asked the operating area to consider whether the worker had developed an accident-related psychotraumatic disability and it asked that he submit medical evidence from the attending health care practitioners to support the request.
After much enquiry, the operating area accepted a relationship once the worker's representative provided reports from the worker’s psychiatrist in Greece. It determined a 30% permanent impairment rating for his psychotraumatic disability on February 24, 2009 using these records. This resulted in a combine permanent impairment rating (organic and non-organic) of 52%. The worker's representative submitted an objection form on November 5, 2009 and the operating area referred the issue to the Appeals Branch on January 5, 2010.
AUTHORITY
Operational Policy Manual documents:
15-04-02 Psychotraumatic Disability
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
RESOLUTION METHOD AND PROCESS
The worker's representative opted to deal with the presenting issue through a decision without a hearing. He made a written submission in support of the worker's appeal by fax on May 27, 2010. He also attached a report from the worker's psychiatrist dated May 2010.
ASSESSMENT OF THE EVIDENCE
The operating area NEL clinical specialist placed the worker's psychotraumatic disability in the lower to mid range of a moderate impairment in arriving at the 30% rating. The worker's representative submits that the effects of the worker's psychotraumatic disability merits a high range moderate impairment rating, based on the objective findings from the psychologist in 2009 and if not, a redetermination because of deterioration in his condition.
The moderate category rating under policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders provides the following descriptions for decision-makers:
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 room bound at frequent intervals.
The NEL clinical specialist used the report of May 2008 from the worker's psychiatrist and the other psychiatric reports on file when making the 30% NEL determination. She noted the worker to have non-restorative sleep pattern, social withdrawal, depression, phonophobia, mood swings with irritability and poor adaptation to stress. These problems are verified in all the psychiatric reports.
I have reviewed the reports from the worker's psychiatrist and psychologist in Greece and compared those findings to the rating scale descriptors noted above. I am satisfied that the worker's moderate category rating for psychotraumatic disability is correct. The question is whether his symptoms merit a mid level rating as established by the NEL clinical specialist or a high level rating as requested by the worker's representative.
I have also carefully reviewed the descriptors provided by the worker's psychologist in Greece. The key words are “”During the assessment, he was anxious and depressed, he was not psychotic, but his present state is still very serious due to having ideas of committing suicide.” The psychiatrist goes on to state that he takes a number of anti-depressant medications and that it is important that he receive supportive psychotherapy to effect improvement in his life.
These same observations and remedies have been put forth since 2004 by not only his initial psychiatrist in Greece but by the current psychologist. I find the repetitive generalizations in these reports somewhat troubling. They provide no specifics as to dates assessed, treatment directed or provided and the progress achieved, if any. I find it difficult to accept that the worker is not receiving ongoing treatment, if he is truly having suicidal thoughts. As such, I do not accept that the worker's condition is as grave as presented by the reports obtained by the worker's representative.
I conclude that the placing of the worker in the mid level of the moderate category of impairment is correct and the 30% permanent impairment determined for psychotraumatic disability is confirmed as appropriate. The worker's representative has referred to a 21% rating but this is not correct. The combined values of his organic rating (31%) and psychotraumatic disability (30%) total 52% whole person impairment. The 21% represents the net (my emphasis) NEL whole person impairment increase.
The operating area has yet to make a decision as to whether the worker's psychotraumatic disability has deteriorated and if he requires a NEL redetermination. As such, I cannot take carriage of this issue and it is remitted to the operating area to consider.
CONCLUSION
I conclude that
The worker's moderate category rating for behavioural impairment associated with psychotraumatic disability is correct.
The mid level of the moderate category of impairment is correct and the 30% permanent impairment determined for psychotraumatic disability is confirmed as appropriate.
The operating area has yet to make a decision as to whether the worker's psychotraumatic disability has deteriorated and he requires a NEL redetermination.
As such, I cannot take carriage of this issue and it is remitted to the operating area to consider.
The worker's objection is denied.
DATED July 23, 2010
L. J. Vaccarello
Appeals Resolution Officer
Appeals Branch