WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100176
OBJECTION BY: Worker
REPRESENTATIVE: Worker
EMPLOYER: Not Participating
ISSUE
The worker’s representative defined the issue as an objection to the quantum of the non organic award (25%) and right groin award currently established at 3% and dating of arrears.
HOW THE ISSUE ARISES
The details of the claim are outlined in the Workplace Safety and Insurance Appeals Tribunal decision dated May 13, 2008, therefore, will only be briefly summarized below.
The claim was established for an incident on December 18, 1985 when this then 43 year old building superintendent while pushing/guiding a one ton garbage buggy strained his back and groin. The worker is in receipt of a 20% award for the residual lower back disability and 20% for the left groin which included the orchidectomies as noted on page 5 of the Workplace Safety and Insurance Appeals Tribunal decision.
Flowing from the above noted decision, entitlement was granted for the right groin and non-organic component.
Following a pension assessment in February 2009, the worker was granted a 3% award for the right groin and a 25% non-organic award as outlined in memorandum 460. The worker was notified of his entitlement/arrears by the Case Manager as outlined in the correspondence dated April 20, 2009 and reconsidered as noted in the February8, 2010 decision. These are the issues for determination.
RESOLUTION METHOD & PROCESS
A 60 Day Decision Option form dated October 7, 2010 was submitted by the worker’s representative.
AUTHORITY REFERENCE AND ASSESSMENT OF THE EVIDENCE
The Appeals Resolution Officer has considered the information on record.
The worker’s representative, in the submission dated July 21, 2009 also requested an opportunity to pursue an objection to the quantum of the left groin quantum. In this respect, the Appeals Resolution Officer has no jurisdiction on the matter. The Workplace Safety and Insurance Appeals Tribunal decision dated May 13, 2008 was clear; specifically page 21 of the decision under point 5. The Tribunal Member stated:
“The worker is not entitled to further arrears for the increase to his PD award provided by the Board in relation to his low back and left groin injuries. The arrears awarded by the Board for the increase in the PD award in relation to these injuries from September 6, 2002 were appropriate.”
Operational Policy Document 18-07-01 speaks to the subject of “Determining the Degree of Disability” Essentially, a permanent impairment evaluation is undertaken when the individual’s condition is stable and the worker has achieved maximum medical rehabilitation. A Board Medical Consultant conducts a permanent disability evaluation and not only is that assessment taken into consideration, but also reporting from the worker’s attending physicians
The Board Medical Consultant examines the worker to estimate the degree of clinical impairment from the nature and degree of the injury and recommends an appropriate clinical rating. The worker’s impairment of earnings capacity is to be estimated from the nature and degree of the injury.
Operational Policy Document 18-07-02 outlines the Board’s rating scheduling which is a schedule of percentages of impairment of earnings capacity for specified injuries which may be utilized as a guide in determining the compensation payable in permanent impairment cases. A permanent impairment award is strictly a clinical award reflecting anatomical or functional abnormality resulting from a work injury.
The Act defines impairment as any physical or functional abnormality or loss, which results from an injury.
Operational Policy Document 18-07-05 speaks to the subject of arrears. Essentially arrears are paid from the date when it is first determined that the disability became permanent. In order to establish the date of arrears, medical evidence is considered
If a permanent impairment award is increased following a reassessment, the increase dates from three months prior to the date of the request for the reassessment or an earlier date if supported by medical evidence.
In assessing the degree of permanent impairment as a result of a non-organic condition, Operational Policy Document 15-04-02 outlines the Board’s rating scheduling. In the policy, four categories are identified, ranging from minor to severe impairment of the total person, with permanent impairment level ranging from 0 to 80%.
As it relates to the issue of the quantum of the non-organic award, specifically reviewing the applicable Policy, Category 2 and 3 are described as follows:
Category 2 - Moderate Impairment of Total Person (15% - 25%)
In this category, 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 the members of the family in all activities which take place outside the home. The worker demonstrates a moderate, at times episodical, anxiety state, agitation with excessive fear of re-injury, nurturing strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal and depressive features, loss of appetite, insomnia, chronic fatigue, low noise tolerance, mild psychomotor retardation and definite limitations in social and personal adjustment within the family. At this stage, there is a clear indication of psychological regression.
Category 3 - Major Impairment of Total Person (30% - 50%)
In this category the worker displays a severe 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 significant diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, a 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.
The Appeals Resolution Officer notes the Social Worker’s October 7, 2008 report in which the worker reported sleep disturbance, he is independent of activities of daily living however, does not undertake household chores, essentially is home bound. He reported social activities as being restricted. The Social Worker was of the opinion the worker presented with symptoms of anxiety and depression and some features of Post Traumatic Stress Disorder.
The Board’s Psychiatric Consultant in the February 2, 2009 assessment describes the worker’s emotional symptoms to include:
- Insomnia/frequent awakening
- Difficulty with concentration and memory
- Chronic sadness and suicidal ideation
- Minimal household activities
- Complaints of irritability and angry outbursts
- Feelings of low self esteem.
It was concluded the worker suffers from a major depressive disorder.
Reviewing the Medical documentation contained in the claim record, the worker has undergone intermittent psychiatric treatment over the years. Specifically, the Appeals Resolution Officer notes the reporting from Dr. Foley Psychiatrist dated January 8, 1998 in which he describes the worker as “chronically anxious and stressed” and was being seen in supportive consultation for depression and anxiety.
Comparing the results of the Board Psychiatric Consultant assessment to the reporting of the treating physician, essentially there are no discrepancies, thus, the Appeals Resolution Officer is satisfied with the accuracy of the Board Psychiatric Consultant’s reporting.
In accepting the reporting of Dr. Foley, the Board Psychiatric Consultant assessment and considering the Board’s rating schedule related to Psychotraumatic disability, the worker’s symptoms are best represented under Category 3 - Major Impairment of Total Person. The question to be addressed is to what degree.
The appeals resolution officer considers the worker to be significantly disabled psychologically depressed, with past suicidal thoughts, unable basically to function at home and socially without his spouse’s support.
Reviewing the medical documentation, it is clear the worker's emotional state is compounded by objective physical discomfort related to the lower back and groin
Diagnostically the Board’s Psychiatric Consultant concluded the worker was suffering from chronic depressive disorder.
Scrutiny of Category 3 suggests the low range of the scale best represents the worker's disability related to the non-organic condition. The worker displays a severe anxiety state, deterioration in family adjustment, breakdown of social integration, withdrawn from the family and essentially is homebound.
The Appeals Resolution Officer notes, prior to June 1997 there is no reporting of any significance related to the non-organic component. The only reference is as documented in paragraph 44 of The Workplace Safety and Insurance Appeals Tribunal decision dated May 13, 2008. There is no persuasive evidence of a non-organic condition prior to June 1997.
As it relates to the quantum of the right groin award, entitlement excludes the atrophic right testicle. The worker following the February 2009 assessment was granted a 2% award from 1994 and increased to 3% from three months prior to the February 2009 assessment.
In this respect, the Appeals Resolution Officer notes, the level of disability relative to the right groin was thoroughly considered. As documented in memorandum 456, the Board Associate Medical Director undertook a review and commented that the Board Rating Schedule provides no mention of inguinal region related conditions.
The Board Associate Medical Director comments that the medical evidence reveals no masses in the inguinal region and no distinct points of tenderness. The operative report of November 2005 provides a diagnosis of chronic right hemi scrotal pain; however, there was no evidence of neuroma.
It is also noted, historically, the Board rates the loss of both testies at 10%, yet, the worker is in receipt of a 20% award for the left groin including the orchadectomies.
Based on the available evidence, the 3% award adequately and accurately reflects the level of disability involving the right groin with the arrears correctly established based on the available medical reporting notably the Medical opinion solicited by the Workplace Safety and Insurance Appeals Tribunal.
CONCLUSION
In the judgement of the Appeals Resolution Officer, the worker’s non-organic award is increased to 30% dating from three months prior to Dr. Foley’s September 1997 assessment as documented in the January 8, 1998 report. Prior to this date, the 10% non–organic award was appropriate and thus arrears from the date of accident to June 1997 are correctly established at 10%.
Furthermore, the award and arrears relative to the right groin is appropriate.
The worker’s objection is therefore allowed in part.
DATED November 23, 2010
M. De Marco
Appeals Resolution Officer
Appeals Branch