WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150021
DECISION DATE:
April 9, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT: REPRESENTED by:
Employer Employer Representative
HEARING:
Hearing in Writing
HEARD by:
S. McKinnon, Appeals Resolution Officer
ISSUES
The worker is objecting to:
The quantum of the Non-economic loss (NEL) benefit for the organic injury of the coccyx fracture
The quantum of the NEL benefit for the psychological impairment
The reduction to partial loss of earnings (LOE) from November 9, 2012 on the basis that suitable modified work was available with the employer
BACKGROUND
The worker was injured at work on May 4, 2011 when he slipped from a ladder falling about 6 feet. Entitlement was accepted for a L1 fracture and left calcaneous fracture. Secondary entitlement was later granted for a coccyx fracture and for psychological entitlement.
The worker was offered work with the employer working as a traffic controller and performing light housekeeping duties. The worker did not accept that work and benefits were stopped as of May 28, 2012. As outlined in the Appeals Resolution Officer’s (ARO) decision dated
June 25, 2014 LOE entitlement was extended to November 2012 on the basis the worker was completed disabled from work due to his organic and non-organic injuries and a permanent impairment was recognized for the entitlement expanded of the diagnosis of a coccyx fracture. Operations was also directed to make a determination on whether there was a permanent impairment for a psychological impairment and then a further decision whether the work offered by the employer remained available and suitable.
The Operating area determined the non-economic loss (NEL) for the coccyx injury to be 5 per cent, adjusted to 3 per cent on the whole person basis. Operations recognised the worker had a permanent psychological impairment which was quantified at 25 per cent and when adjusted to the whole person, the worker received a total NEL benefit quantified at 51 per cent.
After this was decided the determination was then made that the work remained suitable and available to the worker. Partial LOE was paid from November 9, 2012 and ongoing based on the wage of $34.19 per hour in the offered employment with the employer.
The objection to these decisions was referred to the Appeals Services Division.
AUTHORITY
18-02-03 Payment of LOE Benefits Prior to Final Review
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
18-05-03 Determining the Degree of Permanent Impairment
19-03-03 Determining Suitable Occupation
ANALYSIS
LOE Beyond November 2012- Suitability
The original decision by Operations was made to deny LOE beyond May 2012 on the basis that there was suitable modified work with the employer. At the time of that decision no psychological entitlement was recognised. Entitlement was later extended and in 2014 a permanent impairment was recognised. The prior decision, that the employment offered by the employer was suitable, was confirmed. The employer stated the offer of accommodated traffic controller remains available. However the location would be different than outlined in the March 30, 2012 letter.
Policy outlines that a suitable occupation represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities and that to the extent possible, restores the worker’s pre-injury earnings. The suitable occupation must be available with the injury employer or in the labour market.
Decision
After review of the applicable policies, the file record and the arguments put forward by the workplace parties, I find that the job offered by the employer is not suitable. Full LOE is granted from November 9, 2012 to date, beyond that date further review is to be conducted to determine the worker’s employability prior to the final lock in.
Reasons for Decision
In arriving at that decision I considered all of the available information, however found the following particularly relevant:
The final review date is May 4, 2017. The worker currently has a 51 per cent NEL benefit for the residual impairment for organic and non-organic conditions.
The worker representative argued that the worker is unemployable and that the current evidence supports that position with the employer is not suitable.
The employer representative argued that the job was suitable and that the worker was not totally disabled.
In October 2011 an offer of the position of flagman was made to the worker. This position was at a new subway station being built where the worker would tell pedestrians when they could cross. He would be able to sit, walk and stand. The worker expressed concerns about this job as he stated he was still in an air cast and was using a wheelchair; he was not able to wear safety boots. It was later suggested if his foot swelled he could purchase bigger boots.
The job offer was revisited in January 2012; the worker stated he was using crutches. Vibration monitoring was also offered to the worker by the employer.
The worker was seen at the Foot and Ankle Specialty Program March 20, 2012, he was cleared to return to work within restrictions of no standing, no walking, no stair or ladder climbing and it was recommended he have therapy to wean him off crutches. This was solely based on restrictions for the left foot injury, and it did not encompass restrictions for the back or for any psychological issues.
The modified job offer was outlined in employer’s letter of March 20, 2012. Two of the positions were at a condominium project in the west end of Toronto and one at a TTC site. The Work Transition Specialist (WTS) reviewed them and determined them suitable. This review only considered the restrictions as outlined by the Foot and Ankle Specialty Clinic.
On April 17, 2012 the WTS noted the TTC monitoring job was not available but the other two still were. The WTS memo of April 18, 2012 confirmed they were still suitable. Again this only looked at the restrictions from the Foot and Ankle program.
The worker had a psycho-vocational assessment March 19, 2012. The worker stopped school at 14 years of age in Portugal. He came to Canada in 1988. He was able to speak English and all his previous work experience was in construction and labour work. His cognitive level of functioning after testing was found to in the borderline to average level. His academic achievement levels were low to below average. They noted he had a high level of neuroticism, low level of extraversion. Depression and anxiety were identified. It was strongly advised that the worker participate in psychiatric/psychological treatment before employability could be considered. The emotional state and chronic pain issues should be addressed before any return to work action takes place. He was not considered job ready.
The WTS met the workplace parties April 18, 2012 modified job offer of traffic controller and light housekeeping was offered. The worker was using a cane at that time. Benefits were originally denied for LOE on the basis the worker was not accepting work due to neurological concerns dizziness.
He had a psychological assessment July 11, 2012. The diagnosis at Axis 1 was major depressive disorder, post-traumatic stress disorder, generalized anxiety disorder, and pain disorder. The global assessment of functioning (GAF) was 41. Psychological treatment was recommended. The psychologist wrote that the potentially identified suitable occupations were completely unrealistic at this time. She wrote the worker was currently unsuited to any training or educational upgrading activities.
When reassessed at the Foot and Ankle program in August 2012 they recommended he be referred to a Function and Pain Program for treatment. He was using crutches. Restrictions essentially remained the same, the back restrictions were not part of their assessment. They noted that he continues to have swelling of the foot and balance issues.
At the Physical Work Performance Evaluation October 23, 2012 the worker did not demonstrate safe body mechanics and movement patterns during the test. He demonstrated significant signs of emotional and psychosocial distress. The testing was ended as it was deemed unsafe to continue. The worker was using crutches.
The Back and Neck Specialty Clinic on October 25, 2012 recommended a water based program, followed by a Functional Abilities Evaluation, medication changes and a psychological assessment.
In November 15, 2012 a doctor, saw him and a walker was recommended rather than crutches, a water program and a pain program.
The November 21, 2012 report to the insurance company reported the worker was still using assistive devices, and it was very painful to stand.
Chart note on November 28, 2012 referred to profound depression. Suicidal ideation and feelings of hopelessness were discussed.
The letter of January 7, 2013 denied rollator walker as worker was managing with crutches.
The disability tax credit application of May 2013 indicated the worker was unable to socialize, do laundry, go shopping, and had limitations related to walking, bending and lifting. The diagnosis was low back pain with secondary depression.
The family doctor submitted a note on behalf of the worker in May 2013 stating that a rollating walker was required. As documented in memo 105 of the file this request was approved.
He was seen at the Function and Pain Program June 2013. The diagnosis on admission was pain disorder and major depressive disorder. They were recommending a four wheeled walker. Treatment was recommended but declined by the worker as transportation was problematic although taxi accommodation was offered to the worker.
The Back and Neck program wrote June 2013 that the worker has had no recovery and had chronic multisite pain and pain disorder.
The psychologist reported January 13, 2014 on the treatment provided to the worker up to November 2012. She reported he developed severe depression and anxiety including both panic attacks and traumatic anxiety secondary to a work related injury. The symptoms of unremitting chronic back pain, pain in his ankle, and knee along with anxiety, depression and insomnia prevent him from being able to work, to carry out routine household chores or engage in social and recreational activities. After 10 treatment sessions he showed only minimal improvement. She was of the opinion the worker was completely unemployable.
The psychologist on June 9, 2014 wrote after additional treatment (6 sessions in April and May) and assessment of the worker was completed. She reported the worker was not as despondent as he was previously but had better accepted his dependence on his wife. The diagnosis remained the same. The GAF was 35-40. She was still of the belief the worker remained unemployable.
The psychological restrictions were documented in memo 137 they included not working at heights or near ladders, no performing tasks with deadlines, time pressures or high expectations for productivity, with a need for concentration, no complex tasks or frequent customer contact.
For the job to be suitable it must be safe for the worker and for others he would be working with, in this case the worker uses an assistive device for ambulation which the WSIB has supplied. I cannot find that the worker would be safe on a construction site directing traffic of any kind using either a cane or a walker. The work is not safe and therefore it is not suitable.
In addition I also considered that he has psychological restrictions including problems concentrating, and performing critical thinking which would also prevent the position from being safe. The light housekeeping position was to be performed while not performing the other position therefore it is not suitable either.
Given the severity of organic / psychological impairment after November 2012, that the worker has continued to use assistive devices, the chart notes and other medical evidence supporting he continued to be depressed, there is no indication that he was ready and able to work. I also considered that no issues have been raised in any of the assessment as to the worker’s genuineness since November 2012.
The psychologist deemed him unemployable twice since the last treatment and I accept that opinion given this psychologist was the worker’s treating healthcare professional and the worker participated in a well-established treatment plan with her.
The worker has a significant permanent impairment (organic/non-organic) recognized by the granting of a 51 per cent NEL award. His GAF is in the lower end which indicates a marked impairment when all work related conditions are considered.
I find that the worker is entitled to full LOE to date, but noting this case in not yet at the final review stage I am directing Operations conduct and arrange additional assessments to re-evaluate employability and possible other employment options with the employer (if any) prior to final LOE lock in.
NEL Quantum- Psycho-traumatic Benefit
The worker has been recognised with a permanent impairment in the moderate category (25 per cent adjusted on a whole person basis to 18 per cent). The worker representative has argued it should be placed in the marked category as was done by the psychologist. The employer representative argued the Operations decision should be confirmed.
The policy on evaluating psychological impairments is outlined in policy 18-05-11. Wherein it states that in class 3, Moderate impairment (20-45%) impairment levels are 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.
In 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.
Decision
After review of the policy, the file record, and submissions I do not find a basis to increase the NEL benefit.
Reasons for Decision
In arriving at that decision I considered all of the available information, however found the following particularly relevant:
The worker was recognized with a permanent impairment for the diagnosed conditions of major depressive disorder, post-traumatic stress disorder and generalized anxiety disorder. The NEL quantum was determined after the organic NEL had been calculated. Therefore the reports were reviewed pertaining to the psychological impairment but those reports that refer to limitations for the organic injuries are not duplicated in the determination of the quantum for the non-organic impairment. The NEL rating is for the psychological impairment only.
Reference in the NEL Clinical Specialist notes referred to eight specific documents pertaining to the non-organic findings that were primarily used in the determination.
Chart note for June 28, 2013 refers to the worker being coherent, well groomed and cognitive functions intact as observations from the doctor. No psycho-motor retardations or agitations. The diagnosis was major depressive disorder. This is consistent with other comments in the medical reporting regarding the worker’s presentation. There are no signs of self-neglect; the comments by the treating doctors regarding his activities of daily living and social functioning seem more in keeping with a moderate class of impairment.
For concentration, persistence and pace, the evidence also supports a moderate degree of impairment. The worker stated that he no longer drives any distance due to physical limitations, and concentration. There were problems with attention during his assessments but that he was able to proceed albeit with limitations. His wife left her job to assist him and he requires her assistance to deal with much of his daily activities.
The worker has not demonstrated adaptive strategies to cope with the significant stress in his life following the injury. The NEL clinical specialist noted the worker is constantly worried and fearful of the future.
The psychologist reported January 13, 2014 on the treatment provided to the worker up to November 2012. She reported the worker developed severe depression and anxiety including both panic attacks and traumatic anxiety secondary to a work related injury. The symptoms of unremitting chronic back pain, pain in his ankle, and knee along with anxiety, depression and insomnia prevent him from being able to work, to carry out routine household chores or engage in social and recreational activities. After 10 treatment sessions he showed only minimal improvement. This report outlines his activities. She placed him in class IV- marked.
The psychologist reported in June 2014 the worker remains isolated, he remains limited with respect to social interaction, including family relationships, recreational activities, and has poor concentration and attention, impaired sleep. He remained in class IV marked impairment level of functioning.
These reports refer to the worker’s combined organic and non-organic limitations. He has poor balance and requires assistive devices for ambulation. This has limited his ability to drive, and to tend to household chores and family relationships.
I find that the worker does have a marked level of impairment but this is combination of all of his work injuries and that for the non-organic impairment the placing of the worker at 25 per cent is appropriate given the accepted diagnosis, treatment and presentation.
Quantum of the Organic NEL Benefit- Coccyx Injury
The worker has a permanent impairment for the diagnosis of undisplaced coccyx fracture (5 per cent reduced to whole person 3 per cent). The worker representative argued that the determination was in error and the employer argued that it was correctly determined.
The NEL assessment is an objective process that measures limitations, abilities and range of motion (ROM). This results in a number of measurements that can be recorded and compared to the American Medical Association’s Guides to the Evaluation of Permanent Impairments- 3rd Edition Revised. The NEL rating is based on actual findings. The WSIB is legislated to follow this procedure.
Decision
I reviewed the NEL evaluation forms, the impairment and the calculation details that were used to arrive at the NEL benefit. After this I am satisfied that this is an accurate reflection of the worker’s impairment as these findings are consistent with the medical evidence on file and in accordance with the required procedure for determining the NEL benefit.
Reasons for Decision
In arriving at that decision I considered all of the available information, however found the following particularly relevant:
The medical report of July 28, 2011 noted that the worker was complaining of pain at the tailbone where x-rays showed a facture.
This doctor reported August 25, 2011 that the worker was back for assessment of the L1 and coccyx fracture. The doctor noted there was improvement in the coccyx fracture complaints as it was slowly improving.
Reference was made to the October 22, 2012 report from another doctor that provided details after a full physical examination including the coccyx fracture. He wrote there was a reduced range of movement of the low back in all directions, and no neurological signs identified.
The October 25, 2012 report that recommended water based therapy for the organic impairment.
The NEL clinical specialist made reference to the x-ray report of July 28, 2011, the October 22, 2012 and October 25, 2012 reports and as outlined referred to page 101 of the AMA Guides arriving at a 5 per cent award. On page 101 it outlines the maximum amount for an unhealed coccyx fracture is 5 per cent.
The worker representative argued that there should be an independent assessment. I find there is no basis for that request the information on file are enough for a determination be made and the find there is no indication that there should be an increase or that there is not enough information on file to determine an appropriate quantum.
The worker received the maximum amount for this diagnosis as outlined in the AMA Guides the request for an increase is denied.
CONCLUSION
The objection is allowed in part.
I find that the worker is entitled to full LOE to from November 9, 2012 to date as the offered job by the employer is not suitable and the medical evidence supports that he is completely prevented from performing any type of work from then until the present. Noting the claim is not yet at the final review I am directing Operations conduct and arrange any appropriate additional assessments to re-evaluate employability prior to final LOE lock in.
The rest of the objections were denied.
DATED April 9, 2015
S. McKinnon
Appeals Resolution Officer
Appeals Services Division