WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150036
DECISION DATE:
May 11, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (Self-Represented)
HEARING:
Hearing in Writing
HEARD by:
F. Bruno, Appeals Resolution Officer
ISSUE
The worker objects to the Non-Economic Loss (NEL) Clinical Specialist's letters dated July 11, 2014 and September 29, 2014 that explained the quantum of the Psychotraumatic Disability NEL Award.
BACKGROUND
The worker was employed as a Personal Support Worker with the employer. She began her employment with them in September 2004.
The worker developed a bilateral shoulder condition resulting from her work duties. The accident date accepted was January 31, 2008. She was 57-years of age at the time.
Right shoulder surgery was required in June 2008 and left shoulder surgery in April 2009 for bilateral rotator cuff tears of the supraspinatus tendons.
The worker was later granted a 33% NEL Award for the bilateral shoulder condition in October 2010.
An Appeals Resolution Officer's decision in August 2011, amongst other issues, addressed the issue of Psychotraumatic Disability entitlement. The Operating Area was directed to arrange an assessment at the Psychological Trauma Program to determine its relationship to the work injury.
The Case Manager later reviewed these clinical details and ruled the worker was not entitled to a NEL Assessment for a psychological condition. The worker objected to the decision.
The Appeals Resolution Officer's decision of December 20, 2012 ruled on the issue, and again, amongst other entitlements claimed, concluded a NEL Assessment for the psychological condition was denied.
The worker objected to the Appeals Resolution Officer's decision. In a decision dated June 9, 2014, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) ruled, in addition to other issues, that entitlement for a permanent impairment for a psychological condition was approved, and directed the Operating Area to arrange for a NEL Assessment accordingly.
The Operating Area arranged for a NEL Assessment as directed. The referral diagnosis for NEL purposes was depression. The NEL rating on July 9, 2014 increased the bilateral 33% shoulder NEL Award by 13%, to reflect the Psychotraumatic Disability for a combined organic/non-organic NEL Award of 46%. This was explained in the NEL Clinical Specialist's letter dated July 11, 2014.
The Worker Representative, on behalf of the worker, objected to the decision dated July 11, 2014; however, the decision was maintained as explained in the NEL Clinical Specialist's letter dated September 29, 2014.
The Worker Representative completed an Appeal Readiness Form dated December 29, 2014 regarding the issue and the matter was referred to the Appeals Services Division to address the worker's objection.
AUTHORITY
WSIB Operational Policy:
15-04-02 – Psychotraumatic Disability
18-05-11 – Assessing Permanent Impairment Due To Mental and Behavioural Disorders
18-05-04 – Calculating NEL Benefits
ANALYSIS
I have reviewed the record and have considered the matter.
I acknowledge the Worker Representative's submission dated March 5, 2015. It is his view that the 13% NEL Award granted for the psychotraumatic condition does not reflect the worker's level of psychotraumatic disability.
Reference is made to the various clinical details on record for treatment of the psychological condition. The Worker Representative argues the medical evidence depicts someone with a much more serious condition.
He explains the Psychotraumatic Disability rating was set at 20% and then reduced to a 13% whole person award. He refers to the rating scale, and that the rating reflects a moderate condition. He maintained the medical evidence suggests a more severe condition than a moderate impairment. It is his view the clinical evidence supports a finding that the worker's psychological condition is more reflected under Category 3- Major Impairment (30% to 50%).
The Worker Representative, presumably, is referring to WSIB Operational Policy 15-04-02 – Psychotraumatic Disability; when providing his rationale/arguments on the issue at hand.
WSIB Operational Policy 15-04-02, under the heading "Rating pre-1990 Claims – methods of determining entitlement", explains the psychotraumatic and behavioural disorders rating schedule. This rating scale is used for claims where accidents occurred prior to January 2, 1990 and is therefore not applicable in this case. In the aforementioned Policy, it notes that, for assessing (rating) permanent impairments due to mental and behavioural disorders for accidents occurring on or after January 2, 1990, WSIB Operational Policy 18-05-11 – Assessing Permanent Impairment Due to Mental and Behavioural Disorders; is applicable and the rating scale under that policy is appropriate in this case.
This aside, it is noted the Worker Representative is of the view that the 13% whole person NEL Award granted for the Psychotraumatic Disability is not reflective of the worker's psychotraumatic condition. He is of the view the worker’s condition warrants a higher level of permanent psychotraumatic disability.
The WSIB uses the American Medical Association Guides to the Evaluation of Permanent Impairments, Third Edition (Revised) to calculate NEL Awards. The guides provide an impairment rating for the injured area, which is then converted to a whole person or NEL Award. The intent is to provide consistency in medical assessments across the Province and over time. As a result, workers and their employers have a reasonable expectation that workers with similar ongoing impairments will receive a similar NEL percentage. Secondly, the guides also attempt to establish a degree of consistency when comparing the effects of various types of injuries.
The worker received a 33% NEL award for the organic bilateral shoulder condition. I have reviewed the multitude of clinical records on file pertaining to the psychotraumatic condition. I have particular regard for the Function and Pain Concurrent Program Psychological Treatment reporting, the Psychological Trauma Program reporting and all other reports regarding the worker’s treatment for the non-organic condition. The last report on the file is the Altum Health Function and Pain Concurrent Mood Program Psychological Treatment Discharge report dated May 30, 2012.
The records outline the worker reported ongoing difficulties with activities of daily living. She was able to maintain personal grooming but at a slower pace. Other activities within her limitations did not require direction or supervision and she was independent in performing them.
She was able to look after her needs in the home but confidence waned and she became more dependent on family members. Most of the difficulties related to pain complaints for which, the worker is compensated in the bilateral shoulder organic rating. Socially, the reporting suggests the worker had the ability to interact appropriately with family and others outside the home. She was able to interact, and maintain contact with few of her friends. She demonstrated consideration for others, and was aware of other’s feelings and social maturity. She demonstrated appropriate social behaviours despite the limitations because of the ongoing pain complaints. Although she reported difficulties with concentration and focus, she has demonstrated the ability to sustain adequate concentration and focus when participating in her psychological assessment interviews, testing, etc. Her recollection of the injury, treatments, etc. was accurate. There was some loss of personal efficacy because of her struggles in the return to work process as well as the use of her hands. The reports suggest she had returned to poor coping strategies and leading an unhealthy lifestyle. There was evidence of excessive fear of re-injury and avoidance of activities due to the anticipation of pain. There was no indication of psychological regression or the development of strong passive dependency.
WSIB Operational Policy 18-05-11 - Assessing Permanent Impairment Due to Mental and Behavioural Disorders states, under Class 3, Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function; states as follows; 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.
I have reviewed all of the relevant medical reporting on the case record and find the worker has most of the characteristics of the lower range of the Class 3, moderate impairment. Considering the various criteria under policy # 18-05-11 with respect to the rating scale, my assessment of the worker’s condition is more consistent with the criteria at the lower end of this category.
Where a worker has more than one permanent impairment and is entitled to more than one NEL award, specific steps are taken to arrive at the whole person impairment. The AMA Guidelines require the application of a combination of values which is not the same as addition of values. When reviewing the NEL calculation where it states “Add”, the values are added. Where it states “Combine”, the values are combined using the combined values table of the AMA Guides. The AMA Guides specify when it is appropriate to add or combine values. In this case, it was appropriate to combine the values.
The NEL rating completed by the NEL Clinical Specialist on July 9, 2014 acknowledged all of the medical documentation on the claim record regarding the psychotraumatic condition. The NEL Clinical Specialist used the AMA Guidelines in conjunction with the NEL assessment reporting and determined the psychotraumatic impairment rating to be 20%. She appropriately applied the Provisions of the Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) AMA Guides, to arrive at the 20% NEL Award. The previous organic 33% organic NEL award for the bi-lateral shoulder condition was then combined to an overall NEL award of 46%. The 20% psychotraumatic NEL rating was appropriately combined with the organic 33% NEL award to arrive at an overall whole person impairment award of 46%.
I have reviewed the calculations and found them to be correct. I am satisfied the information on record supports the NEL Clinical Specialist's decisions of July 11, 2014 and September 29, 2014. On the evidence, I find no basis to alter the decisions of the NEL Clinical Specialist, notwithstanding the Worker Representative's arguments to the contrary.
CONCLUSION
The worker's objection is denied.
Dated May 11, 2015 at Toronto, Ontario.
F Bruno
Appeals Resolution Officer
Appeals Services Division