Worker v. Employer, 2015 CanLII 32196

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

decision number: 20150049

decision date: February 12, 2015

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer (not participating)

HEARING: Hearing in Writing

HEARD by: R. Calvert, Appeals Resolution Officer

ISSUES

The worker objects to the following decisions as confirmed in the case manager’s correspondence dated April 17, 2013:

1. The calculation of the earnings basis;

2. Reimbursement of $900.00 for a Disability Assessment which was not authorized or requested by the WSIB;

3. The denial of entitlement for psychotraumatic disability;

4. The denial of entitlement for chronic pain disability.

BACKGROUND

This claim was established following a decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) dated February 21, 2005 which accepted entitlement for a low back injury resulting from the worker’s general job duties as an ironworker from 1974 to April 14, 1998. An accident date of August 15, 1995 was established. Low back surgery for L4-5 posterolateral disc decompression and right foraminal L4 decompression was carried out on June 4, 2002.

The worker was granted a 29 percent non-economic loss (NEL) award in 2005 and this was increased to 32 percent in January 2013. The worker stopped working on April 14, 1998. He was granted a full (100 percent) future economic loss (FEL) benefit from June 1, 1998 which continued to age 65 (January 1, 2009). The worker has been in receipt of Canada Pension Plan disability benefits since August 1998.

In June 2012 the worker’s representative requested a NEL redetermination or, in the alternative, entitlement to chronic pain disability (CPD) as the worker was experiencing increased pain. The worker’s representative also objected to the earnings used to calculate the earnings basis, specifically on the grounds that the worker’s employment insurance benefits were excluded in the calculation of the earnings basis.

The worker’s representative requested consideration of entitlement for psychotraumatic disability; however, as there was no Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) diagnosis on file and there was no evidence of a condition manifesting within five years of the injury or last surgical procedure, entitlement under the psychotraumatic disability policy could not be considered. Entitlement to chronic pain disability was also denied as the worker’s symptoms were not found to be inconsistent with the level of organic impairment.

Finally, the request for reimbursement of a $900.00 fee for a report prepared by Disability Assessment Services was denied as this report was neither requested by nor authorized by the WSIB. The worker is objecting to the above noted decisions and the appeal is now before me for further consideration.

AUTHORITY

Workplace Safety & Insurance Board Operational Policy Manual (OPM) documents:

18-06-01 – Calculating Temporary Total Disability Rate

17-02-03 – Payment of Clinical Assessments/Reports Requested for Adjudication

15-04-02 – Psychotraumatic Disability

15-04-03 – Chronic Pain Disability

ANALYSIS

In reviewing this objection, I have had regard for the claim file information, relevant policy and legislation and for the arguments presented.

Exclusion of employment insurance benefits in the calculation of the earnings basis

The decision regarding the calculation of the earnings basis was rendered in July 2005. Therefore, I must consider the policy which was in effect at that time. Based on the policy in effect at the time, I find that the worker’s average earnings were correctly calculated with the exclusion of the employment insurance (EI) benefits.

The worker’s representative submitted a copy of policy 18-02-04, “Determining Long-term Average Earnings: Workers in Non-permanent Employment”, to support the worker’s appeal. This policy, however, only applies to decisions made on or after February 15, 2013 for all accidents occurring on or after December 1, 2002. The worker’s accident would not apply as it predates the application date.

The worker secured employment through the union hall and a list of jobs was provided by the worker’s representative. It is noted that the worker’s employment was irregular depending on the availability of work through the union hall. He relied of employment insurance (EI) benefits during periods of unemployment. The worker’s accident date was 1995 and therefore, the future economic loss (FEL) benefit would be calculated utilizing the same pre-accident earnings as those used to calculate the temporary total disability benefit rate.

WSIB policy 18-06-01, “Calculating Temporary Total Disability Rate”, states,

When estimating average earnings according to the Workers' Compensation Act (the Act), decision-makers determine whether periods of lapse in employment are to be factored into the average earnings estimate by considering the worker's usual employment cycle. Only if periodic lapses are part of the worker's usual employment cycle are they to be considered in the estimation.

The policy also states,

EI benefits are not earnings for the purposes of determining a worker's average earnings, except for federal work-sharing or job creation programs. This is because the Act requires that only the worker's earnings with the accident employer be used to calculate (or recalculate) the worker's average earnings.

The periods of unemployment that are characteristic of the employment cycle in the industry in which the worker is employed and can be anticipated to occur are factored in to reduce the earnings basis. Periods of unemployment are also factored in when they form a pattern in the worker's usual work cycle.

In this case, the worker’s ability to maintain consistent, uninterrupted employment relied on the availability of employment through his union hall. When there was no work available the worker received employment insurance benefits. Based on the directives outlined in the policy, the worker’s earnings basis was correctly calculated by factoring in the periods of unemployment but excluding the amounts received through EI benefits as they did not qualify as “earnings”.

The worker’s request for recalculation of the earnings basis to incorporate earnings received from EI is therefore denied.

Reimbursement of $900.00 for Disability Assessment

The worker’s request for reimbursement of costs associated with the preparation of this report is granted. WSIB policy 17-02-03, “Payment of Clinical Assessment/Reports Requested for Adjudication”, states that the WSIB will pay for medical reports not specifically requested by the WSIB if the information submitted is necessary and/or useful for making a decision. If the report simply repeats information already on file or contains information that is of no value to the adjudicative process, no payment is made.

The November 7, 2011 report from Disability Assessment Services Inc. was prepared by an orthopaedic surgeon at the request of the worker’s representative in an effort to support the worker’s request for NEL redetermination. I note that the objective findings contained in this report were utilized by the NEL Clinical Specialist for purposes of NEL redetermination and ultimately supported the increase in the worker’s NEL award to 32 percent.

Although this report was not authorized or requested by the WSIB, it was instrumental in determining the worker’s benefit entitlement with respect to the NEL redetermination. Consequently, I am allowing the worker’s request for reimbursement of this report in the amount of $900.00.

Entitlement for psychotraumatic disability

The worker’s request for entitlement to psychotraumatic disability is denied. First of all, there is no formal psychological/psychiatric assessment on file to support the request for entitlement. Furthermore, policy 15-04-02, “Psychotraumatic Disability” states,

If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure.

The medical evidence does not identify a psychological impairment with associated DSM-IV diagnosis manifesting within five years of the injury or last surgical procedure. A psychovocational assessment in 2005 stated that the worker had received some psychiatric treatment from North York General Hospital in 1999; however these reports have not been submitted to the claim file. At the time of this 2005 evaluation, the worker had not been prescribed any medications for treatment of a psychiatric/psychological condition. His medications were primarily for pain management purposes. While he did exhibit a number of pain behaviours, the assessment did not identify any psychological symptoms that might negatively impact the worker’s ability to participate in the labour market.

The medical evidence does not identify a psychological/psychiatric impairment arising out from the work injury; therefore, the worker’s request for entitlement to psychotraumatic disability is denied.

Entitlement for chronic pain disability

The worker’s request for entitlement under the chronic pain disability policy is denied. WSIB policy 15-04-03, “Chronic Pain Disability” outlines the five criteria which must be met for entitlement under the CPD policy:

1. A work-related injury occurred;

2. Chronic pain is caused by the injury;

3. The pain persists 6 or more months beyond the usual healing time of the injury;

4. The degree of pain is inconsistent with organic findings;

5. The chronic pain impairs earning capacity.

In order to consider entitlement the worker must fulfil all five criteria. Although a worker may experience chronic, unrelenting pain in response to an injury, this does not suggest that the worker meets the requirement for entitlement under the WSIB’s CPD policy, particularly if the degree of pain is consistent with the severity of the injury. In this case the worker has been awarded a fairly significant NEL award (32 percent) for residual impairment related to his low back injury.

Although the medical reports substantiate persistent difficulties arising from chronic pain, the pain is attributable to an organic source (a failed low back surgery). The pain management provided to the worker over the years was intended to reduce the pain resulting from the physical injury. Consequently, the worker does not fulfil the fourth criteria (The degree of pain is inconsistent with the organic findings) as there is a physical justification for the persistent pain.

As the worker does not meet all five of the required criteria, entitlement under the chronic pain disability policy is denied.

CONCLUSION

1. The calculation of the worker’s earnings basis was correctly determined by excluding the amounts received through EI benefits during periods of unemployment;

2. The worker’s request for reimbursement of the $900.00 fee for the report prepared by Disability Assessment Services Inc. is granted;

3. The worker’s request for entitlement to psychotraumatic disability is denied;

4. The worker’s request for entitlement to chronic pain disability is denied as he does not meet all five of the required criteria.

The worker’s objection is allowed in part.

DATED February 12, 2015

R. Calvert

Appeals Resolution Officer

Appeals Services Division