Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20150072
Decision Date: February 11, 2015
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer (not participating)
Hearing: Hearing in Writing
Heard by: Mr. K. Gowans, Appeals Resolution Officer
Issue
The worker objects to the quantum of the non-economic loss (NEL) award granted for chronic pain disability (CPD).
Background
Initial entitlement for gradual onset of neck and low back strains was accepted with an accident date of May 5, 2005, in a prior Appeals Resolution Officer (ARO) decision dated June 29, 2012. Entitlement to chronic pain disability (CPD), including entitlement to a non-economic loss (NEL) determination was subsequently accepted in the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated April 3, 2014.
A NEL clinical specialist rated the NEL award on June 9, 2014 using the medical information contained in the claim file. In a decision dated June 12, 2014, a 15 percent NEL benefit for CPD was granted. The worker disagrees with this decision and has brought the case forward to the Appeals Services Division for further consideration.
Authority
18-05-03 Determining the Degree of Permanent Impairment
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
Analysis
For the reasons set out below, I find the 15 percent NEL benefit granted for CPD in this claim is appropriate and adequately reflects the worker’s current level of permanent impairment for the CPD condition.
The NEL Clinical Specialist performed the NEL rating on June 9, 2014 following the decision by the WSIAT to grant entitlement to CPD in the claim. The NEL rating sheet indicates that the Clinical Specialist relied on one report from the worker’s treating psychiatrist dated September 30, 2011 when quantifying the NEL award.
In the report, the psychiatrist indicates the worker, at that time, was 49 years old, was married and had three children. He remained unemployed following his workplace accident of May 2005. The doctor advised that the worker had trouble falling asleep. It was noted that previously he would drink alcohol to assist him with sleeping but recently he had stopped drinking and as such he became irritable, snappy and depressed.
He reportedly had lost interest in things and his ability to enjoy life. He complained of having low energy, trouble concentrating, becoming forgetful and being nervous. While he reported having suicidal thoughts, he stated his family was a deterrent preventing him from carrying out such action.
The psychiatrist stated the worker had anhedonia and a depressed affect with impaired cognitive and executive functions, but no psychotic features. He diagnosed the worker with a Major Depressive Disorder, Anxiety Disorder and Pain Disorder.
When determining the appropriate NEL benefit level for claims in which CPD entitlement has been accepted, the WSIB uses the Mental and Behavioural Disorders Rating Scale as outlined in policy document 18-05-11. For the purposes of this appeal, the two relevant components of the rating schedule are as follows:
Mental and Behavioural Disorders Rating Scale
Class 2, Mild impairment (5-15%) - Impairment levels compatible with most useful function
There is a degree of impairment of complex integrated cerebral functions, but the worker remains able to carry out most activities of daily living as well as before. There is also some loss in personal or social efficacy and the secondary psychogenic aggravations are caused by the emotional impact of the accident.
There is mild to moderate emotional disturbance under ordinary stress. A mild anxiety reaction may be apparent. The display of symptoms indicates a form of restlessness, some degree of subjective uneasiness, and tension caused by anxiety. There are subjective limitations in functioning as a result of the emotional impact of the accident.
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.
When assessing the degree of permanent impairment for CPD claims, a holistic approach is taken to evaluate the impact of the work-related impairment in terms of functional limitations. In order to quantify a CPD NEL benefit, four evaluation criteria are used to assess level of functioning and the impact of the workplace injury. These include; activities of daily living (ADLs), social functioning, concentration persistence and pace, and adaptation to stress.
The NEL rating report summarized some of the above noted findings from the psychiatrist’s report, which were then applied to the four applicable evaluation criteria. In doing so, the NEL clinical specialist concluded that a Class 2 – 15% impairment best described the worker’s condition.
The worker representative provided written submissions on the issue in his letter dated January 23, 2015. He submitted that the NEL rating performed by the clinical specialist was flawed and opined that the worker’s impairment rating should be classified in the high end of the Moderate Impairment category rather than the currently accepted high end of the Mild Impairment category.
Without identifying any additional or specific medical documents from the claim file, the worker representative felt that the worker’s level of functioning in all four evaluation criteria are much worse than currently recognized by the 15 percent NEL impairment. For instance, he submits that the medical reports on file indicate the worker has become very much a homebound individual, yet he does not identify what reports he is referring to.
In reviewing the remainder of the worker’s claim file, I note there are several copies of the worker’s medical chart notes from his family doctor which date back to 2005. Unfortunately, most of the handwritten chart notes are illegible making it extremely difficult to decipher the content of the chart entries. I do note however, that there are no obvious references in the chart notes to the worker being homebound or consumed by severe complaints of chronic, widespread pain.
There are copies of several diagnostic tests on file which document minor degenerative changes in both the lumbar and cervical spines, but nothing significant in terms of organic findings.
In the WSIAT decision on file dated April 3, 2014, the worker testified about the impact the injury has had on his personal life. He talked about the fact that he has anxiety and depression following the accident and that he, “thinks about his injuries often”. He noted that he has been seeing a psychiatrist for about three years and that he takes medication for depression and poor sleep.
He testified that he leads a sedentary lifestyle but made no attempt to suggest he was homebound or room bound because of his injuries. Rather, he stated, “he goes out sometimes for coffee and may walk short distances,” and that, “he may help his wife on occasion by doing the dishes or going shopping with her.” While he advised he cannot drive far, his statement implied he is still able to drive. He also indicated that he spends a lot of time watching TV, which suggests that his cognitive functions and ability to concentrate are not severely impacted.
When I assess all of the available information in the claim file, I find no flaw in the NEL clinical specialist’s determination that the worker is suffering from a 15 percent whole person impairment for his CPD condition.
The documentation from worker’s psychiatrist, in my view, is indicative of someone in the high end of the Mild Impairment rating category of the rating policy used to quantify CPD NEL awards. I find this is supported in large part by the worker’s own testimony at the WSIAT hearing which confirmed that he is still able to do things around the house, is able to drive and still goes out of the house for shopping purposes or to go for a coffee.
While the worker representative has submitted that the medical reporting is indicative of a much higher impairment, I am unable to place much weight on this opinion given that specific medical documents supporting this opinion were not identified or provided.
As such, I see no basis to adjust the worker’s NEL benefit in this claim. The 15 percent NEL award granted for chronic pain disability (CPD) is confirmed.
Conclusion
The worker’s appeal is denied. The 15 percent NEL award granted for chronic pain disability (CPD) is confirmed.
DATED February 11, 2015
Mr. K. Gowans Appeals Resolution Officer Appeals Services Division