Worker v. Employer, 2017 CanLII 39716

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

CLAIM: 20170016

OBJECTING PARTY: Worker

REPRESENTED by: Consultant

RESPONDENT: Employer

(Not participating)

DATE: June 15, 2017

HEARD by: ORAL HEARING

ADDITIONAL ATTENDEES: Interpreter

ISSUES

1. The non-economic loss (NEL) quantum (decision dated August 19, 2014).

2. Recalculation of the earnings rate on the basis the worker was an apprentice at the time of the work injury (decision dated November 29, 2016).

BACKGROUND

On December 1, 2009, the worker, a 42 year old assistant electrician fell 15 feet from a ladder suffering multiple injuries including major head trauma. Entitlement was accepted for a complex basal skull fracture; transverse process fractures of T10, L1, L2, and L3; a cervical spine disc herniation at C3-4 and neck strain; rib fractures; traumatic hearing loss; traumatic brain injury; chronic post-traumatic headaches, altered vision of the left eye; paralysis of the left side of the face and psychotraumatic disability.

The worker participated in treatment and his condition improved, but he did not fully recover. A permanent impairment was accepted with maximum medical recovery reached as of December 24, 2012. On August 19, 2014, the worker received a 40 percent NEL award for musculoskeletal injuries of the cervical, thoracic and lumbar spines; traumatic hearing loss; psychotraumatic disability; and injuries of the occipital and trigeminal nerves.

The worker sought entitlement for sleep apnea and a CPAP machine which he said was due to weight gain following the work injury. The case manager obtained a medical opinion that indicated sleep apnea has many potential causes. On December 23, 2014, the case manager denied entitlement for sleep apnea as he was unable to conclude that weight gain was the sole factor that caused sleep apnea.

The worker received WT assistance from July 6, 2015 to October 21, 2016. The suitable occupation of electronics assembler, National Occupation Code (NOC) 9483 was chosen. A WT plan was developed which included English as a Second Language (ESL) training, work experience services, job search training and employment placement services.

The worker representative requested the WT plan be extended beyond October 21, 2016. On September 29, 2016, the WT specialist (WTS) determined the worker was employable in the SO of electronics assembly and did not require an extension of the WT plan.

The worker began a full time light assembly auto parts position on October 11, 2016, earning $13.25 per hour. On October 27, 2016, the case manager conducted a final loss of earnings benefit review. A partial benefit was determined based on earnings of $13.25 per hour, 40 hours per week, effective October 11, 2016.

On November 28, 2016, the case manager denied the worker’s request for a recalculation of his earnings basis as an apprentice. She found the evidence did not support he was an apprentice at the time of injury.

On December 21, 2016, the serious injuries services case manager advised the worker he was not entitled to an independent living allowance. She explained his case no longer met the criteria for serious injuries services and had been transferred from serious injuries services to the service delivery area in June 2015.

A discussion occurred with the worker representative the day before and prior to the hearing. The worker representative and the worker then spoke with the benefit of the Cantonese interpreter. The issue of entitlement to a CPAP machine and sleep apnea was withdrawn as it had not been identified in the letter from the Appeals Registrar and the worker representative preferred not to proceed on that issue. The worker also withdrew his objection to the denial of an extension of the WT plan and the 72 month lock-in decision based on actual earnings. Lastly, the worker withdrew the issue of entitlement to an independent living allowance.

AUTHORITY

11-01-03 Merits and Justice

12-04-13 Apprentices

18-02-08 Determining Average Earnings - Exceptional Cases

EXHIBITS

1. Workplace Safety and Insurance Appeals Tribunal Decision No. 665/15

2. Branches of the Trigeminal Nerve.

3. The New Zealand Medical Journal article: What does degeneration mean?

ANALYSIS

1. The Earning Basis

The worker representative is requesting the earnings basis be recalculated to reflect that the worker was an apprentice at the time of the work injury. The evidence is clear the worker was not an apprentice, as defined by policy, at the time of injury. The worker representative argued the merits and justice policy would support accepting the worker was an apprentice, even though he did not fulfil the specific requirements of policy. I found the evidence did not support this conclusion. As such, policy 18-02-08 would not support calculating the earnings basis using the earnings of an electrician journeyperson. I will review my reasons for reaching this conclusion.

Policy

Policy 18-02-08 indicates the guidelines for calculating short-term and long-term average earnings are not applicable for those workers classified by the WSIB as dependent contractors, workers with optional insurance, apprentices, learners, students, pupils, volunteer force members, emergency workers, or Ontario Works participants.

In these exceptional cases, the WSIB recognizes the specific requirements of the Workplace Safety and Insurance Act, 1997 (WSIA) and the unique nature of some industries regarding employment relationships and method of payment. In these exceptional cases, the WSIB does not use some of the rules normally followed to determine a worker’s average earnings.

For workers who are apprentices, the decision-maker determines the average earnings by using the average earnings of a journeyman employed by the employer in the same trade as the worker.

If the employer did not employ a journeyman in the same trade as the worker, the worker’s average earnings are determined by using the average earnings of a journeyman employed in the same geographical area as the employer and employed in the same trade as the worker.

Once established, the average earnings remain the same for the life of the claim, with no recalculation.

Policy 12-04-13 indicates that an apprentice is a person registered under the Trades Qualification and Apprenticeship Act or the Apprenticeship and Certification Act, who has signed a contract of apprenticeship for training and instructions in a trade, through or from an employer.

Policy 11-01-03 indicates that the WSIB shall make its decision based upon the merits and justice of a case and is not bound by legal precedent. Every decision made by the WSIB must be based on the merits and justice of the case, which means decision-makers must take into account

• all facts and circumstances relating to the case
• the relevant WSIB policy or policies, and
• the relevant provision or provisions of the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act).

There may be rare cases where the application of a relevant policy would lead to an absurd or unfair result that the WSIB never intended. Therefore, a decision-maker may depart from a policy if it can be shown that the case has exceptional circumstances that justify doing so.

The decision-maker must clearly identify the exceptional circumstances and explain in the decision why the relevant policy is not applicable.

Assessment of the Evidence

The worker representative argued the worker was an apprentice at the time of injury. The fact that he did not have an apprenticeship number or a current Provisional Certificate of Qualification was a technicality. He argued the intent of policy is to appropriately compensate the worker when the established vocational path has been disrupted by a work injury. He provided Workplace Safety and Insurance Act (WSIAT) Decision No. 665/15 in support of this position.

The form 6 completed by the worker indicated he was an electrician assistant. The form 7 by the employer identified the worker as an electrician. The worker was not paid journeyman wages; he was paid well below that. The worker representative noted the worker is referred to as an electrician on the claim record and this supports the worker’s pre-injury vocational path was that of electrician. Whether the worker identified himself as an electrician does not change the fact that he did not have an electrician’s license at the time of injury. What must be determined is whether he was an apprentice.

I agree with the worker representative’s interpretation of policy. The merits and justice policy allows the decision maker to consider whether the facts support the worker would have become an electrician, if not for the work injury. I conclude it would be unjust not to do so because the intent of policy 18-02-08 is to compensate workers who are unable to complete their established career path due to the work injury.

I find the evidence demonstrates the worker hoped to become an electrician. I do not find the evidence is sufficient to establish that the worker was on a clear trajectory toward this goal or that he would have achieved this objective. The facts are as follows:

• The worker is not an apprentice as defined by policy. The worker was not registered as an Apprentice and did not have apprenticeship number.
• There is another path to becoming an electrician. This involves obtaining a Provisional Certificate of Qualification (provisional certificate). The worker representative included the Policy Regarding Provisional Certificates of Qualification (provisional certificate) in his submission of November 1, 2016. The provisional certificate recognizes qualifications and experience equivalent to an Ontario certificate of apprenticeship. A provisional certificate of qualification in the Journeyperson’s Class may be issued to individuals to allow them to practise their compulsory trade for a limited time prior to passing the prescribed examination for the trade and obtaining their certificate of qualification in the Journeypersons Class.
• The worker did not have an active provisional certificate at the time of the work injury.
• The worker testified that applicants must work with a licensed electrician for approximately 9500 hours before they can apply for a provisional certificate.
• The worker was born in July 1967. He said he came to Canada in his early twenties and began doing electrician work a few years after he arrived in Canada (1990’s).
• The worker applied for a provisional certificate in 2008. The worker representative provided copies of letters from three employers that were submitted with the worker’s application for a provisional certificate. These letters review the duties performed by the worker with three successive employers and the total hours he worked. The worker completed 6800 hours from January 1998 to March 2001; 11,440 hours from April 2001 to May 2006; 2800 hours from June 2007 to December 2008. Based on this, I conclude the worker achieved the required hours to pursue an apprenticeship by the early 2000’s.
• The worker continued to work as an assistant long after he had enough hours to qualify for a provisional certificate. He worked as an assistant for more than 20 years. Apprenticeships are normally a few years long, not 20 years long. This is evidence against concluding the worker had an established vocational path that involved becoming a licensed electrician.
• The worker attended a pre-exam course to prepare for the exam from September 28, 2008 to December 22, 2008. He testified he attended from Wednesdays from 7 pm to 10 pm and Saturdays from 10 am to 1 pm. He purchased material including an assessment tool and a book to prepare for the exam.
• He was issued a provisional certificate on December 31, 2008 that expired March 30, 2009. The worker attempted the trade examination on February 23, 2009 and received a mark of 36 percent. The passing mark is 70 percent.
• The worker was issued a second provisional certificate on February 19, 2009 that expired on May 20, 2009. He attempted the test again on May 20, 2009. He received a mark of 47 percent.
• The worker testified he believed he failed both tests because his English skills are poor and he did not know he could bring an interpreter. He found this out later.
• The worker did not obtain another provisional certificate after May 2009. He said that summer is busy and he did not have time to write the exam. He intended to write the exam at Christmas because he knew he would be off work for two weeks.
• He testified that he was a non-licensed electrician followed by a licensed electrician. He had a good relationship with the injury employer. His injury employer knew he was studying for the exam. He was asked if the injury employer taught him. He said that some things he already knew. His employer would tell him what needed to be done and then ask him if he knew how to do it. The worker said if he did not know how to do the task, the employer would explain it.
• The worker testified he was studying for the exam at the time he got hurt. He bought a CD that included a lot of exam questions. He believes he would have passed the exam.
• The worker testified that he wanted to be an electrician because the pay is really good (much more than he was earning). He said he was doing almost the same work as a licensed electrician, but he did not have a license.
• He said he loved the work. He testified this trade is suitable for him because he enjoys being quiet and thinking when he works. He likes doing calculations. He had not considered any other kind of work.
• Page 27 of Dr. F.’s report of November 12, 2012 indicates the worker said he could only make three attempts at the licensing examination. The worker said this was not correct. He said that a provisional certificate is granted for three months. If the applicant does not pass during the three month period, he can apply for another provisional certificate with the same documents. Provisional certificates can be issued four times in one year. If the exam is not passed within one year, the applicant has to get new letters, new T4’s, and start the process again. Exams can be taken any weekday morning or afternoon.

I understand why the worker did not reapply for the certificate in the summer, but he did not initiate this process in the fall either. The injury occurred on December 1, 2009.

I find the worker has not demonstrated a concerted effort to get his journeyperson qualification, in that he remained in the job of an electrician assistant for 20 years, long after he had the required hours to apply for a provisional certificate. Although, the worker said he intended to take the examination again, there is no objective evidence to support this. He did not renew his provisional certificate between May 2009 and December 2009.

Even if I accept the worker intended to do get his provisional certificate over the Christmas holidays and write the exam again, the question then becomes, does the evidence support that he likely would have passed the exam. I find the evidence is insufficient to answer this question.

Formal apprenticeship programs include classroom study and on the job training. Certain benchmarks must be achieved to qualify for apprenticeship programs and the standard can be quite high. Electricians are highly skilled tradesman. The Electrical Contractors Association of Ontario website indicates that under the Trades Qualification and Apprenticeship Act, the minimum education required is a completed grade 10. However, in the unionized sector of the electrical industry most programs require grade 12 with Math, English and Physics.

The worker failed his first two attempts at the exam, which may mean he had not developed the necessary skills during his 20 years as an electrician assistant and/ or that he did not have the necessary math or other skills taught in the regular apprenticeship program. The worker improved his mark on the second exam, but he remained far below a passing mark. The worker relates his failure in his first two attempts to pass the qualification exam to his level of English proficiency. This may be true, but it may also be that he did not have the required knowledge to pass the examination. I have no way of assessing whether the worker had the skills to pass the exam, even with an interpreter present.

I am unable to conclude the worker was on a clear path to becoming an electrician. I considered that he was an assistant electrician for twenty years and he did not pass the exam on two occasions. I conclude he wanted to get his journeyperson license, but it is not clear he would have pursued this and/ or achieved this. For this reason, with the available information, I do not find the merits and justice of the case would support accepting the worker was an apprentice at the time of injury. Therefore, I conclude his earning basis was accurately determined using his actual earnings.

2. The NEL Rating for the Psychological Impairment

The worker had a very serious injury that caused damage to multiple parts of his body. He developed depression in response to the work injury.

The NEL clinical specialist concluded the worker had a mid-range mild impairment. The worker representative argued the rating for the psychological impairment did not accurately reflect the worker’s true level of functioning. He argued the evidence on the claim and the worker’s testimony support that he has impairment at the upper end of moderate impairment. He found the NEL rating identified the worker’s abilities more than his limitations and did not properly weigh the worker’s overall function. I considered the evidence carefully. I conclude the worker has a mild impairment at the upper end of this class of impairment. I will review my reasons for reaching this conclusion.

Policy

Policy 18-05-11 sets guidelines by which to rate psychological impairment. The AMA guides direct the decision maker to consider the impact of the psychological impairment on the worker’s activities of daily living; social functioning; concentration, persistence and pace; and adaptation to stress.

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 roombound at frequent intervals.

Formal Testing

The worker was admitted to neurology services at Toronto Rehabilitation Institute (TRI) three times to assess the neurological damage caused by his work injury. He participated in two neuropsychological assessments at TRI by Dr. S.. This included an interview, review of the medical documentation on the claim and standardized testing. The first assessment took place in August 2010. The second assessment took place in November 2012 and is outlined in the report dated December 24, 2012. Maximum medical recovery was established with this report.

The worker also saw Dr. F., psychiatrist during his admission to TRI. His report is dated November 12, 2012. Both Drs. provide detailed reviews of the medical documents in the claim and these documents can be referenced directly for a review of the relevant medical evidence. The NEL Triage report is 13 pages long and also provides a good summary of the medical evidence.

In August 2010, the OT identified that the worker had memory deficits. This contrasts with the neuropsychological assessment done in August 2010. The worker’s performance on intellectual, mnestic (memory) and academic functioning tests was average and above average and evinced no significant neuropsychological impairment. In 2012, Dr. S. did not identify any significant neuropsychological deficit or deterioration compared to his previous level of functioning in 2010.

Dr. F. also noted the worker performed well on formal tests of cognition and did not demonstrate any significant problems with concentration or memory.

On the second neuropsychological assessment, the worker’s responses to emotional, personality tests were completely non-credible. His presentation was less hopeful, and he reported feeling anxious and depressed. His approach to testing prevented an accurate assessment of his current emotional functioning.

The worker performed poorly on language related abilities and this was attributed to English being his second language. He had average attention.

The first neuropsychological assessment identified the worker’s motor strength was severely impaired bilaterally and the right hand failed to demonstrate the expected superiority in the dominant hand across all measures. The worker tested at the borderline level bilaterally in November 2012. Motor speed was severely impaired bilaterally. Manual dexterity was average. The report did not suggest the worker’s impaired motor strength and speed were due to the work injury. In the absence of a work related etiology identified for this result, I do not relate it to the work injury.

Inconsistencies

I noted the following inconsistencies in the medical reporting:

• Page 19 of Dr. S.’s December 24, 2012 report noted the worker’s score on specific testing of emotional functioning was in a range that is specific to malingering (i.e. explanations other than exaggeration are empirically implausible). His scores on scales measuring exaggerated psychiatric disturbance were also extremely elevated.
• Page 20 of Dr. S.’s December 24, 2012 report identified that the worker endorsed a very high number of absurd and infrequently endorsed symptoms on measures of pain and pain-related disability.
• Dr. F. noted an inconsistency in the worker’s self-report around fear of heights (page 4 of the November 12, 2012 report).
• Page 18 of Dr. S.s December 24, 2012 report indicated the worker performed in the severely impaired range on receptive language on the second neuropsychological test and this represented a sharp decline from the first test. He explained this result is not explained by the injury.
• The worker sought entitlement to sleep apnea because of weight gain, but I did not find the evidence established that he was significantly overweight when he was diagnosed with sleep apnea. Dr. S., psychiatrist, said the worker gained weight because of the psychiatric medication he was taking. I reviewed the psychiatric medication taken by the worker. Only Resperidone is associated with weight gain. This was first prescribed by Dr. M., psychiatrist on March 2, 2011, three months prior to the sleep apnea assessment. The worker was not significantly overweight when he was diagnosed with sleep apnea on May 31, 2011. His weight was 77 kg (169 pounds). His height is 171 cm. Therefore, his body mass index was 26.3 which places him in the overweight category (needing to lose somewhere between 4 to 23 pounds).

The Worker’s Function

The January 4, 2011 report by the occupational therapist indicated the worker was independent with respect to personal care, meal preparation, care giving, banking and housekeeping duties. He was the primary care giver of his children. At that time, he was avoiding driving, but he has since returned to driving. He testified that his ex-wife helped him to remember to pay bills and to keep appointments. His children order his medication for him because of his language barrier. They also help him with his laundry because he forgets to turn on the machine. He said he chooses to microwave his food, because he is forgetful around the stove.

In December 2011, he told Dr. K. that he spent most of his days watching television, surfing the internet and talking to friends.

He testified that he used to joke around prior to the injury. He said he was happy before the injury. He told Dr. F. that his main mood was one of being unhappy. He said he remained forgetful. He would forget to turn off the tap or turn off the stove.

The worker told Dr. F. he was seldom able to see friends since he moved to Aurora. He said he talked to them on the phone. He said he and his ex-wife were now friends. He could enjoy time spent with her. He enjoyed time spent with his sons. He did not enjoy television as most shows are reruns. He did not have any significant hope for the future. He had problems sleeping due to left sided tinnitus, headache and low back pain (as well as sleep apnea). He reported decreased appetite. He said he enjoyed the food he did eat. He said he enjoyed sweets. He said his weight had increased by 50 pounds, but had stabilized. The worker may have lost weight since 2012, because he did not appear overweight at the hearing.

The worker told Dr. F. that he did not have a girlfriend and had decreased sexual interest. He said he enjoyed going for walks during better weather days. The worker testified that he stopped going out for walks after the injury. I found this inconsistent.

Dr. F.’s report identified that the worker had some passive suicidal ideation. He denied significant problems with irritability. He reported finding it difficult to tolerate noisy environments and had feelings of agitation and frustration in these situations. He denied yelling, swearing, hitting anyone, throwing objects or having homicidal ideation. He denied symptoms of panic attacks, nightmares or flashbacks. He reported a fear of heights since the accident (identified by Dr. F. as inconsistent with previous self-reports).

The worker testified he used to go out two or three times a month, but now he does not. He said he did not want to see people because he is afraid they will ask about the injury. He said he rarely goes out except to buy things. He also said his English is worse compared to before the accident.

He said his relationship with his children is altered. They take care of him instead of him taking care of them. His children are 16 and 17. I did not find his testimony convincing on this point. It is inconsistent with the information given to the OT in 2011 that he was the primary caregiver of his children. Also, all the medical reports indicate he enjoys his relationship with his children.

The medical reporting is confusing with respect to the worker’s pre-injury marital status. The worker testified that he and his ex-wife were separated and living apart prior to the work injury. He said he lived on his own for four or five years prior to the work injury. After the injury, he moved back with his ex-wife because he could not take care of himself. He lived in the basement. She recently asked him to move out now that the children are older. He will be moving and renting a room in June or July 2017.

The worker has continued to work as a light assembler. He was asked if he enjoyed socializing at work during lunch and he said he did not.

Assessment of the Evidence

In examining the NEL award, I am guided by policy and the medical evidence at the time the worker reached maximum medical recovery. I conclude the worker’s overall impairment is compatible with most useful function. Therefore, I conclude the worker has a mild impairment. However, I also conclude that the award should be increased to 15 percent to reflect impairment at the upper level of mild impairment.

Where the worker’s testimony was not consistent with the information on the claim, I accepted the contemporaneous evidence on the file over the worker’s testimony. Generally, contemporaneous information is more accurate. Also, in this claim, there are many detailed reports with similar findings and conclusions. Lastly, the neuropsychological testing identified the worker’s self-report on emotional testing is non-credible.

The worker reports impaired memory, but formal testing does not identify any memory deficits. I accept the worker may be absent-minded at times, but formal testing does not demonstrate any memory deficits. I conclude the worker could develop strategies to help him stay on task, such as making lists and notes for himself.

I find the evidence establishes the worker has low mood, noise intolerance and sleep disturbance. The worker has consistently reported noise intolerance that causes agitation and frustration. The worker has consistently reported low mood and sleep disturbance. Dr. Farewell diagnosed major depressive disorder, chronic partial remission; cannot rule out fear of ladders. He identified psychosocial stressors as workplace injury, relative social isolation and concern about occupational future.

I carefully considered the medical evidence against the four areas of function identified in the AMA guides. I conclude the worker has relatively mild impairment of his activities of daily living other than sleep disturbance; mild to moderate impairment of his social functioning mitigated by his rewarding relationship with his children; mild impairment of concentration, persistence and pace related to forgetfulness; and a mild to moderate impairment of adaptation to stress as evidenced by low mood and noise intolerance.

I am unable to conclude the worker falls into the moderately impaired class as argued by the worker representative. I do not find the evidence establishes that the worker’s complex integrated cerebral functions are impaired such that his daily activities require some supervision and/ or direction. In particular, I am not persuaded that he has any true memory deficits that would require supervision. I am unable to conclude that his emotional functioning is moderately impaired because formal testing identified that the worker exaggerated his impairment.

I am persuaded that the NEL award should be increased to 15 percent as this recognizes that the worker is more impaired in some areas of function with persisting symptoms of low mood, sleep disturbance and noise intolerance.

3. The NEL Rating for Tinnitus

I conclude the worker was appropriately rated for tinnitus. I will review my rationale.

Page 110 of the AMA guides indicates that tinnitus in the presence of unilateral hearing loss is rated from 3 to 5 percent because it may impair speech discrimination.

The worker received a rating of three percent. The worker representative argued that it should be increased because the worker had difficulty in crowds and he testified the tinnitus was louder than the representative’s voice and it interfered with his sleeping.

The worker testified that he did not like to be in crowds because all the noise is heard in his right ear and it makes him uncomfortable.

The Case Conference Summary/Progress Report dated May 2, 2011 and the Speech Language Pathology Report dated June 2, 2011 noted the worker appeared to be quite affected by background noise. He worked on speaking in English with distractions (a radio in the background).

The October 31, 2012 report by Dr. F. indicated the worker had left ear tinnitus that was improving with a hearing aid. He reported that when he wore his hearing aid, he did not have tinnitus. In November 2012, the worker told Dr. F., he had constant left sided tinnitus and decreased hearing in the left ear. Tinnitus, headache and back pain made it hard to fall asleep.

The worker did not appear to have any difficulty understanding the interpreter during the hearing. He did not request that any of the questions be repeated. There was a constant low hum in the hearing room from the radiator.

I conclude the worker had significant trouble initially with speaking when there was background noise. I am not persuaded this has persisted. There is no further mention of it after June 2011. Also, his tinnitus is not noticeable when he wears a hearing aid. I conclude the three percent award for tinnitus is appropriate.

4. The NEL Rating for Trigeminal Nerve Damage

I conclude the NEL rating for trigeminal nerve damage should be increased to seven percent. I will review my reasons for reaching this conclusion.

The worker representative argued the worker should receive a mid-range rating for trigeminal nerve damage as he has numbness in all three branches of this nerve. He provided exhibit two which is a diagram of the areas of the face innervated by this nerve.

Table 2 on page 111 of the AMA guides indicates that complete unilateral sensory loss is rated at 3 to 10 percent. Page 109 of the AMA guides indicates the trigeminal nerve is a mixed nerve with sensory fibres to the face, cornea, anterior scalp, nasal and oral cavities, tongue, and supratentorial dura mater; and with motor fibres to the muscles of mastication. It was noted that loss of sensation on one side results in some dysfunction that should be rated at 3 to 10 percent.

On September 30, 2010, TRI identified the worker had post traumatic left trigeminal neuropathy and left facial neuropathy second to a basal skull fracture with residual muscle spasm.

The neurological consultation by Dr. S. dated January 18, 2012 noted the worker had left face numbness. There was a triangular area of numbness on the left side of his face under his eye with the vertex pointing down; this was lateral to his nose and extended down to above his lip. It felt constantly numb and felt different from the rest of the left side of his face and head. He also feels tightness and pulling on the left side of his face.

Dr. S. noted the worker’s left facial weakness had improved. He was able to close his eyes well. He still had some tearing from the left eye in cold weather. He said he had less drooling. The worker said the visible twitch he had in 2010 was improved. The worker said the groove on the left side of his nose and mouth was different than on the right.

Dr. S. noted the left facial neuropathy had almost completely resolved. I did not notice any obvious left facial weakness/ dysfunction during the hearing.

Dr. S. noted the worker still had post traumatic left face and head pain, chronic. He said that at least some of this pain was related to left trigeminal neuropathy and neuropathies of the left upper cervical roots. The worker reported ongoing headaches to Dr. F. in November 2012.

The worker has some left sided facial numbness, and other abnormal sensations like tightness and pulling. His left eye is more sensitive to the cold. He reports some minimal twitching. He also has headaches at least partially related to left trigeminal neuropathy. I conclude the NEL award should be increased to seven percent to reflect the abnormal sensation and the headaches experienced by the worker.

5. The NEL Rating for the Cervical Strain

I conclude the NEL rating for the cervical strain was calculated in keeping with the practises set out by the Permanent Impairment Program. Therefore, I am confirming this rating.

The worker testified to ongoing right sided neck pain and tightness. This is consistent with the medical reporting from the WSIB Back and Neck Specialty Clinic (specialty clinic) in 2012.

The MRI of August 10, 2016 showed degenerative disc changes involving the cervical spine, especially at the C4-5 level where there was moderate cervical canal narrowing with compression of the spinal cord. There were no signs of myelomalacia.

The worker received a NEL rating that reflected loss of motion and degenerative changes in his spine. The rating was then offset for the measurable changes in the cervical spine as they were degenerative in nature and therefore, pre-existing.

The worker representative argued the evidence does not establish the worker had a pre-existing impairment of the cervical spine. Therefore, the NEL award should not have been reduced for the pre-existing degenerative changes.

Policy 18-05-05 indicates that when calculating NEL benefits for workers who have a pre-existing permanent impairment, the WSIB factors out the pre-existing permanent impairment affecting the same area of the body.

The pre-existing degenerative changes in the worker’s spine were identified as a pre-existing impairment by the NEL clinical specialist. The NEL rating for the cervical strain was calculated in keeping with the practises set out by the Permanent Impairment Program. I am confirming the award as it was calculated in keeping practises set out by the Permanent Impairment Program.

CONCLUSION

1. The worker was not an apprentice at the time of the work injury. The worker is not entitled to an earnings basis recalculation.

2. The NEL award is to be recalculated to reflect a 15 percent rating for the psychotraumatic disability and a 7 percent rating for left trigeminal nerve neuropathy.

3. The NEL ratings for tinnitus and the cervical strain are confirmed.

The worker’s objection is allowed, in part.

DATED June 15, 2017

J. Cantwell

Appeals Resolution Officer

Appeals Services Division