WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20180001
OBJECTING PARTY: Worker
REPRESENTED by: Professional Representative
RESPONDENT: Employer (Out of Business)
HEARING: Hearing in Writing
HEARD by: S. Crisostomo, Appeals Resolution Officer
DATE: January 22, 2018
ISSUE
The worker is requesting an increase in his psychotraumatic disability Non-Economic Loss (NEL) quantum and the determination that he did not have a moderate non-measurable pre-existing psychological impairment.
BACKGROUND
Injury History: On October 17, 2006, the worker injured his right shoulder while pulling a cart that was loaded with parts. Entitlement was accepted for the worker’s partial thickness tear in his right rotator cuff. The worker developed depression and entitled was extended to include the worker’s psychotraumatic disability. The Workplace Safety and Insurance Appeals Tribunal decision of December 7, 2016 concluded the worker’s psychotraumatic disability was permanent and he was entitled to a permanent impairment award for his psychotraumatic disability.
Date of NEL Decision: December 30, 2016
Current NEL % and Area of entitlement under review: 7.50% for psychotraumatic disability. The worker’s whole person impairment award for his psychotraumatic disability was reduced by 25% from 10% to 7.50%, based on the determination that he had a non-measurable moderate pre-existing psychological impairment in accordance with Operational Policy 18-05-03.
Worker Representative’s Position
The worker’s representative submits that based on the worker’s activities of daily living, social functioning, mood, and passive suicidal ideation, the worker’s NEL award for his psychotraumatic disability should be rated as a Class 3-Moderate Impairment level. The representative contends that although the worker received medical treatment for psychological issues prior to the accident of October 17, 2006, the worker’s pre-existing psychological condition had little outward effect on the worker’s function as he was capable of maintaining full-time employment as well as engage in a number of activities outside of work. Thus, the worker’s pre-existing psychological condition is of minor medical significance.
AUTHORITY
Operational Policies:
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
18-05-03 Determining the Degree of Permanent Impairment
15-02-03 Pre-existing Conditions
ANALYSIS
I have carefully considered all of the available information and relevant operational policies in reaching this decision.
I find the worker’s whole person psychotraumatic disability impairment is 20% and that there is no reduction in the worker’s impairment award for his minor pre-existing psychological condition. The reasons for my decision follow.
Mental and Behavioural Psychotraumatic Disability NEL Quantum
I find the worker’s whole person psychotraumatic disability impairment is 20%. My reasons for this decision follow.
Policy 18-05-11 provides guidelines to decision makers when assessing permanent impairment awards for workers with a psychotraumatic disability.
There are 5 classes in the rating schedule for psychotraumatic disability, chronic pain disability, and fibromyalgia syndrome. These classes are listed in policy 18-05-11 and are:
- Class 1- No impairment (0%)
- Class 2- Mild impairment (5-15%)
- Class 3- Moderate impairment (20-45%)
- Class 4- Marked impairment (50-90%)
- Class 5- Extreme impairment (95%)
The NEL Clinical Specialist (NCS) determined the worker’s NEL award for his psychological condition was at a 10% NEL level. A 10% NEL award for a psychotraumatic disability relates to the worker meeting the mid-range award in the “Mild Impairment” class under the Mental and Behavioural Disorder Rating Scale.
Characteristics of the “Mild Impairment” class include (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.
Characteristics of the “Moderate Impairment” class include (impairment levels compatible with some but not all useful function):
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 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.
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 my review of the the medical and non-medical information contained in the file prior to the NEL Evaluation of December 30, 2016, I note:
The Function and Pain discharge report of June 9, 2011 indicated:
- The worker was walking at home as part of his part of his weekly activity.
- He was getting approximately 20-30 minutes of solid sleep before waking up due to pain.
- The worker reported completing: daily walks, light cleaning, socializing with friends and family, and attending the local temple.
- He was depressed and had passive suicidal ideation.
Dr. Faber’s Executive Summary report of July 22, 2016 indicated:
- The worker reported significant difficulties getting showered and dressed.
- He reported difficulties with home tasks and has to work very slowly and use his left arm for the majority of tasks.
Dr. Billing’s report of October 4, 2016 indicated:
- The worker was having difficulties doing his activities of daily living including cooking, cleaning and doing laundry.
- The worker was socially withdrawn due to pain and depression.
- He could not concentrate.
- He had a limited ability adapting to stressful circumstances.
In order for the worker’s NEL award to be increased, the evidence on file needs to show the worker is worse than the mid-range of the “Mild Impairment” class. In my review, I note the worker was able to go for walks, attend the local temple and participate in the Function and Pain Program and Work Transition activities. As such, I am satisfied the worker is not homebound due to his psychological disability.
While I note that it was reported that due to the worker’s compensable condition he has had a breakdown of social integration and tends to be socially isolated; he is still able to go for walks and attend appointments.
With respects to concentration, persistence and pace, I find the evidence in the file establishes the worker’s pain impacts his ability to concentrate and prevents him from attaining full uninterrupted sleep.
Based on my review, I find a there is a lack of compelling evidence that establishes the worker has a degree of impairment of complex integrated cerebral functions that limits his daily activities to directed care under confinement at home or in other domiciles. In addition, I find there is a lack of evidence to establish the worker has a moderate to severe emotional disturbance under ordinary to minimal stress, which requires sheltering. There is also a lack of evidence that establishes the worker has features of an ongoing psychomotor retardation and that he requires emotional support within the family setting. I am satisfied the worker does not have a phobic pattern with bizarre behaviour and find no persuasive evidence of uncontrolled outbursts of temper; however, he does have low mood and has a limited ability adapting to stressful circumstances.
I note in assessing permanent impairments due to mental and behavioural disorders, Operational Policy 18-05-11 only provides guidelines in assessing worker’s impairments and is not a checklist. In reviewing the documents in the file and comparing the evidence in the documents with the guidelines in policy 18-05-11, I find the worker has an impairment of moderate severity as I find the worker’s impairment level is compatible with some but not all useful function. As such, I find the worker has a Class 3 “Moderate Impairment”.
Based on my analysis of the worker’s activities of daily living, his social functioning, his concentration, persistence and pace, and his adaptation to stressful circumstances, I find that the worker’s psychotraumatic disability is best categorized at the lowest range of the “Moderate Impairment” class. As such, I find the worker’s NEL award for his psychotraumatic disability is 20%.
Therefore, following careful consideration of the file evidence, I find the worker’s NEL award for his psychotraumatic disability is 20%.
Pre-existing Mental and Behavioural Condition
I find the worker has a minor pre-existing psychological condition and therefore, there is no reduction his NEL award for his psychotraumatic disability. My reasons for this decision follow.
Operational Policy 18-05-03 states in part:
When determining the degree of work-related permanent impairment for workers who have a pre-existing condition or a prior work-related permanent impairment, the decision-maker
- rates the area of the body affected by the work-related permanent impairment
- disregards any pre-existing conditions affecting other areas of the body, and
- factors out pre-existing conditions and prior-work-related permanent impairments affecting the same area of the body.
To factor out a pre-existing condition, it must be established that it is contributing to the degree of impairment to the same area of the body as the work-related permanent impairment.
To establish this, the evidence must show that the pre-existing condition, on its own, would result in an impairment rating. The pre-existing existing condition does not need to have produced periods of impairment or disease requiring health care, or have caused a disruption in employment, in order to factor out its rating from the total impairment rating.
If it is established that a pre-existing condition is contributing to the degree of total impairment to the same area of the body, the decision-maker
- rates the total impairment to the area according to the prescribed rating schedule
- determines the rating for the pre-existing condition according to the prescribed rating schedule, and
- subtracts the rating for the pre-existing condition from the total impairment rating to get the rating for the new work-related impairment.
If the pre-existing condition cannot be rated according to the prescribed rating schedule, the medical significance of the pre-existing condition is determined based on the clinical evidence and the decision-maker reduces the total impairment rating of the area according to the determination.
If the significance of the pre-existing condition is
- minor, there is no reduction
- moderate, there is a 25% reduction
- major, there is a 50% reduction.
Operational Policy 15-02-03 defines a pre-existing condition as any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.
Pre-existing conditions include but are not limited to
- conditions that have produced periods of impairment/disease requiring health care and have caused a disruption in employment prior to the workplace/injury or disease, as defined in 15-02-04, Aggravation Basis
- underlying or asymptomatic conditions which only become manifest post-accident as defined in 14-05-03, Second Injury and Enhancement Fund (SIEF), and
- work-related permanent impairments for which the WSIB has granted a permanent disability (PD) or non-economic loss (NEL) benefit.
I note that Dr. Gilani’s pre-accident clinical notes from October 26, 2004 to September 10, 2006 reveal the worker was on Trazdone for depression and that the worker’s depression was controlled throughout that period. Based the Dr. Gilani’s clinical notes from 2004 to 2006, I am satisfied that the worker was suffering from depression prior to his work-related accident. Therefore, I find the worker’s pre-injury depression is a pre-existing condition as defined in Operational Policy 15-02-03. Noting the extent of time the worker required medication for his depression, I am satisfied that the worker’s pre-accident depression is likely contributing to the degree of his permanent psychotraumatic disability.
Based on the medical information contained in the file, I find the worker’s pre-existing depression is non-measurable as it cannot be rated using the AMA Guides. According to Operational Policy 18-05-03, when a pre-existing impairment is not measurable, the worker’s total area of impairment is reduced by the significance of the pre-existing impairment. In my analysis of the information contained in the record, I find there is a lack of compelling evidence that suggests the worker had any limitations produced by his pre-existing mental illness in his work and/or social integration prior to the work-related injury in October of 2006. In addition, I am satisfied that the medical evidence supports the worker’s depression was well controlled by medication for a prolonged period of time. As such, I find the significance of the worker’s pre-existing depression is minor. Therefore, in accordance with Operational Policy 18-05-03, there is no reduction in the worker’s total whole person psychotraumatic impairment due to his pre-existing psychological impairment.
CONCLUSION
Based on the evidence outlined in this decision, I conclude the worker’s Non-Economic Loss award for his psychotraumatic disability is 20% and that there is no reduction in the worker’s psychotraumatic Non-Economic Loss award for his pre-existing depression.
The worker’s objection is allowed.
DATED January 22, 2018
S. Crisostomo Appeals Resolution Officer Appeals Services Division