WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180022
OBJECTING PARTY: Worker
REPRESENTED by: Paralegal
RESPONDENT: Employer (Not participating)
HEARING: Hearing in Writing
HEARD by: K. MacMillan, Appeals Resolution Officer
DATED: May 10, 2018
ISSUE
The worker is objecting to the Case Manager’s August 29, 2017 decision that maximum medical recovery (MMR) for a head injury was achieved as of May 21, 2014 with no permanent impairment.
BACKGROUND
On July 24, 2013, this then-51 year old site supervisor fell approximately six feet striking his head on a steel bar and rotated 180 degrees as he was falling. The worker landed on concrete onto his head and right shoulder. The worker returned to modified duties the following day. Operations granted entitlement to a back contusion, cervical and right shoulder strains, and right shoulder subacromial impingement. A decision letter dated November 30, 2015 awarded a 24% non-economic loss (NEL) benefit for the neck and right shoulder.
A Case Manager’s decision letter dated August 19, 2016 denied entitlement to a recurrence including lost time from August 2, 2016. A Case Manager granted initial entitlement for a head concussion and mild traumatic brain injury in the decision letter dated August 29, 2017. While, the August 29, 2017 decision denied entitlement to a permanent impairment, the Case Manager indicated that the claim will be reviewed for ongoing recovery issues and a reconsideration of the recurrence decision dated August 19, 2016.
The worker representative responded that there can be no recurrence if there is no recognized permanent impairment. The Case Manager clarified in a letter dated September 13, 2017 that the worker representative should disregard part of the decision letter indicating that the claim will be reviewed for ongoing recovery issues and reconsideration of the August 19, 2016 decision letter.
The administrative decision of March 13, 2018 determined that the required criteria for an oral hearing were not met. The issue is now before me as a hearing in writing.
AUTHORITY
Workplace Safety and Insurance Act, 1997 Sections 35(1) and (2)
The following Operational Policies apply:
11-01-05 Determining Permanent Impairment
17-04-03 WSIB-Requested Health Examinations
22-01-03 Workers' Co-operation Obligations
ANALYSIS
I find that the worker is to be offered the opportunity to attend a Workplace Safety and Insurance Board (WSIB)-arranged multidisciplinary traumatic brain injury assessment at a WSIB Specialty Clinic. My reasons for this finding are outlined below.
Has maximum medical recovery been reached?
I am not persuaded that there is currently sufficient evidence to confirm if MMR has been achieved in relation to the work-related head injury. Policy 11-01-05 defines the term ‘MMR’ as a plateau in recovery at which point it is unlikely that there will be any further significant improvement in the work-related injury. The worker representative argues that the head injury is permanent and ongoing.
I acknowledge that the WSIB Neurology Specialty Clinic’s executive team discharge report dated May 21, 2014 provides the opinion that there was no neuropsychological rationale for the worker not being able to return to all activities of daily living, including competitive employment at full hours and duties, as well as driving. I am aware that the date of this report was determined by Operations to represent MMR for the work-related head injury.
On the other hand, I observe that a physiatrist’s report dated May 29, 2014 indicates improving short-term memory loss. The physiatrist states in a report dated March 24, 2016 that the patient has been known for more than 20 years. The report suggests that post-accident personality changes were noted. A neurological report dated April 5, 2016 outlines that the worker was referred to the Acquired Brain Injury (ABI) program. The resulting report from the ABI program dated September 12, 2016 documents ongoing cognitive, physical and emotional difficulties.
A physician case file review was conducted on September 24, 2016 for the issues of ongoing impairment and the ABI treatment recommendations. The resulting opinion outlines that the symptoms appear to have resolved within one year post-accident but more recently have returned in intensity and functional impact. The physician case file review noted that such a development was unusual and required further evaluation.
I have also considered that the reviewing physician recommended an urgent, expedited referral for a multidisciplinary traumatic brain injury assessment at a WSIB Speciality Clinic. Further physician case file review was strongly recommended upon completion of the suggested assessment to further assess the issue of compatibility given the unusual presentation of symptoms.
In reviewing the evidence, I must consider that Policy 11-01-05 provides the authority to obtain a clinical opinion to assist in determining if MMR has been reached. Policy 11-01-05 also directs decision-makers to consider if recent clinical evidence indicates any change in the work-related injury. As outlined above, there is a medical report dated eight days after May 21, 2014 indicating ongoing symptoms. Therefore, I find that a multidisciplinary traumatic brain injury assessment at a WSIB Specialty Clinic and a subsequent physician case file review is required in order to determine the appropriate MMR date and if there is an ongoing work-related head impairment.
Requirement to attend further a Specialty Clinic assessment
It is my opinion that the worker is required to attend a WSIB-requested health examination in order to determine potential ongoing entitlement, including the determination of potential entitlement to a permanent impairment.
I recognize that Operations facilitated a referral to the WSIB Neurology Speciality Clinic following the September 24, 2016 physician case file review. However, there is also general agreement that the worker cancelled the resulting appointment set for December 14, 2016. Correspondence from the worker representative dated December 12, 2016, January 5, 2017 and June 12, 2017 indicate that the worker will not participate in WSIB-directed examinations.
I have reviewed the worker’s rationale as provided by the worker representative. Additionally, I acknowledge that the worker sought out his own rehabilitation. Nevertheless, Section 35(1) of the Workplace Safety and Insurance Act confirms that a worker claiming benefits shall submit to a health examination by a health professional selected and paid for by the WSIB. Section 35(2) states that benefits may be suspended should the worker fail to comply.
Similarly, Policy 17-04-03 states the WSIB may determine that an examination is needed and may arrange one if it will help clarify the nature of the injury and work-relatedness. Policy 22-01-03 also confirms that the worker is required to undergo an examination by a health professional selected and paid for by the WSIB. Policy indicates that possible reasonable causes for not attending such an examination may include extreme weather, death in the immediate family, or serious illness. In my view, none of the reasonable causes listed within policy are applicable to this case.
For all of these reasons, I find that the worker should be provided one further opportunity to participate in a WSIB-arranged multidisciplinary traumatic brain injury assessment at a WSIB Speciality Clinic. Operations may consider any possible travel concerns raised by the worker prior to determining the most appropriate travel method. Provided that the worker cooperates in such an assessment, Operations is then requested to obtain an updated clinical opinion (physician file review) prior to determining MMR, possible ongoing entitlement, and if there is a work-related permanent head/mild traumatic brain injury impairment.
I further find that the issue of ongoing entitlement to a work-related head injury, including the request for a permanent impairment determination, cannot proceed until the worker co-operates by participating in a WSIB-arranged multidisciplinary traumatic brain injury assessment at a WSIB Specialty Clinic as recommended within the physician file review of September 24, 2016. I observe that Policy 17-04-03 provides the authority for the reduction or suspension of benefits for as long as the worker fails to comply without reasonable cause.
CONCLUSION
I conclude that the worker is to be offered one further opportunity to co-operate in a WSIB-arranged multidisciplinary traumatic brain injury assessment at a WSIB Specialty Clinic.
Once the resulting report is available, Operations is requested to make a referral for a physician case file review to assist in determining the appropriate maximum medical recovery (MMR) date, clarify any potential ongoing work-related entitlement, and determine if a work-related permanent impairment is evident.
The worker’s request for further entitlement, including possible entitlement to a permanent impairment for the work-related head injury, cannot be determined without the worker co-operating in the above WSIB-arranged examination.
The worker’s objection is allowed in part.
DATED May 10, 2018
K. MacMillan
Appeals Resolution Officer
Appeals Services Division