Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20190091 Objecting Party: Worker Represented by: Worker Representative Respondent: Employer (not participating) Hearing: Hearing in Writing Heard by: K. MacMillan, Appeals Resolution Officer Dated: May 7, 2019
ISSUE
The worker is objecting to the non-economic loss (NEL) Clinical Specialist’s May 22, 2018 decision to award a 30% rating for the permanent chronic pain disability (CPD) impairment.
BACKGROUND
Injury History
In 2002, this then 40 year old production machine operator began to experience a gradual onset of pain and discomfort in both of her wrists and hands. Operations granted entitlement to bilateral carpal tunnel syndrome (CTS) using an injury date of November 25, 2002. Operations subsequently authorized a 14% NEL benefit for bilateral CTS.
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision of January 4, 2018 provides a concise history which will not be repeated. WSIAT granted initial entitlement to CPD and directed the Workplace Safety and Insurance Board (WSIB) to assess the worker for a NEL benefit which would replace and supersede the 14% NEL benefit. An Operations’ decision letter dated January 11, 2018 determined that maximum medical recovery was achieved on March 14, 2005.
Date of NEL Decision: May 22, 2018 (reconsideration of February 28, 2018 decision)
Current NEL % and Area of entitlement under review:
The NEL Clinical Specialist’s February 28, 2018 decision letter initially determined that a 15% rating was in order (Class 2, mild impairment). Upon reconsideration, the NEL Clinical Specialist increased the quantum of the CPD NEL benefit to 30% (Class 3, moderate impairment) in the decision letter dated May 22, 2018.
There are no other NEL benefits. The quantum of the 30% NEL benefit for CPD is now before me as a hearing in writing.
AUTHORITY
The following Operational Policy applies:
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd. edition revised, (AMA Guides).
ANALYSIS
I find that a 30% rating for CPD is in order. My reasons for this finding are outlined below. I have considered all of the available information, legislation and relevant operational policies in reaching this decision.
The psychiatric report of March 14, 2015 provides a diagnosis of major depressive disorder of severe intensity without any psychotic symptoms, and chronic pain. Notwithstanding, I observe that the AMA Guides states that the diagnosis is not the sole criterion for assessing mental impairments (page 235). The AMA Guides (page 237) outlines four areas of functional limitation which are to be considered when rating mental impairments as follows:
- Activities of daily living;
- Social functioning;
- Concentration, persistence and pace; and,
- Adaptation to stressful situations.
Table 1 (AMA Guides, page 241) lists these four areas of function in association with five classes of impairment ranging from no impairment (Class 1) to extreme impairment (Class 5). However, the AMA Guides does not outline specific rating ranges for any of the five classes.
Nevertheless, Policy 18-05-11 provides rating ranges for mental and behavioural disorders for the same definitions of Classes 1 to 5. Therefore, I will now review the clinical evidence to determine the appropriate rating under Policy 18-05-11 with respect to the four areas of function provided within the AMA Guides.
What is the appropriate impairment class?
I find that Class 3 is the appropriate impairment class. The worker representative’s written submission of February 4, 2019 suggests that the worker’s level of impairment shoulder be rated as falling within the marked range of impairment (Class 4, marked impairment). The worker representative’s earlier submission dated May 8, 2018 argues that the worker has some symptoms in the mid-range of Class 3, some at the high-end of Class 3, and some others which fall in the low-end of Class 4.
Policy 18-05-11 defines Class 3 as ‘moderate impairment’ that is compatible with some but not all useful functions. Policy 18-05-11 confirms that Class 3 (moderate impairment, 20-45%) involves a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction.
Class 4 (marked impairment, 50-90%) represents impairment levels that significantly impede useful function. I note that a Class 4 impairment requires an individual to be incapable of self-care and to neglect personal hygiene. There must also be a degree of impairment of complex integrated cerebral functions that limits daily activities to directed care under confinement at home or in other domiciles. In contrast, a Class 3 impairment is applicable if the worker is still capable of looking after personal needs in the home environment even while becoming more dependent on family members in all activities.
I have paid particular attention to the psychiatrist’s January 24, 2019 report in which the clinical opinion is provided that a marked impairment rating of 50-90% is applicable. The worker representative presents the view that the psychiatrist’s opinion should be preferred over that of the NEL Clinical Specialist. The worker representative notes that the January 24, 2019 clinical opinion is based on the psychiatrist’s own reports after having the opportunity to review the rating scale.
While I appreciate the worker representative’s argument, I find that the determination of a NEL rating is an adjudicative function. For example, the AMA Guides (page 6) confirms that the process of comparing the results of the assessment and analysis with the required criteria is distinct from the clinical evaluation and need not be performed by the evaluating physician. Instead, the AMA Guides outlines that “any knowledgeable” person can compare the clinical findings with the criteria and determine whether or not the findings reflect those criteria. Therefore, I will now compare the clinical evidence with the required rating criteria with respect to the four categories provided within the AMA Guides.
Activities of daily living
I acknowledge WSIAT’s finding of fact that the worker has not felt capable of even looking for work since 2013 and requires assistance with many activities around the home. Upon questioning regarding her typical day, the worker informed WSIAT that she continues to do the cooking for her husband and son but finds that her pain increases with repetitive activities such as cutting vegetables. The worker also testified to WSIAT that it is difficult for her to sort clothing or pull on her own clothing.
The psychiatric report of October 18, 2012 confirms that the worker has difficulties doing her chores and working around the house. The report indicates that the worker needs to sit down and rest every time after she does minimal physical work.
Similarly, a physician’s report dated October 24, 2012 indicates that the worker experiences constant pain while doing the cooking, washing dishes, or washing laundry by hand. It is outlined that the worker is unable to do any vacuuming and is unable to write secondary to pain. As a result, the worker feels that she is “useless”. The psychiatrist’s January 24, 2019 report confirms that the worker requires continuous emotional support from her family, including her husband and son.
Based on this evidence, I am not persuaded that a marked impairment rating is in order as Class 4 requires the worker to be incapable of self-care and to neglect personal hygiene. As discussed above, Class 4 requires daily activities to be limited to directed care under confinement. It is my view that the worker is capable of looking after her personal needs but has become more dependent on family members. I also accept that the worker requires some level of supervision in order to complete daily activities as the psychiatrist’s January 24, 2019 report indicates that she has “marked difficulties” in performing them. Thus, I find that a Class 3 impairment rating is in order with respect to activities of daily living.
Social functioning
There is general agreement that the worker is socially isolated and presents with psychomotor retardation. However, WSIAT cites the March 14, 2015 psychiatric report’s indication that the worker’s spouse is very supportive. The WSIAT decision dated January 4, 2018 also documents that the worker’s husband accompanies her whenever they go out of the home.
I also note that the psychiatric report of October 18, 2012 indicates that the worker’s marriage is good although the worker feels guilty and perceives herself to be a burden on her family. I observe that the worker testified to WSIAT that her husband and son continued to be very supportive of her condition although she has lost interest in going outside and no longer has a social life.
In my opinion, there is insufficient evidence of the withdrawal from family or definite deterioration in family adjustment required for a Class 4 rating. Therefore, I find that the worker’s social functioning most closely matches the Class 3 criteria of signs of emotional withdrawal and definite limitations in social and personal adjustment within the family.
Concentration, persistence and pace
I acknowledge that the psychiatric reports dated October 18, 2012, March 14, 2015 and January 24, 2019 outline symptoms including marked fatigue, concentration and memory difficulties, low mood, irritability, problems sleeping, and obvious psychomotor retardation. I note that the March 14, 2015 psychiatric report confirms there are no psychotic symptoms.
The WSIAT decision of January 4, 2018 confirms that the worker only drives short distances. The worker testified that she wakes up feeling tired and does not feel like doing anything. The WSIAT decision outlines that the worker prefers to watch television or look at a computer.
Policy 18-05-11 outlines that a Class 4 impairment involves a worker being unable to concentrate. Within Class 4 there may be an obvious loss of interest in the environment with the worker becoming extremely irritable and having uncontrolled outbursts of temper.
In my opinion, the worker’s ability to drive short distances and watch television or look at a computer does not meet the above-noted criteria found within Class 4. By comparison, Class 3 provides for insomnia, chronic fatigue, mild psychomotor retardation and a clear indication of psychological regression. Accordingly, I find that Class 3 is the appropriate impairment category with respect to concentration, persistence and pace.
Adaptation to stressful situations
I am not persuaded that a Class 4 impairment applies to the worker’s adaptation to stressful situations.
Policy 18-05-11 outlines that within Class 4 there is a moderate to severe emotional disturbance under ordinary to minimal stress which requires sheltering. There may be outstanding features of psychomotor retardation and psychological regression.
The psychiatrist’s January 24, 2019 report confirms that the worker’s cognitive abilities are affected as are her ability to cope with stress. Again, I recognize that the worker requires continuous emotional support from her family. Even so, I find that there is insufficient evidence of the requirement of sheltering due to ordinary to minimal stress. The psychiatric report of October 18, 2012 documents the worker’s description of her mood as demoralized and unhappy but also notes that there is no suicidal ideation.
Policy 18-05-11 states that there is mild to moderate emotional disturbance under stress within a Class 3 impairment. In my opinion, the clinical evidence supports a moderate emotional disturbance. I additionally find that the evidence supports the Class 3 criterion of the worker nurturing strong passive dependency tendencies. Consequently, I find that a Class 3 rating is in order.
Rating within Class 3
It is my opinion that a 30% rating under Class 3 (moderate impairment) is appropriate. The worker representative’s written submission of May 8, 2018 maintains that a rating of at least 40% is in order.
As noted above, in the lower range of Class 3 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. In the higher range of Class 3, a phobic pattern or conversion reaction will surface with some bizarre behaviour. There will be a 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.
The psychiatric report dated October 18, 2012 documents that the worker was coherent and logical throughout the assessment. A Global Assessment of Functioning (GAF) score of approximately 60 was provided. The report confirms that there is no suicidal ideation, no overt delusions, and that the worker denies any perceptual abnormalities. The March 14, 2015 report confirms that there are no psychotic symptoms. The psychiatrist provided an updated GAF score of “around 48” in the report of March 14, 2015.
Overall, I am not persuaded that a rating at the high-end of Class 3 is in order. In reaching this determination, I find that there is insufficient evidence of either the worker withdrawing from her family or a phobic pattern with bizarre behaviour. That being said, I accept that a mid-level Class 3 impairment rating of 30% is appropriate considering the psychological regression outlined within the psychiatric reports of October 18, 2012 and March 14, 2015 as well as the WSIAT decision of January 4, 2018.
CONCLUSION
I conclude that a 30% rating for chronic pain disability (CPD) is in order.
A rating in the high-end of Class 3 (moderate impairment) is not appropriate.
The request for a rating within the 50-90% range of marked impairment is denied.
The worker’s objection is denied.
DATED: May 7, 2019
K. MacMillan Appeals Resolution Officer Appeals Services Division