Workplace Safety and Insurance Board
DECISION NUMBER: 20230017
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER (NOT PARTICIPATING)
HEARING: HEARING IN WRITING
HEARD by: SUJETHRA NADARAJAH, APPEALS RESOLUTION OFFICER
ISSUES
The worker objects to the following two issues:
The Non-Economic Loss (NEL) Clinical Specialist’s July 9, 2020 decision to grant the worker a 24% NEL benefit for the permanent impairments of the left and right hip and right thigh.
The NEL Clinical Specialist’s December 20, 2021 decision to grant the worker a 20% NEL benefit for the permanent impairment of the worker’s post-traumatic stress disorder (PTSD) and major depressive episode.
BACKGROUND
On May 5, 2015, this worker, a labourer, was dismantling a vertical form when a brace jack fell and pinned the worker between a spinet box and the wall form. Entitlement was granted for healthcare and loss of earnings (LOE) benefits for a lower back, abdominal and pelvic injury.
Entitlement in this claim exists for:
Soft tissue injury to the abdomen, pelvis and lower back
Abdomen-pelvis rami fractures (left superior and inferior pubic rami)
Left hip labral tear and left total hip replacement surgery of May 27, 2016
Right thigh meralgia paresethica
Groin athletic pubalia
Right hip osteoarthritis and right total hip replacement surgery of July 17, 2018
Hypogonadism and balanitis and circumcision surgery on June 28, 2021
Psycho-traumatic disability approved for the Anxiety Disorder with features of Post- Traumatic Stress Disorder and Adjustment Disorder with Depressed Mood
The worker achieved maximum medical recovery (MMR) on January 7, 2020 with permanent impairments for bilateral hip replacements, posttraumatic arthritis, and right meralgia paresthetic. The July 9, 2020 decision granted the worker a 24% NEL benefit for the permanent impairments of the left and right hip and right thigh. The worker representative (WR) submitted an Intent to Object Form dated August 19, 2020 and as no new information was provided for consideration, it did not result in a change in the decision.
The worker achieved maximum psychological recovery (MPR) on March 5, 2020 with a permanent impairment. The December 20, 2021 decision granted the worker a 20% NEL benefit for the permanent impairment of the worker’s PTSD and major depressive episode. The worker’s total NEL benefit equalled a 39% Whole Person Impairment. The WR submitted an Intent to Object Form dated January 19, 2022 and as no new information was provided for consideration, it did not result in a change in the decision/and on reconsideration, there was no change in the decision.
On April 26, 2021, the WR submitted the Appeal Readiness Form (ARF) relating to the July 9, 2020 decision. On July 26, 2022, the WR submitted the ARF relating to the December 20, 2021 decision. The worker’s objection to the NEL quantum forms the basis of this appeal.
AUTHORITY
Operational Policy Manual Published
18-05-03 – Determining the Degree of Permanent Impairment November 3, 2014
18-05-04 – Calculating NEL Benefits
18-05-11 – Assessing Permanent Impairment Due to Mental and Behavioural Disorders
February 1, 2018
July 18, 2008
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker.
In reaching my conclusion, I also reviewed the April 26, 2021 and July 26, 2022 WR ARFs. The WR requested the worker’s NEL benefit should include all areas of injury in the NEL assessment. There is no rationale provided to demonstrate any errors made by the clinical specialist when the rating schedule was applied. Along with their July 26, 2022 ARF, the WR included a July 22, 2022 psychologist report discussing the worker’s permanent psychological impairment. The WR did not provide any arguments relating to their position on the matter of both NEL objections.
The employer was not a participant in the appeal; thus, no information was submitted for consideration.
- July 9, 2020 NEL quantum
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 because 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).
I reviewed the NEL evaluation forms, the impairment and the calculation details that were used to arrive at the NEL benefit. I am satisfied this is an accurate reflection of the worker’s impairment as these findings are consistent with the medical evidence on file and in accordance with the required procedure for determining the NEL benefit.
In this case, the November 25, 2019 Specialty Clinic Report documented findings for the bilateral hip range of motion. The assessor indicated the worker was stable in their recovery and required no further interventions. The worker was recommended to continue their home exercise program. Accordingly, I have used the range of motion findings from this report for the purposes of the NEL evaluation.
Tables 41 to 44 of the AMA Guides determines the, “% Impairment of Lower Extremity” in relation to Abnormal Motion of the hip. When comparing the worker’s findings to these four tables, I arrive at the following values for the right hip:
Right hip flexion at 100 degrees reflects a 0 % Impairment of Lower Extremity
Right hip extension was not tested (as no abnormality was noted it is rated as full range of motion per the AMA guide 30 degrees) reflects a 0 % Impairment of Lower Extremity
Right hip abduction at 30 degrees reflects a 4 % Impairment of Lower Extremity
Right hip adduction at 20 degrees reflects a 0 % Impairment of Lower Extremity
Right hip internal rotation at 15 degrees reflects a 5 % Impairment of Lower Extremity
Right hip external rotation at 30 degrees reflects a 5 % Impairment of Lower Extremity
By adding these values (0% + 0% + 4% + 0% + 5% + 5%), the worker was correctly rated at 14% Impairment of Lower Extremity for abnormal motion of the right hip in relation to flexion, extension, abduction, adduction, internal rotation and external rotation.
Table 45 of the AMA Guides provides the “% Impairment of Lower Extremity” with, “Impairment of the Lower Extremity Due to Other Disorders of the Hip Joint”. As the worker had a right replacement arthroplasty, an additional 20% Impairment of Lower Extremity is warranted.
Table 51 of the AMA Guides provides the “% Impairment of Lower Extremity” with “Specific Unilateral Spinal Nerve Impairment Affecting the Lower Extremity”. As the November 24, 2019 Specialty Clinic Report documented meralgia paresthetica (a decreased sensation to light touch in the distribution of the right lateral cutaneous nerve) without pain, an additional 4% Impairment of Lower Extremity is warranted for a Grade 3 sensory impairment.
Following the direction of the AMA Guides with respect to combining these values using the ‘Combined Values Chart’, the 14% for abnormal range of motion is combined with 4% sensory impairment to equal 17%, which is then combined with the 20% awarded under Table 45 for the arthroplasty. The combined value of the impairments correctly equates to 34% right hip impairment.
When comparing the worker’s findings to tables 41 to 44 of the AMA Guides, I arrive at the following values for the left hip:
Left hip flexion: 100 degrees reflects a 0 % Impairment of Lower Extremity
Left hip extension was not tested (as no abnormality was noted it is rated as full range of motion per the AMA guide 30 degrees) reflects a 0 % Impairment of Lower Extremity
Left hip abduction: 30 degrees reflects a 4 % Impairment of Lower Extremity
Left hip adduction: 20 degrees reflects a 0 % Impairment of Lower Extremity
Left hip internal rotation: 20 degrees reflects a 5 % Impairment of Lower Extremity
Left hip external rotation: 30 degrees reflects a 5 % Impairment of Lower Extremity
By adding these values (0% + 0% + 4% + 0% + 5% + 5%), the worker was correctly rated at 14% Impairment of Lower Extremity for abnormal motion of the left hip in relation to flexion, extension, abduction, adduction, internal rotation and external rotation.
Table 45 of the AMA Guides provides the “% Impairment of Lower Extremity” associated with, “Impairment of the Lower Extremity Due to Other Disorders of the Hip Joint”. As the worker had a left replacement arthroplasty, an additional 20% Impairment of Lower Extremity is warranted.
Following the direction of the AMA Guides with respect to combining these values using the ‘Combined Values Chart’, the 14% for abnormal range of motion is combined with the 20% awarded under Table 45 for the arthroplasty. The combined value of the impairments correctly equates to 31% left hip impairment.
Table 46 of the AMA Guides provides the “% Impairment of Lower Extremity” to “% Impairment of Whole Person” for the right hip reduces from 34% to 14% and 31% to 12% for the left hip. The combined value of the two impairments (14% and 12%) correctly equates to 24% Whole Person Impairment.
Therefore, I am satisfied that the worker’s NEL quantum has been appropriately rated at 24%.
- December 20, 2021 NEL quantum
Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders, sets out the guidelines for determining the appropriate degree of permanent impairment due to a work-related mental or behavioural disorder.
The condition is rated using the Mental and Behavioural Disorders Rating Scale, which combines elements of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition (revised), (the AMA Guides) with the WSIB's Psychotraumatic and Behavioural Disorders Rating Schedule.
The AMA Guides require that the severity of a mental and behavioural disorder be evaluated based on their effect on functional limitations associated with: activities of daily living; social functioning; concentration, persistence and pace; and adaptation to stress.
Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders, provides five classes of impairment. The class related to this appeal is Class 3, Moderate impairment. The policy provides:
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.
When assessing a permanent impairment under this policy, it is important to note that the overall rating places an individual within a single Class. Whereas an individual could potentially demonstrate symptoms attributable to multiple Classes, the rating is determined by which Class in the rating scale most closely resembles the individual’s overall level of impairment.
In this case, the WR provided a letter from the psychologist dated July 22, 2022 indicating the worker is 80-90% permanently psychologically impaired. The psychologist strongly recommended the worker should continue ongoing psychological treatment.
I will only review medical documents until February 1, 2021, as the NEL Clinical Specialist did in their decision of December 20, 2021. I cannot consider the medical document from July 22, 2022 when I make my determination because policy 18-05-03 Determining the Degree of Permanent Impairment stipulates decision-makers determine the degree of the permanent impairment by considering the healthcare information around the time when a maximum psychological recovery is determined (MPR in this case is March 5, 2020). Should the worker be seeking a re-determination of the NEL benefit based on subsequent reporting, the request should be directed to the operating area.
The following are my reasons for why I have classified this worker’s permanent impairment under a Class 3, Moderate impairment equalling a 20% psychological impairment.
- Activities of daily living:
The March 5, 2020 psychologist progress report indicated the worker struggled with their mobility due to hip limitations and is dependent on their spouse and children for house chores. The assessor also noted the worker’s undiagnosed learning disabilities limited them.
The February 1, 2021 occupational therapist report stated the worker demonstrated independence in mobility, sit-to-stand transfers, stair climbing and personal care tasks. The worker has pain when putting on their socks and shoes. The worker “described an overall loss of interest and motivation to pursue daily activities, secondary to his physical and psychological impairment”. The worker described their sleep to be poor and stated they awaken multiple times at night due to pain and physical discomfort. Prior to the injury, the worker regularly performed various home maintenance activities and was responsible for all outdoor maintenance tasks including grass cutting, snow removal, taking out the garbage, etc.; now he is unable to do so due to this physical limitations. The worker makes breakfast, lunch and snacks for their son everyday.
I note the worker’s organic permanent impairment NEL benefit captured the worker’s limitations with activities of daily living. Accordingly, I find, for the most part, there is a mild to moderate impact on the worker in this category.
- Social functioning:
The February 1, 2021 occupational therapist report provided a breakdown of the worker’s daily routine. This included preparing breakfast and lunch for their younger son, getting their son to the pickup location for the school bus, watching television, driving to a nearby coffee shop, taking an afternoon nap and picking up their son from the pick-up location. The worker reported they look forward to occasions such as their son’s birthday. In addition, on occasion, they go on an outing with their mother to the grocery store.
The March 5, 2020 psychologist progress report documented the worker was “also limited by his undiagnosed learning disability(ies?), which leads to not having, really, any type of hobby, interest, or activity that could help him cope with the changes in his life”.
Based on my review of the file, the worker’s communication skills are within normal limits. This is supported by multiple psychologist’s reports that indicate the psychologist developed a sound therapeutic relationship based on several factors including their ability to communicate in Portuguese.
I find the worker has mild-moderate loss in personal or social efficacy, but they continue to have a strong connection to their family.
- Concentration, persistence and pace:
In the March 5, 2020 psychologist progress report, the worker noted they were not able to complete tasks and that they lacked focus to follow movies or shows. This was reiterated in the February 1, 2021 occupational therapist report where “from a cognitive perspective, [the worker] noted changes in his memory and concentration since his workplace injury. He has difficulty participating in a social context as he is unable to follow the topic of conversation and is easily distracted”.
The worker has the capacity to drive, which requires concentration, attention, focus and cognitive persistence.
I find the worker’s concentration, persistence and pace are mildly impacted.
- Adaptation to stress:
According to the December 8, 2021 letter, there are no specific permanent psychological restrictions in this claim.
The March 5, 2020 psychologist progress report noted the worker “is a very impatient individual, quick to losing his temper when frustration strikes him, even at relatively minor levels of it”.
In the February 1, 2021 occupational therapist report, the worker indicated their mood to be ‘really low’ and ‘bad’. They had ruminating thought patterns related to their work injury and the permanent changes to their lifestyle, have changed their personality. The worker reported having low distress tolerance, irritability, frustration and short temperedness. This change has negatively affected the worker’s interactions with his wife and sons.
Medical documents on file noted the worker has an above average level of perceived disability and fear/avoidance of activities, along with their belief in hurt equals harm.
I find there is a moderate emotional disturbance under ordinary stress.
Therefore, when considering the guidelines in conjunction with the medical evidence, I am satisfied that the worker falls within the low-range of Class 3, Moderate impairment. The evidence does not support the worker is at the maximum end of Class 3, Moderate impairment as there is no indication of psychomotor retardation, severe noise intolerance, phobic pattern, conversion reaction or bizarre behaviour. In addition, everyday activities are not restricted to such an extent that the worker is homebound or room bound at frequent intervals.
I find the worker falls within the Class 3, Moderate Impairment equalling a 20% impairment.
CONCLUSION
The issues are concluded as follows:
The NEL quantum of 24% for the bilateral hip replacements, posttraumatic arthritis, and right meralgia paresthetic is confirmed.
The NEL quantum of 20% for the psychological impairment is confirmed.
The worker’s objection is denied.
DATED September 26, 2022
Sujethra Nadarajah Appeals Resolution Officer Appeals Services Division