DECISION NUMBER:

20220018

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

M. RODRIGUES, APPEALS RESOLUTION OFFICER

DATED: FEBRUARY 7, 2022

ISSUES

The worker, through their representative, is objecting to the following decisions:

1. A July 26, 2021 decision by the non-economic loss (NEL) clinical specialist that determined the quantum of the NEL benefit for adjustment disorder with mixed anxiety and depressed mood was rated at 6%.

2. A July 8, 2021 decision by the case manager that determined the worker has no formal psychological restrictions for returning to work.

BACKGROUND

On April 9, 2019, this carpenter assistant was working on the roof of a house, when they fell about 9-feet onto a pile of wood laying at the side of the house. The worker sustained multiple injuries, but resumed working, self-modifying their regular duties. They began losing time from work on October 21, 2019.

Initial entitlement was accepted for health care and loss of earnings (LOE) benefits for a head soft tissue injury/contusion, lower back lumbar strain with a L4-5 annular tear and right hip strain and abductor tendonitis. Entitlement to a right inguinal hernia was denied. Subsequently, permanent impairments were accepted for low back and right hip injuries and the worker received a 37% NEL benefit.

A prior Appeals Resolution Officer’s final decision of June 30, 2021 has thoroughly documented the claim history and has no bearing on the current issues under appeal in this claim. Briefly, the worker had been participating in return to work (RTW) services since May 2020. In February 2021, the RTW Specialist (RTWS) determined the suitable occupation (SO) of Electronics Assembler was suitable, but the worker appealed the decision. The ARO decision of June 2021 concluded the SO was not suitable.

In July 2020, the worker began attending psychological treatment at the specialty clinic. In a decision letter of July 8, 2021, entitlement to and a permanent impairment for adjustment disorder with mixed anxiety and depressed mood was accepted under the psychotraumatic disability policy. The case manager determined the worker had no formal psychological restrictions for returning to work, but accepted RTW accommodations for the psychological condition.

In a decision letter of July 26, 2021, the NEL clinical specialist determined the quantum of the NEL benefit for the psychological condition was rated at 6%. The worker now had a combined NEL benefit of 43%.

In December 2021, the RTWS determined a SO could not be identified. On December 14, 2021, RTW services were closed and the worker continued to receive full LOE benefits.

The worker representative disagreed and objected to the decisions of July 8, 2021 and July 26, 2021, which now form 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

February 1, 2018

18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders

July 18, 2018

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. For the reasons that follow, I find there is no entitlement to an increase in the NEL quantum for the psychological condition. I find the worker has no formal psychological restrictions for returning to work. The worker’s objection is denied.

Policy

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). This is outlined in policy 18-05-03 (Determining the Degree of Permanent Impairment). The policy states that to rate permanent impairments, the decision-maker uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, a report from an independent medical assessment, to determine the degree of permanent impairment.

If a type of impairment is not listed in the prescribed rating schedule, the decision-maker uses criteria in the prescribed rating schedule for the body parts, systems, or functions, which are most similar to the worker's impairment.

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.

If a worker with a pre-existing NEL benefit has a new permanent impairment that affects another area of the body, the decision-maker determines the second NEL benefit by:

• rating the new impairment independently of the prior impairment

• combining the old and new ratings using the prescribed rating schedule, and

• subtracting the prior impairment's rating from the combined value.

Workers who have a permanent impairment due to a work-related mental or behavioural disorder are entitled to non-economic loss (NEL) benefits based on the severity of the impairment. This is outlined in policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders). The WSIB then rates the condition using the Mental and Behavioural Disorders Rating Scale, which combines elements of the AMA Guides with the WSIB's Psychotraumatic and Behavioural Disorders Rating Schedule.

For 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.

Specifically for 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.

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.

The AMA Guides suggest four areas for assessing the severity of mental impairments:

• Activities of Daily Living

• Social Functioning

• Concentration, Persistence and Pace

• Adapt to Stressful Circumstances

Each of these functions is considered in terms of independence, appropriateness and effectiveness. The rating categories described in policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders) are aligned with Table 1 – Impairment Due to Mental and Behavioral Disorders on page 241 of the AMA Guides.

Worker position

In the submission of August 23, 2021, the worker representative argued the psychological RTW accommodations should be accepted as permanent psychological RTW restrictions. They stated the NEL benefits for the worker’s psychological impairment should be rated as moderate to major in categories 2 and 3 in policy 15-04-02 (Psychotraumatic Disability). They acknowledged that while the worker managed their self-care activities with assistance, the clinical evidence supports the worker was severely disabled with respect to their activities of daily living, social functioning and concentration. The representative stated the worker experienced difficulties with retraining were supported by the evidence on file. They opined the worker was severely impaired from a psychological perspective and referenced a medical report August 19, 2021 from the psychologist in support of their position.

Employer position

The employer chose not to participate in this appeal and did not provide any submissions for my review.

Findings

Issue #1 – NEL quantum for psychological impairment

For the reasons that follow, I find there is no entitlement to an increase in the NEL quantum for the psychological condition.

I noted the representative requested the worker’s impairment rating should fall either in category 2 (moderate impairment with a rating of 15% to 25%) or 3 (major impairment with a rating of 30% to 50%) based on policy 15-04-02 (Psychotraumatic Disability). Of significance, that policy refers to the psychotraumatic and behavioural disorders rating schedule used when rating pre-1990 claims, as those guidelines relate to permanent disability benefits for accidents before 1990. For information on assessing a permanent impairment due to mental and behavioural disorders for accidents occurring on or after January 2, 1990, I used policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders). As such, given that the date of injury is April 9, 2019, I relied on policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders) to make a decision on the impairment rating for the psychological condition in this claim.

Policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders) provides clarification about the degree of impairment for the lower and higher range of impairments in Class 3, Moderate impairment. In Class 3, Moderate impairment (20-45%), a person displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration and longer episodes of depression. The person tends to withdraw from the family, develops severe noise intolerance and a significantly diminished stress tolerance. However, I do not accept the worker representative’s argument that the worker’s rating for the psychological condition should be higher than 10%. I do not find that the worker withdrew from their family, developed a noise intolerance and a significantly diminished stress tolerance. I find the 10% rating under Class 2, Mild impairment for adjustment disorder with mixed anxiety and depressed mood is supported by the available clinical evidence and my reasons for why will become clear below.

Activities of Daily Living

Based on the available clinical evidence for the worker’s activities of daily living, I do not find an impairment rating in Class 3, Moderate impairment is warranted. I do not find the clinical evidence supports the worker needed supervision or direction to perform daily activities. I find the available clinical evidence supports the worker independently performed their personal care activities, such as showering, getting dressed and grooming, albeit taking a bit more time to do so. There was no evidence to indicate the worker needed any assistance, direction or supervision while performing any personal care activities.

I noted the worker representative placed weight on the August 19, 2021 psychological report, in which the psychologist opined the worker was severely impaired in the activities of daily living. However, it is important to note that in the same report, the psychologist identified the worker had a high pain catastrophization. This observation was also noted by other assessors in the specialty clinic report of July 20, 2020 based on the psychological testing. I do not accept the opinion of the psychologist in the August 2021 medical report with respect to the worker being severely impaired in their activities of daily living. I prefer the clinical evidence in the medical reports from the specialty clinic of July 2020, November 2020 and March 2021, WSIB Community Mental Health Program (CMHP) of November 2020 and Independent Living Assessment (ILA) of September 2021.

I noted the worker reported they were unable to perform household chores due to pain as indicated in the medical reports on file. However, it is important to note that following the April 2019 workplace accident, the worker continued to work, performing their regular duties until October 21, 2019. At that time, the worker stopped working.

I do not find the clinical evidence supports the worker was homebound. In the July 20, 2020 and November 6, 2020 specialty clinic reports, the worker confirmed they hired someone to help them with cooking, cleaning and laundry. In addition, the worker reported they would lie down on the couch most of the day. However, it is important to note that in the above two specialty clinic reports, the worker stated they went for daily walks to the park, using their cane for longer distances and they also reported being able to drive short distances. The worker also confirmed their ability to drive in the CMHP report of November 27, 2020 as well.

Of significance, I noted that no further recovery was anticipated for the low back and right hip injuries based on the December 3, 2020 specialty clinic report. At that time, a home exercise program was recommended, along with consideration for a referral to a community pain clinic and follow-ups with the family doctor for ongoing mental health support. Permanent restrictions for the low back and right hip injuries were recommended at that time. As such, I find this clinical evidence further supports the worker was not homebound.

I noted they drove to English classes, as they were participating in a RTW training plan at that time. Of note, there was no available clinical evidence to support the worker was unable to go shopping or needed help with their mobility. In the March 25, 2021 specialty clinic report, the worker stated that while they did not go to the grocery store, they sometimes picked up take-out. They confirmed they were able to perform personal care activities, such as showering, but reported to spend most of their time lying down. This indicates to me the worker was not homebound for the majority of their days, attending psychological treatment, appointments at the pain clinic and English classes.

I noted the psychological report of August 2021 stated the worker was severely impaired by their activities of daily living. However, I find the information provided by the worker in the ILA report of September 30, 2021 contradicts that statement. The worker stated they were unable to walk, but were able to drive. They had to stop every 10-minutes or so to get out of the car and stretch. At that time, the worker confirmed they were driving to school to attend classes, as part of the RTW training program, but that even though the school was 5-km away, it took them one hour to get there. The worker reported that if they ran out of prepared food, they would go to purchase takeout meals. In my view, the evidence supports the worker left their home to pick up food whenever they ran out and attend class. This required the worker to either walk, or get in their car to drive to the school to attend class, or specific food location to pick up something to eat. As such, I find the available clinical evidence does not support the worker was home or room bound at frequent intervals.

Furthermore, while the worker required the help of an interpreter when they were seen by various treating health practitioners, I noted none of the psychological reports indicated difficulties were observed for speech or fluency. This indicates to me the worker was able to articulate themselves clearly when speaking with the treating health practitioners. Sometimes I noted the questions had to be asked again and the worker became frustrated when answering them. The clinical evidence indicated the worker made good eye contact and oriented to place, person and time. Therefore, I find that a Class 2 impairment rating remains in order noting the worker’s activities of daily living.

Social Functioning

I do not accept the worker representative’s position that the clinical evidence supports the worker was severely impaired with respect to social functioning. While the representative relied on the August 2021 psychological report, I did not. In reviewing the clinical evidence, while I acknowledge there is some loss regarding the personal or social functioning, I do not find the available clinical evidence supports the worker withdrew from their family or friends, or avoided socialization completely.

There were contradictory statements made by the worker in various medical reports when discussing their social interaction with other people. Of interest, in the January 5, 2021 CMHP, March 2021 specialty clinic and September 2021 ILA reports, the worker reported not socializing at all and had no friends. They denied having made friends in Canada, stating they were too busy working prior to their workplace accident. However, I noted that in the July 2020 specialty clinic report, the worker reported seeing their friends once a week and attending church less frequently due to the prolonged sitting and standing. In the November 2020 CMHP report, the worker indicated they had travelled to Portugal in the summer and that seeing family and friends helped. This sentiment was also echoed by the worker in the March 2021 specialty clinic report. In the November 2020 specialty clinic report, the worker found school was enjoyable as they connected with other people. The worker then indicated they avoided social interaction, but also had a limited social life, in part due to the lockdown as well.

I do not find the psychological reports indicate there was an incipient breakdown of social integration that the worker withdrew from their family, significantly diminished stress tolerance, avoidance of anxiety-created situations and everyday activities, to the extent the worker could be home or room bound frequently. I noted in the ILA report of September 2021, the worker stated they wanted to see to travel to see their family in Portugal, but that their request had been denied by the case manager. As such, I do not find the clinical evidence supports there was a complete avoidance of socializing with family or friends, as noted in the July 2020, November 2020 and March 2021 specialty clinic and September 2021 ILA reports. Thus, I find the rating impairment in Class 2 supports the worker’s level of social functioning.

Concentration, Persistence and Pace

In the August 2021 medical report, the psychologist opined the worker was severely impaired for concentration and attention, including having a poor memory and inability to retain new information. In reviewing the psychological reports from the specialty clinic and CMHP, the worker reported struggling with memory, concentration and focusing in their English classes, that were part of the RTW training program.

However, I do not accept the worker representative’s position that a higher impairment rating beyond that of Class 2 is warranted, noting the worker’s concentration, persistence and pace. In my view, there is no available evidence to support the worker was unable to manage their finances. No difficulties were noted with the worker’s speech or fluency, even though they used an interpreter, in any of the medical reports.

In the July 2020 specialty clinic report, psychological testing was completed. However, I noted the psychometric testing used by the psychologist in this claim consisted of self-assessment questionnaires that the worker was required to complete for a standard personality inventory, health and disability, anxiety, depression inventory and pain questionnaire testing. Of significance, there is no available clinical evidence to support the worker performed psychological tests for memory, intelligence or concentration. However, the assessors opined the worker was a high risk for chronic pain and pain catastrophization based on the scores. In that report, the worker was alert and oriented, with their thought process being logical, coherent and reality-based. They also showed good insight and judgment. I find this supports the worker was able to articulate themselves clearly, through the aid of interpreters, when speaking with their various treating health practitioners. The worker was observed to be neatly dressed and oriented to time, place and person, as noted in the March 2021 specialty clinic report. They maintained good eye contact and remained co-operative during most of the assessments. However, at that time, the worker’s thought content was preoccupied with pain.

Furthermore, I noted in the ILA report of September 2021, the worker reported they had difficulty concentrating when driving, due to the pain. When the occupational therapist asked if they felt safe to drive by, given the worker said their concentration needed a break every 10-minutes, they stated they had to drive to school. However, in reviewing the December 3, 2020 specialty clinic report that found the worker had permanent restrictions for their organic injuries, I noted there were no restrictions against driving. I find it significant that the worker continued to drive, even short distances as they reported, up to 5-km away. This supports the worker was independent and able to perform a variety tasks, such as driving that requires concentration and focus. In my view, operating a vehicle requires extreme concentration in order to drive the speed limit, drive on a specific route and check the mirrors for other traffic and pedestrians, all the while focusing on your surroundings. In addition, I noted in the prior ARO decision of June 30, 2021, the ARO found that while the worker’s English may be limited, their ability was such that the worker was at least able to safely drive a vehicle in Ontario where traffic signs were in English.

As such, I do not accept the worker representative’s position that a higher impairment rating is warranted, noting the worker’s concentration, persistence and pace. I find the impairment rating under Class 2 is appropriate given the worker’s concentration, persistence and pace.

Adapt to Stressful Circumstances

With respect to adaptation to stressful circumstances, I noted the clinical evidence indicated ongoing psychological symptoms with some depression and anxiety. In my view, despite the worker’s depressive symptoms, I do not find the available clinical evidence supports they were unable to function or carry on with many of their normal activities. Of note, the worker continued to perform their regular duties for more than six months following the workplace accident. In addition, as noted specialty clinic, CMHP and ILA reports, the worker continued to socialize and see their friends once a week, travelled to see their family in Portugal and was mobile, driving their car, picking up takeout and taking walks in the park.

While the worker was worried about their financial situation and future, I do not find the available clinical evidence supports their anxiety inhibited their ability to function. The worker was able to independently perform self-care activities, along with some of those required for daily living. This is supported by the specialty clinic, CMHP and ILA reports. While I noted the worker did mention self-harm on a few occasions, they denied suicidal ideation or a plan, stating their children were a strong protective factor. In addition, no issues were noted by the treating health practitioners about the worker’s inability to interact with them or family members. Thus, I do not find the available clinical evidence supports that an impairment rating within Class 3 is in order.

Summary – Impairment Rating within Class 2, Mild impairment

I find a rating of 10% under Class 2, Mild impairment remains in order. I do not accept the worker representative’s position that a higher impairment rating is sufficient. Prior to starting the psychological treatment, I noted the worker was working for more than six months after the workplace accident and began psychological treatment the following year. I find the clinical evidence supports the worker was independent with respect to their personal self-care activities, but remained capable of carrying out most of their activities of daily living, requiring some assistance. I noted they sought assistance from a personal support worker, as indicated in the ILA report of September 2021, to help them with cooking, cleaning and laundry. While the medical reports indicated the worker was dependent on someone else for various household tasks, I noted they were still able to perform some tasks independently – such as go and pick up takeout, either by walking or driving to the food location. There is no evidence to suggest the worker needed assistance with their finances or driving, both of which require concentration and focus. This supports that an impairment rating in Class 2 is appropriate.

Noting policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders) and the AMA Guides, I find the worker is not entitled to a rating under Class 3, Moderate impairment. I find the rating of 10% under Class 2 is appropriate. I noted a 37% NEL rating was previously paid out in this claim for low back and right hip injuries. As such, combining the previous ratings and the psychological condition impairment rating, gives a combined value of 43%. As such, the NEL benefit for the psychological condition remains at 6%. Thus, I find that an impairment rating under Class 2, Mild impairment remains in order.

Issue #2 – Psychological restrictions

For the reasons that follow, I find the worker has no formal psychological restrictions for returning to work.

As stated previously, I concluded the worker’s psychological impairment rating remains in Class 2, Mild impairment. Policy 18-05-11 (Assessing Permanent Impairment Due to Mental and Behavioural Disorders) states that a rating in Class 2 for a mild impairment indicates the worker remains able to carry out most activities of daily living as well as before. As noted above, the worker was able to perform many personal care, driving and some household activities independently. This means there was usually no significant psychological restrictions. I find this is supported by the March 25, 2021 specialty clinic report, in which the assessors’ did not identify any formal psychological restrictions.

I do not accept the worker representative’s position that the psychological RTW accommodations should be accepted as permanent psychological RTW restrictions. I do not find the clinical evidence supports the worker had any formal work restrictions from a psychological perspective. In reviewing the psychological reports, I placed weight on the March 25, 2021 specialty clinic report, in which the assessors concluded they were not recommending restrictions, but instead accommodations from a psychological standpoint.

The assessors stated:

We are not recommending any restrictions from psychological perspective. There are pain related barriers and limitations, including poor pain coping, high pain focus, a tendency to magnify and catastrophize his pain, high disability focus, reliance on avoidance-based and passive coping, and related problems with mood, anxiety and concentration.

I find it significant the assessors in the March 2021 specialty clinic report indicated the worker was able to RTW from a psychological perspective and did not recommend any psychological restrictions. Barriers were identified for RTW that were primarily pain-related and related to the worker’s passive/helpless coping style, in addition to a lack of available duties to return to, limited education and lack of English proficiency. The assessors provided a summary of accommodations, given the worker’s abilities, symptom triggers and safety considerations. Accommodations were recommended for having the ability to pace and engage in adaptive active and passive coping strategies, reduce tasks with an immediate risk for injury due to reduced attention, allow for short breaks as needed to restore concentration, assign tasks that have flexibility in deadlines and allow for task rotation, break down tasks into smaller components and provide additional time and reinforcement of any new material to be learned.

In reviewing the psychological reports, I noted no formal psychological restrictions for RTW were identified. It is important to note that in the August 2021 medical report, the psychologist stated the worker’s permanent psychological restrictions were significant and severe, but did not identify any restrictions in that or any of the CMHP reports. In the CMHP reports, the psychologist recommended the worker take breaks, self-pace, change positions and perform tasks that do not involve a high degree of focus, concentration or retention. I do not consider these recommendations to be restrictions, but accommodations instead. In addition, I do not find the worker representative gave any evidence to support why the accommodations should be taken as formal psychological restrictions for RTW. Therefore, I find the worker has no formal psychological restrictions for returning to work.

CONCLUSION

For the reasons noted above, I conclude:

1. There is no entitlement to an increase in the NEL quantum for the psychological condition.

2. The worker has no formal psychological restrictions for returning to work.

The worker’s objection is denied.

DATED February 7, 2022

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division