APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBEr:
20220063
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
REPRESENTED by:
self
HEARING:
HEARING IN WRITING
HEARD by:
L. Mansueti, appeals resolution officer
may 11, 2022
ISSUE
The worker objects to the Non-Economic Loss (NEL) Clinical Specialist decision letter dated April 9, 2021 granting a 14 per cent NEL benefit for their traumatic brain injury (TBI), facial disfigurement as well as permanent loss of smell and taste.
BACKGROUND
On October 30, 2018 the worker was working on a hydro pole when they were struck on the forehead by a falling 30 lbs. mule grip from a height of approximately 70’. They were working as a Lineman Apprentice at the time of injury, and had worked with the employer for approximately 1.5 years.
Entitlement was accepted for fractures to the skull, orbital bone, sinus and nasal bones, subdural hematoma, TBI, forehead laceration, and dental damage. The worker was subsequently granted entitlement for psychotraumatic disability, and the accepted diagnosis was Adjustment Disorder with mixed anxiety and depressed mood.
The worker received full loss of earnings (LOE) benefits from October 31, 2018 onward. In December 2018 the worker’s claim was transferred to the Serious Injury Program (SIP), and they received entitlement to an Independent Living Allowance (ILA) benefit. In May 2019 the worker was referred to Trillium Health Partners Neurology Specialty Program for assessment and treatment. In October 2019, the worker returned to work with employer performing modified duties at reduced hours. The worker received partial LOE benefits until August 2020, when they commenced concurrent employment with a different employer, thus restoring their wage loss.
The worker was determined to have reached maximum medical recovery (MMR) on February 28, 2020. A decision letter dated October 22, 2020 communicated the worker was entitled to an 11 per cent NEL benefit in recognition of their traumatic brain injury permanent impairment (PI) and disfigurement. The worker was transferred out of SIP, and the ILA was discontinued. The worker objected to the decision dated October 22, 2020, citing their loss of taste and smell was not captured in the NEL quantum. The matter was referred to the Appeals Services Division (ASD) and simultaneously referred to the NEL Clinical Specialist for a reconsideration. The NEL Clinical Specialist confirmed an 11 per cent NEL benefit remained in order, as per the letter dated March 15, 2021. On March 31, 2021, the operating area expanded the worker’s TBI entitlement to include loss of smell and taste, which prompted a reconsideration of the NEL quantum. The decision letter April 9, 2021 communicated the worker’s NEL quantum increased to 14 per cent. The worker representative requested the NEL benefit be reviewed for permanent loss of feeling and numbness in the head. The NEL Clinical Specialist indicated in the correspondence dated June 28, 2021, the 14 per cent NEL benefit captured the change in skin sensitization; therefore, the rating remained unchanged.
In June 2021, an Appeals Resolution Officer (ARO) withdrew the worker’s appeal from the ASD, as the issue in dispute (the decision dated October 22, 2020 granting an 11 per cent NEL benefit) had been addressed by the operating area. The worker objected to the April 9, 2021 decision, and this is now the issue before the ASD.
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
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 the worker is entitled to a 23 per cent NEL benefit.
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).
Review of Medical Evidence
Following the work accident, the worker was taken to General Hospital by Ornge Air Ambulance. The ambulance report indicated the worker did not lose consciousness immediately, but experienced confusion, hallucinations, and had two seizures. The worker had been wearing a helmet when they were struck; however, an open skull fracture of approximately 9” on the left side was evident, with a dent/cut in the helmet.
The worker suffered a severe TBI, complex left frontal and orbital fracture and forehead laceration. The worker underwent surgery with complex reconstruction as well as closure of a dural defect with debridement of lacerated brain. They did extremely well post-surgery. The worker was discharged from hospital on November 3, 2018.
Dr. B. Wang, Neurosurgeon, assessed the worker on November 18, 2018. The report indicated the forehead laceration appeared to be well healed. The laceration was noted to run from the eyebrow superior medially toward the midline. The closure over the eyebrow had healed well. The worker reported a loss of sensation to the left forehead, which was expected. Dr. Wang advised the worker the sensation would return, but it could take up to a year or more. The worker complained of ongoing headaches. Dr. Wong indicated the worker’s headaches would likely persist off and on for the next few months, but should gradually improve.
Dr. N. Strumas, Plastic Surgeon, assessed the worker on January 7, 2019. The consultation report indicated the worker reported numbness on the scalp and weakness in the frontal muscle distribution. There was no evidence of diplopia (double vision).
Dr. Wang reassessed the worker on February 20, 2019. The consultation report indicated the worker indicated their taste was off, which Dr. Wang advised was likely from the TBI affecting the olfactory bulb. The worker was advised this may improve with time, but most patients never regain normal function of smell afterward. The worker also reported dizziness, sensitivity to noise, headaches, and short-term memory loss, which Dr. Wang indicated were related to the TBI. The worker was advised their symptoms may take up to year to improve. Dr. Wang observed the worker’s frontal orbital bar was orbit appeared to be a bit more recessed compared to before.
Dr. Strumas reassessed the worker on May 7, 2019. The worker continued to report numbness on the forehead and scalp superior to the laceration. Upon examination, there was obvious enophthalmos (posterior displacement of the eye) on the left side. There was evidence of decreased brow projection on the left side. The scar itself was maturing well, and there was no evidence of hypertrophic scar formation. Dr. Strumas indicated the worker could leave things as they are, or consider operative intervention. The worker indicated they were not interested in surgery. Dr. Strumas indicated the worker was likely going to be left with some permanent numbness to the forehead and scalp.
Dr. Wang discharged the worker from his care on May 29, 2019. The report indicated the worker continued to report ongoing chronic headaches, which intensify with heavy lifting. Dr. Wang surmised the worker still had some ongoing post-concussive type symptoms. The report indicated the worker’s chronic headaches were likely secondary to some of the nerve injury and may be putting them in a chronic pain state.
In May 2019, the worker was referred Trillium Health Partners Neurology Specialty Program. On June 13 and 14, 2019 Dr. J. Desai, Neurologist, and V. DeFreitas, Occupational Therapist (OT), assessed the worker. The report indicated the worker had not received any therapy to date. The worker’s main areas of concern included daily throbbing headaches, numbness on the left forehead, and anosmia (total loss of sense of smell). The worker reported they were independent with self-care and activities of daily living (ADLs). Upon examination, the worker was alert and oriented to person, place, and time. They did not demonstrate any word finding difficulties. On the Multiple Errands Test (MET), the worker demonstrated significant difficulty with simple problem solving and decision making, decreased mental flexibility, limited or ineffective problem solving strategies, decreased attention to detail, and general awkwardness/disorganization. The worker was recommended to participate in an interdisciplinary program, including OT, physiotherapy and kinesiology with a focus on acquired brain injury.
Dr. J. Morin, the worker’s family doctor, submitted a Disfigurement Documentation form dated August 12, 2019, and validated (4) photographs of the worker’s laceration. The form indicated the following:
On central scar along forehead/top of scalp, there is no hair growth
Skull irregularities are palpable
No hair growth along scar R-temple area
Left eye is recessed (enophthalmos)
Skull irregularities along left eyebrow
The worker returned to the Neurology Specialty Program for a follow-up visit on January 10, 2020. The report indicated the worker had been attending a rehabilitation program from September to November 2019, with the goal of improving pain management techniques, cognitive rehabilitation, and strengthening exercises. The worker reported an increase in headaches and neck pain since they stopped treatment. The worker reported the following symptoms:
- Headaches - worsened
o Aggravating factors include: stress, feeling anxious, loud noise, bright lights especially at night, and too many people talking. Easing factors include: Tylenol
Neck pain – worsened, occurs with onset of headache
Light sensitivity
Loss of sense of smell, it has altered their sense of taste
Decreased sensation in area of the left forehead, ongoing numbness
“uncomfortable” pain behind left eye, feels like it is “cracking” or “popping” when blinking on occasion, reports discomfort along scar
Low back pain
Short-term memory loss, difficulty concentrating
Feels stressed out and anxious, decreased frustration tolerance
The report indicated the worker returned to work with the employer, performing modified duties at reduced hours in October 2019. The worker continued to be independent with self-care, ADLs, household tasks, and had resumed driving. The outcome measures on testing indicated the worker had a modest degree of persistent post-concussion symptoms, and their score on the Headache Impact Test (HIT-6A) suggested their headaches had a severe impact on daily functioning.
Upon examination, the worker was noted to have an overt marked linear scar across the left forehead, and on palpation, depression in the superior orbital margin and glabella, as well as irregularities across the frontal bone. Sensation in the left V1 distribution was absent to pinprick. A semi-hard mobile mass resulting in crepitus was observed on palpation. It appeared to be a loose fragment around the area of previous injury of the orbital socket. In terms of cognitive abilities, the worker answered all questions appropriately, maintained good eye contact, and was alert and oriented to person, place, and time. No significant cognitive deficits were noted in conversation. On the MET, the worker had 7 errors, which suggested their executive functioning difficulties may be significantly impacting their everyday life. The worker demonstrated significant difficulty with simple problem solving, required a significant amount of time for simple decision making, decreased attention to detail, decreased mental flexibility, limited and ineffective problem solving strategies, and general awkwardness/disorganization. The worker was recommended to continue treatment in the inter-disciplinary program.
The worker underwent a Neuropsychology assessment on February 28, 2020 and March 4 & 6, 2020 through the Neurology Speciality Program. Dr. C. Lemsky, Clinical Psychologist, and D. Black, Psychometrist, completed the assessment. The worker reported the following symptoms:
- Headache
o Vice-like pain radiating to back of neck, daily headaches ranging from 6 to 10 out of 10
o Pain is aggravated by mental and physical effort; Tylenol and rest are helpful
o Numbness on scalp, and a sensation of bone on bone in the area of the skull fracture
- Anxious Mood
o Intrusive thoughts and occasional nightmares, very vigilant about safety risks at work
o Periods of ruminating about their ability to take care of their family, frequent thoughts of what might have happened to their son and spouse if they had died
o Anxious mood interferes with quality of life to a moderate degree, tearful at times
- Increased frustration
o Feels frustrated because they need more time to complete tasks
o Has difficulty in problem-solving
- Photo sensitivity
o Increase in headaches with bright lights
o Difficultly tolerating glare from headlights
o Cranial nerve damage related to left eye has reduced responsivity in the pupil
- Phono sensitivity
o difficulty filtering out noise distractions
o loud noise aggravates head pain
- Cognitive impairment
o Difficulty with word-finding, cognitive slowing, reduced working memory
o Denies difficulty with auditory comprehension or long-term/remote memory
o Difficulty learning new information
o Lack of concentration/focus, requires more time to complete a task
o Impaired working memory and attention, easily distracted, forgetful
o Reduced cognitive speed, reduced reading speed
o Mild to moderately reduced manual speed and dexterity in both hands
- Disfigurement
o Worker reported feeling pleased with the outcome of the surgery and the healing of the scars. Despite this, the worker reported feeling self-conscious about the scar that is revealed when their hair is cut short
The worker completed a battery of tests, and the results suggested the worker had a mild to moderate cognitive slowing and a reduced capacity for verbal expression that includes mildly impaired word-finding.
These impairments have impeded the worker’s ability to perform verbal reasoning tasks. Their capacity for non-verbal reasoning appeared to be unaffected with respect to accuracy, though their overall performance on complex tasks was mild to moderately slowed. The worker also demonstrated significantly reduced fine motor dexterity and speed. They seemed to have generally good cognitive flexibility, though cognitive slowing was impeded on performing novel tasks that are dependent on sustained attention. The report indicated the worker’s cognitive recovery had likely plateaued.
Assessment of the Evidence
The operating area determined the worker reached MMR for their TBI on February 28, 2020, with evidence of a PI for Mild Neurocognitive Disorder due to TBI. The worker representative is objecting to the NEL quantum; however, they did not indicate what NEL rating they were seeking, only that the NEL benefit ought to include the worker’s scalp numbness.
Facial Disfigurement
With respect to the NEL rating for the facial disfigurement, the AMA Guides states, in part:
Facial disfigurement can be considered total if it is severe and grossly deforming of the face and features; also it must involve at least the entire area between the brow line and the upper lip on both sides. Severe disfigurement above the brow line should be deemed, at a maximum, 1% impairment of the whole person.
Dr. Morin’s August 2019 report and the accompanying photographs indicate the presence of a central scar along the forehead above the brow line with no hair growth along the right temple area. There is also evidence of left eye enophthalmos, and some skull irregularities along the left eyebrow. There is no evidence of any severe or grossly deforming of the face or features, and the evidence supports the disfigurement is above the brow line. According to the AMA Guides, I find a 1 per cent whole person impairment for the worker’s facial disfigurement is in order.
The evidence supports the worker experienced ongoing numbness of the forehead and scalp, and decreased sensation in the left forehead area. With respect to facial nerves, page 110 of the AMA Guides states, “Sensory loss from damage to one or even both facial nerves would not interfere with the patient’s performance of daily living activities, and in that instance no impairment rating would be given.” There is no indication in the evidence the worker’s scalp and forehead numbness interfered with ADLs, as such, no specific rating can be assigned for this symptom.
Neurocognitive Disorder due to TBI
To rate the worker’s TBI, I turn to Table 1 of the AMA Guides titled, Spinal Cord and Brain Impairment Values, which provides the categories for rating brain impairments. The categories are: language disturbance, complex integrated cerebral function disturbances, emotional disturbances, consciousness disturbances, episodic neurological disorders, and sleep and arousal disorders.
With respect to language disturbance, the evidence supports the worker did not demonstrate any significant cognitive deficits in conversation; however, there was indication they had mild to moderate cognitive slowing and a reduced capacity for verbal expression, including mildly impaired word-finding and difficulty expressing abstract ideas. In this category, I find the worker’s impairment is in keeping with a 5 per cent whole person impairment.
In terms of complex integrated cerebral function disturbances, the evidence supports the worker can carry out self-care and ADLs independently, although they require more time to complete tasks. The evidence in the record indicated the worker demonstrated cognitive slowing when performing novel tasks requiring sustained attention. There was also evidence of lack of concentration, reduced cognitive and reading speed, difficulty with simple problem solving, decreased mental flexibility, difficulties with short-term memory, mild to moderate reduced manual speed and dexterity in both hands, and general awkwardness/disorganization. I find the worker has a 10 per cent whole person impairment in this category.
The record indicated the worker’s anxious mood interfered with quality of life to a moderate degree. There worker endorsed having symptoms of mild residual trauma which had a mild but significant impact on their emotional well-being. There was evidence of intrusive thoughts and occasional nightmares, as well as ruminating about what might have happened to their family had they died. The worker reported being very vigilant about safety risks at work. The record indicated the worker was subsequently diagnosed with Adjustment Disorder with mixed anxiety and depressed mood, for which the worker received entitlement and treatment under this claim. I find the worker has a 20 per cent impairment in this category, as the evidence supports the worker’s emotional disturbances are present in a mild to moderate degree under ordinary stress.
Consciousness disturbances includes organic confusion state, stupor (poorly organized responses to noxious stimuli) and coma (no response). In review of the evidence in the case, it does not appear the worker demonstrated having any consciousness disturbances.
Episodic neurological disorders include, but are not limited to, syncope, epilepsy, and the convulsive disorders. In the worker’s case, there is no evidence of these disorders; however, there is indication the worker continued to suffer with persistent daily headaches, which has had a significant impact on their daily functioning. The worker indicated they had difficulty tolerating bright lights, loud noise, and trouble filtering out noise distractions. I find the worker has a 15 per cent impairment in this category, as it is in keeping with a slight interference with daily living.
With respect to sleep or arousal disorders, Dr. Lemsky’s report indicated the worker’s pain mildly interfered with their life-supporting activities, including eating, breathing, and sleeping. Given the reported slight interference with sleep, I find a 5 per cent whole person impairment is warranted in this category.
The AMA Guides indicates that more than one category of impairment may result from brain disorders, as is the case here. In such cases, the various degrees of impairment from the several categories are not added or combined, rather the largest value, or greatest percentage of the categories of impairment, is used to represent the impairment for all of the types. In this case, the largest value is 20 per cent.
Loss of Smell & Taste
With respect to the worker’s total loss of smell, I turn to Table 2 of the AMA Guides titled, Values for Impairment of Cranial Nerves, which indicates a complete bilateral loss of the olfactory nerve warrants single value of 3 per cent whole person impairment. With respect to loss of taste, page 180 of the AMA Guides, states, in part:
Only rarely does complete loss of the closely related senses of olfaction and taste seriously affect an individual’s performance of the usual activities of daily living. The rare case almost invariably involves occupational considerations that are outside the scope of a physician’s responsibility in the evaluation of permanent impairment.
For this reason, a single value of 3% impairment of the whole person is suggested for use in cases involving complete bilateral loss of either sense due to peripheral lesions.
The worker reported their taste was “off” as per Dr. Wang’s February 2019 report. Dr. Wang advised the worker it was likely due to the TBI affecting the olfactory bulb. I find the worker’s loss of taste appears to be closely related to their loss of smell, and there is no indication it had a significant impact on their ADLs. As such, I find a single value of 3 per cent whole person impairment is in order for loss of smell and taste.
As per the AMA Guides, the aforementioned permanent impairment values (1 per cent for facial disfigurement, 20 per cent for TBI, and 3 per cent for loss of smell and taste) are to be combined according to the Combined Values Chart to arrive at the worker’s total whole person impairment. As per the Combined Values Chart, the worker’s whole person impairment totals 23 per cent.
CONCLUSION
I conclude the worker is entitled to a 23 per cent NEL benefit for TBI, facial disfigurement, and loss of smell and taste.
The worker’s objection is allowed.
DATED May 11, 2022
L. Mansueti
Appeals Resolution Officer
Appeals Services Division