DECISION NUMBER:

20240016

WORKER

WORKER REPRESENTATIVE

EMPLOYER

EMPLOYER REPRESENTATIVE

HEARING IN WRITING

CANDICE KISH, APPEALS RESOLUTION OFFICER

NOVEMBER 14, 2023

OBJECTING PARTY:

REPRESENTED by:

RESPONDENT:

REPRESENTED by:

HEARING:

HEARD by:

DATED:

ISSUES

The worker, through their representative, objects to:

1. The Case Manager’s decision dated May 19, 2021, determining that the 100% of the worker’s Canada Pension Plan (CPP) disability benefits would be offset from their loss of earnings (LOE) benefits ongoing from September 10, 2014.

2. The NEL Clinical Specialist’s decision dated October 15, 2021, determining the quantum of the worker’s non-economic loss (NEL) benefit for their permanent psychotraumatic disability at 25%.

BACKGROUND

The worker was injured on October 10, 2012, when they were carrying rolled materials on stairs. The last step was deeper than expected and they jarred their lower back when their foot reached the floor. They returned to work with the accident employer briefly from October 25, 2012, to November 19, 2012, and have not worked in any capacity since June 2, 2013.

The October 10, 2012, accident occurred on the background of an accident on June 11, 2009, that also resulted in a compensable low back injury. The Vice-Chair in the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated December 18, 2019, found the worker did not have a permanent impairment for the lower back under the June 11, 2009, claim; however, the

October 10, 2012, accident likely permanently aggravated a prior low back condition. The Vice-Chair determined the worker had a permanent impairment for the lower back under the claim before me and was entitled to a NEL assessment accordingly.

On December 18, 2019, the worker received an 11% NEL benefit for a lumbar strain for which maximum medical recovery was reached effective February 4, 2013. The Case Manager’s decision dated

May 19, 2021, determined in part that the worker was unemployable and entitled to full LOE benefits from June 2, 2013, to age 65; however, with 100% offset of their CPP disability benefits as of

September 10, 2014 – the point they identified as the date of notification of CPP disability benefit entitlement. The 100% offset was confirmed in the reconsideration dated July 26, 2023.

The worker representative requested psychotraumatic disability entitlement in correspondence dated January 25, 2020. The Case Manager’s decision dated October 13, 2021, allowed for psychotraumatic disability entitlement for Chronic Adjustment Disorder and Generalized Anxiety Disorder for which maximum psychological recovery with a permanent impairment was reached effective November 21, 2018. The NEL Clinical Specialist’s decision dated October 15, 2021, rated the worker’s NEL benefit for psychotraumatic disability at 25%, which when combined with the 11% NEL rating for the low back resulted in a 31% whole person impairment.

The worker’s objection to the quantum of the CPP disability offset, and the quantum of the NEL benefit for psychotraumatic disability forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

18-01-13

Calculating CPP/QPP Offsets from FEL/LOE Benefits

February 15, 2013

18-05-11

Assessing Permanent Impairment Due to Mental and Behavioural Disorders

July 18, 2008

ANALYSIS

I have carefully considered all of the available information, legislation, and relevant operational policies in reaching this decision. I find:

1. 67% of CPP disability benefits should be offset from the worker’s LOE benefits – reducing the current offset by one-third to account for the contribution of non-work-related injuries to the CPP disability benefit allowance.

2. The quantum of the worker’s NEL benefit for psychotraumatic disability is confirmed at 25%.

My reasons follow.

Worker’s Position

The worker representative provided a submission dated September 20, 2023, outlining their position on the matters before me. Regarding the issue of CPP offset, they submit that the Case Manager erred in offsetting 100% of the worker’s CPP disability benefits from their LOE benefits. They note that the CPP disability documentation identifies an injury to the right upper extremity as one of the underlying reasons for their serious and prolonged disability. They argue that alongside the worker’s compensable low back injury and psychotraumatic disability, their non-compensable right upper extremity injury should be factored into the CPP disability offset calculation – reducing the offset by a third. They also noted on the Appeal Readiness Form dated June 5, 2023, that the worker’s non-work-related conditions resulting in CPP disability benefits also include chronic headaches and cervical pain.

Regarding the issue of the NEL quantum for psychotraumatic disability, they submit that the severity of the worker’s psychological impairment warrants a rating in the upper range of Class 3. They indicate that the cumulative changes in the worker’s functioning in their activities of daily living, social functioning, and

adaptation to stress, compared to their pre-accident functioning, are indicative of a severe deterioration in overall function that warrants a higher rating. While the NEL Clinical Specialist made note that the impact of physical impairment on the worker’s activities of daily living is not considered in the psychotraumatic disability NEL rating to avoid duplication, they opine this is incorrect as the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) already include a mechanism for correcting the duplication of symptoms – combining, rather than adding impairment values.

Employer’s Position

The employer is not participating in the appeal and did not provide any submission regarding the matters before me.

Assessment of Evidence

1. CPP Offset

The purpose of the offset and apportionment of CPP disability benefits is to prevent double compensation for the same work-related injury. Policy 18-01-13, Calculating CPP/QPP Offsets from FEL/LOE Benefits, sets out in part that the Workplace Safety and Insurance Board (WSIB) only offsets an amount that is less than 100% of CPP disability benefits when the CPP disability benefits are being paid to the worker for a combination of work-related and non-work-related injuries/diseases. In cases where the WSIB determines, or if the worker indicates, that CPP disability benefits are being paid for both work-related and non-work-related injuries/diseases, the WSIB reviews any relevant information that may indicate the basis for entitlement to CPP disability benefits (e.g., copy of the application to CPP and any accompanying health care reports, health care reports in the claim, or letters from CPP).

Based on this information, the WSIB:

• assesses the medical significance of all contributing injuries/diseases (with the assistance of the WSIB medical consultant, if necessary)

• assigns a percentage to each injury/disease based on the medical significance, and

• offsets the percentage of the CPP disability benefits related to the work-related injury/disease.

If the WSIB is unable to determine the medical significance of the injuries/diseases contributing to the allowance of the CPP disability benefits, the WSIB apportion the CPP disability benefits equally between the work-related and non-work-related injuries/diseases. There is no reduction in the CPP offset if the worker has other work-related injuries/diseases which are contributing to the allowance of the CPP disability benefits.

The CPP disability benefit documentation supports that the worker is being paid CPP disability benefits for both work-related and non-work-related injuries. A letter from the worker’s family physician, Dr.

Fernandez, dated June 23, 2014, in support of the worker’s CPP disability benefit application indicates the worker is totally impaired based on the cumulative effect of the following:

i) chronic mechanical low back pain with symptoms of sciatica

ii) chronic right later epicondylitis

iii) right rotator cuff tendonitis

iv) chronic headaches with cervical myofascial pain

v) anxiety disorder

vi) adjustment disorder, and

vii) major depression.

I accept the argument from the worker representative that the significance of the non-work-related injuries to the CPP disability benefit allowance merits reducing the CPP offset by one-third. In support of the worker’s application, Dr. Fernande noted the worker’s ongoing complaints of right lateral elbow pain with painful pronation and supination, and right shoulder pain and stiffness with restricted abduction, and internal/external rotation. They also documented that the worker experiences frequent headaches with accompanying cervical myofascial pain. Reports from the worker’s psychiatrist, Dr. Hanick, were also submitted in support of the worker’s CPP disability benefit application; however, these largely focus on the worker’s compensable psychological and low back issues.

The worker’s CPP disability benefits were allowed through a reconsideration decision. That decision in part made note of the worker’s chronic headaches with cervical myofascial pain, chronic right lateral epicondylitis, and chronic right rotator cuff tendonitis – ultimately concluding that the worker has multiple medical conditions that result in them being unable to work. Functional limitations were documented in the application to include sitting, standing, walking, lifting, carrying, reaching, personal care, and household chores. There is also mention of a very substantial disability of the right upper hand.

While there is also considerable mention throughout the CPP disability benefit application, supporting documentation, and reconsideration decision, of symptomology and impairment associated with the worker’s compensable low back and psychological injuries, the evidence clearly supports that the worker was awarded CPP disability benefits for both work-related and non-work-related injuries. I find that a 67% CPP disability benefit offset appropriately captures the contribution of the work-related injuries in the CPP disability benefit allowance, and an adjustment to the existing offset should be done accordingly.

2. Psychotraumatic Disability NEL Quantum

A NEL benefit is intended to compensate workers for the effects of a 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).

The AMA Guides outline four areas of functional limitation that 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 of the AMA Guides lists these four areas of function in association with five classes of impairment ranging from no impairment (Class 1) to extreme impairment (Class 5). While the AMA Guides do not outline specific rating ranges for any of the five classes, Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders, details five progressive rating classes for mental and behavioural disorders. These range from Class 1 where there is no psychological impairment, to Class 5 where the impairment is extreme to the degree that the worker is unable to care of themselves in

any situation or manner and there are severe emotional disturbances that continually danger the worker or others.

When considering a psychological rating, it is important to note that while an individual could potentially demonstrate symptoms attributable to multiple classes outlined in the policy, the rating is determined by which class in the rating scale most closely resembles an individual’s overall level of impairment.

The worker’s 25% psychological NEL benefit represents a Class 3 rating. Class 3 is defined as a moderate impairment that is compatible with some but not all useful functions, and ranges from 20% to 45%.

Policy 18-05-11 details the following regarding a Class 3 impairment:

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 a 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.

The best available medical evidence to rate the worker’s NEL benefit for psychotraumatic disability consists of psychiatrist Dr. Hanick’s clinical notes. I afford the most weight to the clinical notes from 2018 because this evidence is closest to the determined date of maximum psychological recovery. I rely heavily on Dr. Hanick’s reporting in determining the worker’s NEL rating.

Activities of daily living

As noted in Policy 18-05-11, at the lower range of a Class 3 impairment, a worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and they become more dependent on family members in all activities. At the higher range of a Class 3 impairment, everyday activities are restricted to such an extent that a worker may be frequently homebound or roombound.

The worker no longer works; however, they are not medically required to have supervision or direction in their activities of daily living. Dr. Hanick’s reporting does not suggest they are homebound or roombound.

On August 1, 2018, it was noted the worker’s wife would be taking them on a trip to Europe for four weeks. While by September 1, 2018, the worker indicated they were not back in their city and staying at home, the reporting from 2018 suggests they go out for walks and attend therapy twice weekly.

In arguing that the worker’s functioning in activities of daily living warrants an upper-range Class 3 rating, the worker representative references 2014 reporting from Dr. Hanick where the worker indicated they could no longer carry out tasks like taking care of snow and grass outside, and that they were walking only 15 minutes at a time. This evidence is from a significant period of time prior to the date of maximum psychological recovery, and the worker’s function in this regard is suggested to be associated with impairment from their organic injury. I note that by September 18, 2015, the worker reported to Dr.

Hanick that they were exercising for almost two hours daily. I find the worker’s impairment associated with their permanent psychological injury as it relates to their activities of daily living is in the lower range of Class 3.

Social functioning

The worker is noted to socialize within their community. Their relationship with their spouse is generally indicated to be supportive, though they have some marital strains. On July 23, 2018, the worker was noted to be withdrawn. The worker noted that they love their family and their wife was described as competent and trustworthy. Their older son wanted to take the worker away in two weeks, though the worker indicated they were embarrassed by their need to get help from their children.

They were seen on August 1, 2018, on a semi-urgent basis when their wife called after the worker had stated they did not know the purpose of their life. There is no indication in Dr. Hanick’s reporting that psychologically the worker is unable to communicate with others.

The lower range of a Class 3 impairment involves definite limitations in social and personal adjustment within the family, which is evidenced in this case; however, the worker is not isolated nor generally withdrawn from their family. At the higher range of a Class 3 impairment, there is an incipient breakdown of social integration and longer episodes of depression. On some visits with Dr. Hanick, the worker’s mood is noted to be very low. On others, such as the visit on November 21, 2018, their mood is noted to be far better. On this particular visit, the worker rated their mood at a 7/10 and indicated it had impored after a change in pain medication. I find the worker’s impairment associated with their permanent psychological injury as it relates to their social functioning is in the lower range of Class 3. I respectfully disagree with the worker representative that the worker’s social impairment should be characterized as severe.

Concentration, persistence, and pace

Dr. Hanick’s reporting notes a variance in the worker’s concentration levels depending on the day. On September 11, 2018, for example, the worker was having problems with sleep, and in turn, their energy and concentration had diminished, though they retained their appetite. By October 3, 2018, the worker’s sleep had improved and their concentration was described as “so-so,” although they continued to be tired. On November 21, 2018, they described their concentration as “alright.”

The worker retains a driver’s license and can manage their medication regime and appointment calendar. While the medical reporting clearly supports problems with fatigue and issues with concentration, it does not support these issues are severe. I find the worker’s impairment associated with their permanent psychological injury as it relates to their social functioning is in the lower range of Class 3.

Adaptation to stressful situations

The worker’s mood is noted to vary both with pain and life stressors. There is little indication of anxiety issues noted in the medical reporting near the time of maximum psychological recovery; however, their medication regime included an anxiolytic. While the medical reporting indicates the worker has struggled with coping with their pain and stressors in life, it does not support they have a significantly diminished stress tolerance on a regular basis. I find the worker’s impairment associated with their permanent psychological injury as it relates to their stress adaptation is in the lower of Class 3, as they have a moderate emotional disturbance under stress.

Rating within Class 3

I find the totality of the evidence supports the worker’s permanent psychological impairment warrants a rating in the lower range of Class 3. The worker lacks most of the characteristics in the higher range of impairment. For example, the evidence does not support they have severe noise intolerance, a phobic pattern or conversion reaction with some bizarre behaviour, psychosis, active suicidality, or severe isolation to the degree of being homebound or roombound.

Respectfully, I do not accept the worker representative’s argument that the worker’s NEL benefit was effectively reduced twice by the NEL Clinical Specialist through the approach of combining rather than simply adding impairment values, and by not considering the impact of the worker’s low back injury on their activities of daily living when determining their NEL benefit for psychotraumatic disability. The AMA Guides is the statutory rating schedule and requires the use of the Combined Values Chart. Adding values that should be combined would cause an inflated rating that in some cases could even result in a NEL quantum exceeding 100%.

There are separate and discrete compensable low back and psychological injuries in this case; therefore the Combined Values Chart applies. This is not a scenario where the nature of the impairments overlaps so closely in time and symptoms that it is not possible to separate the cause of the symptoms. It is both possible and necessary to only account for the impairment associated with the worker’s psychological injury when rating their NEL benefit specifically for psychotraumatic disability – including on their activities of daily living. This approach does not result in any unjust deflation of the worker’s NEL benefit, but instead accounts for the discrete psychological injury actually being rated in the decision before me. I find the 25% NEL rating accurately reflects the worker’s permanent psychological impairment.

CONCLUSION

The worker’s objection is allowed in part.

1. 67% of CPP disability benefits should be offset from the worker’s LOE benefits – reducing the current offset by one-third to account for the contribution of non-work-related injuries to the CPP disability benefit allowance.

2. The quantum of the worker’s NEL benefit for psychotraumatic disability is confirmed at 25%.

DATED November 14, 2023

Candice Kish

Appeals Resolution Officer Appeals Services Division