APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230037
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
REPRESENTED by:
employer representative
HEARING:
VIDEOCONFERENCE – february 9, 2023
HEARD by:
c. goegan, appeals resolution officer
ADDITIONAL ATTENDEES:
langugage interpreter
february 24, 2023
ISSUES
The worker is objecting to the following decisions:
The quantum of the Non-economic Loss (NEL) benefit for a left ankle impairment that the NEL Clinical Specialist determined to be 4% in a September 18, 2020 decision.
The March 30, 2021 decision of the Case Manager granting temporary entitlement to an adjustment disorder with mixed anxiety and depressed mood.
The October 20, 2021 decision of the Case Manager determining the worker no longer met the criteria for entitlement to a psychotraumatic disability.
The April 1, 2022 decision of the Return to Work (RTW) Specialist concluding the worker was not co-operating in RTW activities.
The May 20, 2022 decision of the Case Manager adjusting the LOE benefits from
February 14, 2022 based on the determined full-time (40-hours per week) entry-level wages of
$15 per hour for the suitable occupations (SOs) of Electronics Assembler and Customer Service Representative.
BACKGROUND
On March 8, 2018, this production worker twisted their left ankle when they stepped on a slippery spot on the floor while walking back to the production area after a coffee break. The worker sustained a bi-malleolar fracture of the left ankle and underwent open reduction and internal fixation surgery the same day.
The Operating Area approved the claim and the worker received full loss of earnings (LOE) benefits until August 21, 2018 when they returned to modified duties. They participated in a graduated return to work program and received partial LOE benefits until they reached full hours on November 5, 2018.
The worker stopped working on June 26, 2019 and claimed a worsening in their condition. The Case Manager denied entitlement to LOE benefits and determined the worker had fully recovered from the work-related left ankle injury. In a July 16, 2020 decision, an Appeals Resolution Officer (ARO) granted the worker entitlement to LOE benefits from June 26, 2019 to October 22, 2019 and a NEL determination for a permanent left ankle impairment. The ARO left entitlement to LOE benefits beyond
October 22, 2019 to the discretion of the Operating Area.
In a September 18, 2020 decision, the Non-economic Loss (NEL) Clinical Specialist determined the quantum of the NEL award for the permanent left ankle impairment was 7%. As the worker had previously received a 45% NEL award in another claim the NEL Clinical Specialist combined (not added) 45% and 7% and the result was a 49% NEL award. The NEL Clinical Specialist subtracted 45% from 49% and the result was a 4% NEL benefit in the present claim.
The worker continued receiving full LOE benefits beyond October 22, 2019 and the Case Manager initiated RTW services, as suitable work was not available with the employer.
The worker requested entitlement to a psychological condition and in a March 30, 2021 decision, the Case Manager approved temporary entitlement to an adjustment disorder with mixed anxiety and depressed mood. He also concluded the worker was partially impaired with no specific psychological restrictions. In a subsequent decision dated October 6, 2021, the Case Manager concluded the worker no longer met the criteria for entitlement to a secondary psychological condition under the applicable WSIB policy.
The worker left Canada on November 21, 2021 and returned to the country on January 31, 2022. When they returned to the country, RTW services resumed and the worker was scheduled to participate in English as a second language (ESL) training from February 14, 2022 to May 6, 2022. The worker attended ESL training for one day and stopped participating in RTW services.
In an April 1, 2022 decision, the RTW Specialist concluded the worker was not co-operating in RTW activities. They also confirmed the worker had seven days to begin co-operating or face a penalty consisting of a reduction or suspension of LOE benefits. RTW services were subsequently closed and in a May 20, 2022 decision, the Case Manager adjusted the LOE benefits based on the determined full-time (40-hour per week), entry-level wages of $15 per hour (minimum wage) for the suitable occupations (SOs) of Electronic Assembler and Customer Service Representative.
The worker objected to the September 18, 2020 decision of the NEL Clinical Specialist, the
March 30, 2021 and October 20, 2021 decisions of the Case Manager and the April 1, 2022 decision of the RTW Specialist and the matter was referred to the Appeals Services Division for consideration
AUTHORITY
Operational Policy Manual
Published
11-01-05 – Determining Permanent Impairment
November 3, 2014
15-04-02 – Psychotraumatic Disability
September 7, 2018
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
18-05-03 – Determining the Degree of Permanent Impairment
November 3, 2014
19-02-08 – RTW Co-operation Obligations
November 30, 2020
19-02-10 – RTW Assessments and Plans
November 30, 2020
Rating Schedule:
To rate permanent impairments, the WSIB uses a prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find:
o The NEL quantum for the left ankle impairment is 8% but there is no increase to the total quantum of the 49% NEL award.
o The March 30, 2021 decision granting temporary entitlement a psychotraumatic disability for the diagnosis of an adjustment disorder with mixed anxiety and a depressed mood is appropriate but the worker does not have entitlement to a permanent impairment for a psychotraumatic disability.
o The worker is entitled to partial LOE benefits from February 14, 2022 based on the part-time (20 hours per week) entry-level wage of $15 for hour for the SO of Electronics Assembler or Customer Service Representative.
The Worker’s Position
At the hearing, I granted the worker representative’s request to provide their closing arguments in writing. In submissions dated February 9, 2023, the representative indicated they were not providing specific written information to increase the NEL quantum for the left ankle but wanted to highlight the worker’s physical limitations in relation to the injury.
The representative argued the worker’s psychological impairment is permanent. Alternatively, the representative argued that the worker is entitled to benefits for a somatic symptom disorder under the WSIB’s chronic pain disability (CPD) policy. With respect to the worker’s ability to return to work, the representative argued the worker’s limited physical ability, inability to take public transportation, psychological symptoms and inability to communicate effectively in English render them unable to obtain a job in customer service.
The NEL Quantum
As the worker’s representative did not provide any arguments explaining how the NEL quantum was incorrectly calculated, I completed my own assessment of the evidence.
Based on the evidence before me, I find that the quantum of the NEL award for the left ankle impairment is 8% but there is no increase in the total amount of the worker’s 49% NEL award.
According to Policy 18-05-03 (Determining the Degree of Permanent Impairment), the NEL benefit compensates workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The benefit is payable to the worker regardless of whether the worker experiences any wage loss because of the injury.
To rate permanent impairments, the WSIB uses a 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).
Based the AMA Guides, decision-makers consider the following criteria when establishing NEL ratings for ankle impairments:
o Abnormal motion
o Neurological disorders
o Vascular disorders
I find it appropriate to assign a 15% impairment rating for abnormal motion of the left ankle, which is consistent with the impairment rating assigned by the NEL Clinical Specialist. In the July 16, 2020 Appeals decision, the Appeals Resolution Officer determined the worker had a permanent left ankle impairment based on the results of an October 22, 2019 examination completed by Dr. Desai, an orthopedic surgeon at the WSIB Lower Extremity Specialty Clinic.
In the October 22, 2019 Specialty Clinic report, Dr. Desai provided the following range of motion measurements for the left ankle:
o Dorsi-Flexion – negative 15 degrees
o Plantar-Flexion – 30 degrees
o Inversion – 20 degrees
o Eversion – 5 degrees
According to Table 37 (p. 66) and Table 38 (p. 67) in the AMA Guides, the range of motion measurements provided by Dr. Desai represent a 15% impairment for abnormal motion of the ankle.
I also found it appropriate to assign a 6% impairment rating for a peripheral nervous system disorder under Chapter 3 of the AMA Guides, which differs from the 2% rating assigned by the NEL Clinical Specialist.
In the October 22, 2019 Lower Extremity Specialty Clinic Report, the worker described a decreased sensation over the entire lower left leg while Dr. Desai reported they had a positive Tinel’s sign (a medical test that produces a “pins and needles” sensation by tapping the skin over a nerve) over the deep peroneal, superficial peroneal and sural nerves. The worker also had a series of nerve block injections into the superficial peroneal and sural nerves.
Table 51 (p. 77) of the AMA Guides indicates the maximum loss of function due to a sensory deficit, pain or discomfort involving the common peroneal nerve is 0% for the deep anterior tibial (below mid-shin) branch of the nerve and 5% for the superficial branch. Table 51 (p. 77) also indicates the maximum loss of function due to pain or sensory deficit for the sural (external saphenous) nerve is 5%. The AMA Guides require that once the maximum loss of function due to pain, sensory deficit or discomfort is determined for the applicable nerve, the degree of decreased sensation or pain is graded, using Table 10 (p. 42).
The maximum loss of function for the applicable nerve and the assigned grade are multiplied together to determine the impairment rating.
The NEL Clinical Specialist graded the worker’s impairment for loss of function due to pain and a sensory deficit as grade 2 using Table 10 (p. 42) of the AMA Guides, described as decreased sensation with, or without pain, which is forgotten with activity. In my view, however, the most appropriate grade for the worker’s left lower extremity impairment within Table 10 (p. 42) is grade 3, described as decreased sensation with, or without pain, which interferes with activity.
In the October 22, 2019 Specialty Clinic report, Dr. Desai indicated that while the worker did sustain a bad ankle fracture, their clinical symptoms, response to treatment and response to pain injections were not normal for the type of injury. He indicated the worker remained extremely pain focused and reported their symptoms were aggravated with activity. Therefore, based on the reporting of Dr. Desai at the time the worker reached maximum medical recovery, I find the most appropriate grade for the worker’s loss of function due to a sensory deficit, pain or discomfort involving the common peroneal and sural nerves is grade 3 as I find the worker’s pain is not forgotten with activity.
I then multiplied the maximum loss of function for both the common peroneal nerve (superficial branch) and the sural nerve by the maximum amount for a grade 3 impairment in Table 10 (60%) and the result was a 3% impairment for the common peroneal nerve (superficial branch) and a 3% impairment for the sural nerve. I combined the 3% impairment rating for the common peroneal nerve with the 3% impairment rating for the sural nerve using the Combined Values Chart (pp. 254-256) in the AMA Guides and the result was 6%.
I did not assign an impairment rating for loss of strength. In the October 22, 2019 Specialty Clinic report, Dr. Desai indicated the worker had previously demonstrated full strength of the left ankle on
June 21, 2019 and he stated the worker demonstrated self-limitations with strength testing in all planes due to pain in the left ankle. Accordingly, as the worker had previously demonstrated full strength of the ankle and self-limited due to pain on October 22, 2019, I find the loss of strength is due to pain as opposed to a motor deficit involving peripheral nerves. I also did not assign an impairment rating for a vascular deficit, as Dr. Desai did not identify a vascular deficit in the October 22, 2019 report.
I combined the 15% rating for abnormal motion with the 6% impairment rating for the loss of function due to pain and sensory deficit using the Combined Values Chart and the result was a 20% impairment of the left lower extremity. According to Table 46 (p. 65) of the AMA Guides, a 20% impairment of the lower extremity equates to an 8% impairment of the whole person.
I combined the 45% NEL award the worker received in the prior claim with the 8% NEL award in the present claim using the Combined Values Chart and the result is a 49% whole person impairment, which is consistent with the 49% award previously determined by the NEL Clinical Specialist. Therefore, while I find the quantum of the NEL award for the worker’s left ankle injury is 8%, I find there is no increase in the total quantum of the worker’s whole person NEL award.
Entitlement to a Permanent Psychotraumatic Disability
In submissions, the worker’s representative essentially agreed with the Case Manager’s March 30, 2021 decision to grant the worker entitlement to a psychotraumatic disability; however, they argued the condition was permanent. The representative argued the evidence supports that the diagnosis of an adjustment disorder with depression remains ongoing. They submitted the worker remains hopeless about their physical condition, which is a reinforcing factor to both depression and anxiety. The representative also argued the worker’s psychologist erred in diagnosing the worker with PTSD.
Alternatively, the representative argued there are grounds to consider entitlement to a somatic symptom disorder under the WSIB’s chronic pain disability (CPD) policy as the diagnosis has been present and confirmed throughout the worker’s treatment.
I find the March 30, 2021 decision granting temporary entitlement to a psychotraumatic disability is appropriate. I also find the worker does not have entitlement to a permanent impairment for a psychotraumatic disability.
Policy 15-04-02 (Psychotraumatic Disability) provides that if a psychological condition is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability developed within five years of the injury or the last surgical procedure. The policy states that a psychotraumatic disability is considered to be a temporary condition and is accepted as permanent only in exceptional circumstances.
Entitlement for any psychotraumatic disability may be established when the following circumstances exist or develop:
o Organic brain syndrome secondary to
Traumatic head injury
Toxic chemicals including gases
Hypoxic conditions, or
Conditions related to decompression sickness
o An indirect result of a physical injury
Emotional reaction to the accident or injury
Severe physical disability or impairment, or
Reaction to the treatment process.
o The psychotraumatic disability is shown to be related to extended disablement and to non- medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.
On November 1, 2018, the worker attended a psychological assessment with Dr. Pojhan, a psychologist at the WSIB Lower Extremity Specialty Clinic. In the report that followed the assessment, Dr. Pojhan diagnosed the worker with an adjustment disorder with both anxiety and depressed mood as well as a somatic symptom disorder with predominant pain. With respect to the worker’s psychological presentation, Dr. Pojhan indicated the worker’s presentation was more compatible with the diagnosis of an adjustment disorder with mixed anxiety and depressed mood and he opined the work-related injury was materially significant to that diagnosis. Dr. Pojhan also indicated that the worker presented with heightened levels of tense and discomforting foot pain and indicated the reported depressed mood and anxiety were contributing factors to the worker’s pain. Dr. Pojahn recommended cognitive behavioural therapy for the worker’s adjustment problems and indicated there were no permanent restrictions from a psychological perspective. With respect to co-morbid or pre-morbid psychological diagnoses, Dr. Pojhan indicated the worker had previously received psychological treatment as the result of non-work-related traumatic experiences, however, stated there was no information about the effects of those traumatic experiences on the worker’s current functioning.
I interpret Dr. Pojhan’s November 1, 2018 report to mean that the predominant psychological diagnosis was an adjustment disorder with both anxiety and a depressed mood. It is my understanding that an adjustment disorder refers to the development of emotional or behavioural symptoms in response to an identifiable stressor and individuals with an adjustment disorder can present with both anxiety and a depressed mood. It is also my understanding that once the stressor it its consequences have terminated, the symptoms do not persist for more than an additional six months.
I gave significant weight to the opinion of Dr. Pojhan as he is a psychologist at the WSIB Specialty Clinic that was specifically tasked with evaluating worker’s psychological symptoms and providing an opinion on their relationship to the work-related injury. As Dr. Pojhan opined the work-related injury was materially significant to the predominant psychological diagnosis of an adjustment disorder with anxiety and depressed mood and indicated there were no permanent psychological restrictions, I find the
March 30, 2021 decision granting temporary entitlement to a psychotraumatic disability is appropriate.
Policy 11-01-05 (Determining Permanent Impairment) states that impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss. A work-related impairment is considered to be permanent when it continues to exist after maximum medical recovery (MMR) has been reached. The policy defines MMR as a plateau in recovery where it is not likely that there will be any further significant improvement in the work-related injury.
To determine that permanent impairment exists, the decision-maker must confirm that:
o MMR has been reached
o Evidence of ongoing impairment exists, and
o The ongoing impairment is a result of the work-related injury.
After considering the evidence in the record and the worker’s testimony, I find the worker does not have ongoing entitlement to a permanent psychotraumatic disability. In reaching that conclusion, I took particular note of the following medical reports:
o In a WSIB Mental Health Specialty Program report dated December 27, 2018, Dr. Pojhan indicated the worker had attended six psychological treatment sessions and had demonstrated a significant improvement in mood after a few sessions. While he continued to endorse both the diagnosis of an adjustment disorder and a somatic symptom disorder with prominent pain he indicated both conditions were resolving.
o A February 14, 2019 report from Dr. Pojhan indicated the worker did not have any significant concerns with their employability other than some minor transient pain problems. He indicated the worker did not seem to be in need of further therapy, indicated no significant symptoms were reported and stated the worker was highly capable of returning to work in full capacity.
o A February 22, 2019 WSIB Lower Extremity Specialty Clinic report from Dr. van Vliet, an orthopaedic surgeon, indicated the worker reported constant left ankle pain. The report stated the worker did not present with any overt psychosocial issues. Dr. van Vliet did not identify any psychosocial factors impeding recovery and recommended the worker continue with a medical specialty pain consultation to address ongoing pain symptoms.
o In a March 29, 2019 Specialty Clinic report, Dr. van Vliet indicated the worker’s recovery was delayed by significant left ankle pain despite optimal therapy and surgical treatment. He indicated that based on the results of a screening questionnaire and clinical interview, there were no psychosocial concerns identified during the assessment.
o In a report dated June 21, 2019 Dr. van Vliet indicated the worker should continue with pain injections. He also suggested the worker talk to their family doctor for medication to help with pain.
o A July 17, 2019 chart note from Dr. Kirstine, the worker’s family doctor, described a post-accident, non-work-related change in circumstances. Dr. Kirstine indicated the worker was in a lot of pain from their ankle, was sleeping poorly because of pain and was feeling helpless and hopeless.
o A July 23, 2019 Specialty Clinic report from Dr. van Vliet stated the worker had continued working until July 17, 2019 when they were taken off work by their family doctor due to ongoing disability and complaints of severe pain.
o A December 24, 2019 medical application for Canada Pension Plan (CPP) Disability Benefits from Dr. Kirstine listed the worker’s medical conditions as a left ankle fracture, right shoulder tendonitis and De Quervain’s tenosynovitis. In a section of the medical application where
Dr. Kirstine was asked to provide other information, they indicated the worker also had depression and had been admitted to hospital for suicidal ideation.
o In an April 21, 2021 WSIB Community Mental Health Program (CMHP) Assessment form Dr. Pilowsky, a psychologist, diagnosed the worker with a somatic symptom disorder with
predominant pain with secondary depressive symptoms. In their report, Dr. Pilowsky indicated that psychologically, the worker complained of depressive symptoms secondary to pain limitations.
They described the worker’s perception of pain as severe and stated the worker’s psychological symptoms arose from their perception of pain.
o A September 27, 2021 report from Dr. Pilowsky had the diagnosis of somatic symptom disorder with predominant pain with secondary depressive symptoms. Dr. Pilowsky also endorsed the diagnosis of PTSD and identified it as a pre-existing condition. Dr. Pilowsky did not recommend any further psychological treatment and opined the prognosis for returning to work was poor due to the worker’s perception of severe disability, pessimistic future outlook, elevated pain perception, limited transferable skills, pre-existing anxiety, lack of English fluency and age.
In addition to the medical reports referenced above, I also considered the worker’s testimony at the hearing.
The worker testified that they initially attempted to return to work with the employer in a warehouse but found this difficult, as they had to sit and stand for long periods. They stated their current sitting tolerance is about ten minutes because of back pain. They testified that while performing modified duties with the employer, their spouse drove them to and from work and when asked whether they had any issues with driving, the worker testified that they get nervous while driving.
With respect to their mental health, the worker testified that they did not remember ever seeing a psychologist before the accident and was never off work due to mental health issues. They described attending school to learn English for one day but testified they did not continue because they could not sit or stand for long periods due to pain. The worker testified that during this time, their mental health was very bad and could not sleep or eat. They also testified that they were crying a lot and could not do anything because of back and ankle pain.
The worker testified that they continue to have issues at home because of their mental health. They indicated they used to be a very active person before the injury but is now unable to do anything because of their back and left leg pain. They stated they used to do everything but now their spouse does all of the cooking and cleaning. They described their relationship with their spouse as very good.
When asked to describe their activities during a typical day, the worker testified they wake at 5:00 am as they only sleep two hours per night. They explained that their spouse brings them for a 10-15 minute walk in the corridors of their condominium complex because their balance is bad. Afterward they had to lay down because of the pain. They then have lunch and watch television.
The worker testified that they have not continued in any treatment because they cannot afford it. They take medication for pain but does not take any medication for mental health and does not want to because they tried medication in the past and experienced side effects.
When considering the information in the record and the worker’s testimony I find the balance of the evidence establishes that the temporary psychotraumatic disability; diagnosed predominantly as an adjustment disorder with anxiety and depressed mood by Dr. Pojhan on November 1, 2018, resolved sometime after his February 14, 2019 report. Accordingly, I find the worker does not have entitlement to a permanent impairment for a psychotraumatic disability.
In the February 14, 2019 report, Dr. Pojhan indicated the worker did not report any significant psychological symptoms and described the adjustment disorder as resolving while Dr. van Vliet, despite recommending treatment for ongoing pain symptoms, did not identify any psychosocial concerns in his February 22, 2019 or March 29, 2019 reports. Dr. van Vliet later noted the worker stopped working due to complaints of severe pain when he evaluated them in July 2019.
The December 24, 2019 medical application for CPP Disability Benefits from Dr. Kirstine described depressive symptoms; however, they did not include the diagnosis of depression as one of the medical conditions on the application.
The worker testified at the hearing primarily about their functional difficulties in relation to their pain and the effect that pain has had on their personal life. When Dr. Pilowsky examined the worker in April 2021, they diagnosed a somatic symptom disorder with predominant pain and secondary depressive symptoms and reiterated that diagnosis in their September 21, 2021 report. I find it significant that Dr. Pilowsky, who is a psychologist, did not diagnose the worker with either an adjustment disorder, an anxiety disorder or a depressive disorder.
In their September 21, 2021 report, Dr. Pilowsky also included the diagnosis of PTSD and reported that condition was pre-existing. I do not agree with the representative’s argument that Dr. Pilowsky made an error when including the diagnosis of PTSD in the September 21, 2021 report as they provided a diagnostic code for the condition and specified that the condition was pre-existing. As Dr. Pilowsky did not provide any information in their report about the diagnosis of PTSD and stated it was pre-existing, I interpret the report to mean the diagnosis of PTSD is unrelated to the work-related accident or left ankle injury.
In my view, the balance of the evidence supports that the temporary psychotraumatic disability, first diagnosed with adjustment disorder with anxiety and depressed mood, resolved sometime after February 19, 2019. Accordingly, I conclude circumstances in the case are not exceptional, as described in Policy 15-04-02 (Psychotraumatic Disability) and the worker does not have entitlement to a permanent impairment for a psychotraumatic disability.
In their closing submissions, the worker’s representative presented an alternative argument that there are grounds to grant the worker entitlement to the diagnosis of somatic symptom disorder under
Policy 15-04-03 (Chronic Pain Disability). I note that Policy 15-04-03 (Chronic Pain Disability) states that as the clinical presentation of an individual with a somatic symptom or related disorder is virtually identical to that of an individual said to have chronic pain disability, cases of somatic symptom or related disorders are considered for entitlement under the CPD policy instead of Policy 15-04-02 (Psychotraumatic Disability).
Entitlement to benefits under Policy 15-04-03 (Chronic Pain Disability) is not properly before me in this appeal, as the Operating Area has not rendered a decision on entitlement to benefits for chronic pain disability. Accordingly, the worker’s representative remains free to raise the issue entitlement to benefits under Policy 15-04-03 (Chronic Pain Disability) with the Operating Area.
Co-operation in RTW Services and the Adjustment of LOE Benefits
After determining the worker does not have entitlement to a permanent impairment for a psychotraumatic disability, I next considered the adjustment of LOE benefits based on the determined full time (40-hours per week) entry-level wage of $15 per hour for the SOs of Electronics Assembler and Customer Service Representative.
According Policy 18-03-02 (Payment and Reviewing LOE Benefits), a worker is entitled to receive full LOE benefits if the nature of the injury completely prevents the worker from returning to any type of work. A worker who can return to some form of work is entitled to full LOE benefits if suitable work is not available providing the worker co-operates in health care measures and all aspects of the return to work process.
Workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits.
The policy lists examples as workers who return to work at reduced hours or wages and workers that are capable of work in a SO at earnings that are less than pre-injury average earnings.
When considering the evidence in the record and the worker’s testimony, I find the adjustment of LOE benefits from February 14, 2022 based on the determined entry-level wage of $15 per hour for the SOs of Electronics Assembler and Customer Service Representative is appropriate; however, I find the worker is only capable of part-time employment.
The worker testified at the hearing that before the accident, their spouse used to drive them to and from work. They explained they have since sold their vehicle and they have never taken public transportation. The worker also testified that before the injury, they previously performed work as a cleaner but could not recall the last time they worked before the accident. After the injury, they performed modified work with the employer until they sent them home. The worker also testified they did not receive assistance to look for another job and attended school for one day to learn English, but did not continue because they could not sit or stand for long periods. The worker also testified they have never returned to work and does not think they can return to employment because they cannot concentrate, feels frustrated and feels physically unable to work. The worker also testified that they travelled to Country A in November 2021 because their spouse thought it would improve their health being around family. They testified their spouse accompanied them on the trip and that while in Country A, they stayed with family. The worker also stated that while in Country A, they walked on the beach together and visited friends.
In regards to the worker’s physical ability to work, I note that in the October 22, 2019 Lower Extremity Specialty Program report Dr. Desai indicated that with respect to the left ankle injury, it was safe for the worker to continue with modified duties and hours within a sedentary physical demand capacity. He recommended that a RTW Specialist determine whether suitable modified duties were available with the employer, otherwise, he recommended the worker receive retraining. Dr. Desi recommended the worker limit walking and standing to 10-minute intervals and indicated the worker could sit up to 30 minutes with a position change. Based on the reporting of Dr. Desai at the time the worker reached MMR for the left ankle injury, I find the worker was physically capable of performing suitable work; however, given the significant restrictions on standing and walking confirmed by Dr. Desai, I find the worker is only capable of part-time work.
I acknowledge the worker’s perception that they feel physically unable to work due to pain and the September 27, 2021 report from Dr. Pilowsky stating the prognosis for returning to work was poor due to a number of factors that included the worker’s perception of severe disability, pessimistic outlook, elevated pain perception, limited transferable skills, pre-exisitng anxiety, lack of English fluency and age. However, as I determined the worker does not have ongoing entitlement to a psychotraumatic disability and entitlement to a permanent impairment for chronic pain disability is not before me in this appeal, my decision with respect to the worker’s organic left ankle impairment is that they are capable of returning to part-time suitable work.
The employer ultimately concluded they could not accommodate the worker with suitable job duties and a RTW Specialist attempted to determine a SO for the worker. The worker participated in Canadian Language Benchmark testing and was to participate in English as a second language (ESL) training until the RTW Specialist could determine an appropriate SO. Prior to the identification of a SO, however, the worker attended one class of ESL training for a brief period and according to a case file memo dated February 17, 2022 elected to forgo participation in RTW services because they did not have transportation to and from school and felt they could not sustain the four hour ESL classes.
In this case, while the worker does not believe they can return to any work, I find they did not make a reasonable attempt to participate in RTW services after it was determined suitable work was not available with the employer. The worker did not participate in RTW services and a thorough vocational assessment did not take place. There is no evidence to support the worker could not reasonably have acquired the requisite level of English or the skills necessary to secure part-time minimum wage employment as either an Electronics Assembler or a Customer Service Representative or in an any other elemental minimum wage occupation. As such, I find the decision to adjust LOE benefits from February 14, 2022 based on determined wage of $15 per hour for the SO of Electronics Assembler or Customer Service Representative is appropriate.
CONCLUSION
I conclude the following:
The NEL quantum for the left ankle impairment is 8% but there is no increase to the total quantum of the 49% NEL award.
The March 30, 2021 decision granting temporary entitlement a psychotraumatic disability for the diagnosis of an adjustment disorder with mixed anxiety and a depressed mood is appropriate but the worker does not have entitlement to a permanent impairment for a psychotraumatic disability.
The worker is entitled to partial LOE benefits from February 14, 2022 based on the part-time entry-level wage of $15 for hour for the SO of Electronics Assembler or Customer Service Representative.
As the Operating Area has not rendered a decision on entitlement to CPD, the worker’s representative retains the right to raise that issue with the Operating Area.
The worker’s objection is allowed in part.
DATED February 24, 2023
C. Goegan
Appeals Resolution Officer
Appeals Services Division