Worker v. Employer, 2024 CanLII 140471

20250002

REPRESENTED by:

HEARD by:

DATED:

OCTOBER 31, 2024

ISSUES

The worker through their representative objects to the following decisions:

The Case Manager’s (CM) decision dated September 28, 2023, which offset of 100 percent of Canada Pension Plan (CPP) disability benefits from the worker’s full loss of earnings (LOE) benefits as of January 13, 2017. The decision was reconsidered on May 10, 2024, and upheld.
The Non-Economic Loss (NEL) Clinical Specialist’s (NCS) decision dated May 10, 2024, which determined the quantum of the NEL award for the worker’s psychotraumatic disability condition to be rated at a 30 percent impairment. The decision was reconsidered on August 2, 2024, and upheld.

BACKGROUND

The history of this claim has been documented in several prior Appeals Resolution Officer (ARO) decisions dated June 30, 2016, June 7, 2019, and August 24, 2023, and the June 30, 2020, Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision, and therefore will not be repeated. As such, I will only provide a brief history in order to place the issue under appeal into context.

On October 29, 2014, this general labourer suffered an injury to their right shoulder when scaffolding dislodged and a bundle of planks weighing more than 50 pounds each fell from above, striking the worker’s right shoulder. The worker was taken to an emergency department wherein they underwent diagnostic tests of the shoulder. The worker returned to work the following day, performing light duties and did not suffer any wage loss.

Entitlement was accepted for a right shoulder strain and an ARO determined that the strain resolved by July 2, 2015; however, on June 30, 2020, the Vice-Chair in the WSIAT decision found that while the

worker reached maximum medical recovery (MMR) on that date, there was evidence of a permanent impairment.

The WSIAT decision of June 30, 2020, concluded that the worker suffered a permanent impairment of the right shoulder, and that the worker would be entitled to a Non-Economic Loss (NEL) award. In August 2020, the worker was entitled to seven (7) percent for their permanent right shoulder impairment. The Vice-Chair directed the Workplace Safety and Insurance Board (WSIB) to reconsider entitlement of psychotraumatic disability or Chronic Pain Disability (CPD) entitlement.

Correspondence dated July 16, 2020, outlined that the employment relationship was terminated on August 4, 2015, due to a shortage of work.

Entitlement was subsequently extended under the Psychotraumatic Disability for the diagnoses of persistent depressive disorder and persistent major depressive episode.

In the ARO decision of August 24, 2023, the ARO concluded that the worker achieved MMR for the psychological condition as of September 22, 2022, and that the worker is entitled to a NEL assessment for the psychological condition, and full LOE benefits is in order from August 4, 2015, until the worker reaches age 65.

On September 2023, the worker was rated with a 15 percent NEL benefit for their persistent depressive disorder; somatic symptom disorder.

In implementing that ARO decision of August 2023, the CM decision dated September 28, 2023, offset 100% of CPP disability benefits from the worker’s full LOE benefits as of January 13, 2017 (the date the worker received their Notice of Entitlement from Service Canada) The decision was reconsidered on May 10, 2024, and upheld.

The worker representative objected to the NEL quantum of 15 percent for the worker’s psychological entitlement and the NCS conducted a reconsideration on May 10, 2024, of the worker’s psychological impairment and increased the quantum to a 30 percent psychological impairment.

The worker representative’s objections to both the September 28, 2023, and May 10, 2024, decisions now forms the basis of this appeal.

AUTHORITY

Workplace Safety and Insurance Act (WSIA), 1997. Section 43(1) and 43(5)

Operational Policy Manual

Published

18-01-13 Calculating CPP/QPP Offsets from FEL/LOE Benefits

February 15, 2013

18-05-03 Determining the Degree of Permanent Impairment

September 29, 2023

18-05-04 Calculating NEL Benefits

February 1, 2018

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.

Were the worker’s CPP disability benefits appropriately offset in the decision of September 28, 2023?

I have carefully considered all the available information within the claim file along with the appropriate operational policy. Regarding the issue of whether 100 % of the worker’s CPP disability benefits should have been offset from the worker’s LOE benefits, I do find in favour of the worker and conclude that the CPP disability benefits were not appropriately apportioned with policy. The following is my rationale.

On the Appeal Readiness Form (ARF) dated April 17, 2024, the representative objected to the offset of 100% of CPP disability benefits and positioned the decision-maker erred in their conclusions. The representative refers to the CPP disability Adjudication summary which indicates that the worker’s low back is a significant contributor to the worker’s overall disability and positions that the worker was receiving CPP disability for a combination of work-related and non-work-related injuries and that the quantum of the offset ought to be reduced by a third to account for the worker’s non-compensable back impairment.

The worker representative is seeking that the worker’s CPP disability benefits be offset by a third versus the current 100 percent offset.

The employer is not participating in this appeal.

Section 43(1) of the Workplace Safety and Insurance Act (WSIA) states a worker is entitled to compensation for loss of earnings arising from a compensable injury. In determining the appropriate amount of benefit entitlement, Section 43 (5) provides that the amount “must reflect any disability payment paid to the worker under the Canada Pension Plan.”

Precisely how CPP disability payments are to be taken into account is not made clear by the Workplace Safety and Insurance Act (WSIA). There is, however, WSIB policy that provides further guidance. I refer to policy 18-01-13 titled “Calculating CPP/QPP Offsets from FEL/LOE Benefits” for guidance in this appeal as policy stipulates when a worker receives both CPP disability benefits from the federal government and LOE benefits under the Act, 100% of the CPP benefits paid in relation to the

work-related injury is offset from the LOE benefits. Accordingly, if a worker’s CPP benefits are awarded on the basis of diagnoses stemming from a work-related injury, the entire CPP pension would be offset.

Policy 18-01-13 instructs the decision-maker to assess the medical significance of all the contributing injuries/diseases and assign 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.

In this case, entitlement has been accepted for a permanent impairment for a right shoulder;

post-traumatic mechanical aggravation of pain, which resulted in a 7 percent NEL benefit along with a permanent psychological impairment of persistent depressive disorder; somatic symptom disorder which resulted in a 30 percent NEL benefit, totalling a 35 percent whole person impairment.

The Service Canada Medical Report completed by Dr. Fernandez, the worker’s family physician on October 20, 2016, was sent in support of the worker’s CPP disability benefits application and confirmed the worker’s diagnoses as right rotator cuff tendinosis, right shoulder osteoarthritis acromioclavicular, mechanical low back pain, anxiety disorder, major depression and psoriasis and arthralgia as the medical conditions preventing the worker from returning to any kind of gainful employment.

Initially entitlement to CPP disability benefits were not allowed; however, a request for reconsideration from the worker was received on October 25, 2016, for a re-evaluation and on January 11, 2017; a Reconsideration Adjudication Summary was completed by the CPP Disability Medical Adjudicator (MA) who concluded that the severe and prolonged criteria were met. In the Reconsideration Adjudication Summary, the MA reviewed the medical reports from Dr. Fernandez, family physician, Dr. Kirwin, physiatry and Dr. Sanchez, psychiatry in reaching their conclusion.

The MA concluded in the Reconsideration Adjudication Summary report dated January 11, 2017, that the worker met the criteria of severe and prolonged disability as required by the CPP legislation. This summary indicated that this was due to the nature of the worker’s medical condition, their ongoing symptomology despite treatment, their work restrictions, poor prognosis, limited education, and their limited transferable skills it is not reasonable to expect the worker to pursue any type of work.

The report referred to the worker’s medical conditions of chronic right rotator cuff tendonitis, mechanical low back pain, anxiety disorder and major depression as the medical conditions impacting the worker’s ability to work.

Dr. Fernandez’s medical report of May 13, 2016, and October 20, 2016, detail that the worker’s mechanical low back pain has resulted with the worker having prolonged sitting, standing bending and lifting limitations, followed by stiffness and painful flexion. I note that the worker has no entitlement for a low back injury in this claim. Nevertheless, Dr. Fernandez’s reports also refer to the worker’s compensable chronic right shoulder which has restricted the worker’s use of their upper extremity and as the orthopaedic condition has not improved developed to anxiety and major depression, which in this case the worker has entitlement for the psychological condition. The worker’s right shoulder impairment presents substantial difficulty with mobilization, strength, flexibility and the use of the upper extremity and the worker’s psychological impediments also offer substantial disabling conditions in view of depression and generalized anxiety impeding the worker’ day to day overall function.

The physiatrist’s report of November 11, 2015, detailed the worker’s right anterior lateral shoulder pain due to work injury and that the worker has had cortisone shots which have not been effective followed by physical therapy.

The psychiatrist’s report of April 20, 2016, details that the worker has pain in their head and right shoulder which increases with movement.

In my review, I find that the worker has three (3) main conditions that were considered when the MA concluded that the worker’s met the criteria of severe and prolonged. I am therefore satisfied that a component of the worker’s CPP disability benefits was paid for their low back mechanical pain condition, which remains non-compensable and should be apportionment for the low back condition in the offset from their LOE benefits.

Further to policy 18-01-13, the criteria for apportioning CPP disability benefits remain an assessment of the medical significance of all the contributing injuries/diseases. The policy stipulates that the medical significance is to be weighed. I do agree with the worker representative and am satisfied that the worker’s non-compensable back condition was considered further to the Service Canada Medical Report submitted in consideration for CPP disability benefits and the Reconsideration Adjudication Summary report.

The medical evidence establishes that his compensable spinal and psychotraumatic impairments were the major factors in his inability to work after the accident. However, the medical evidence also

establishes that the hip conditions were a factor in his post-accident disability and in his lack of success in return to work and rehabilitation, albeit a factor of lesser importance than his compensable injuries.

In this case, I therefore find that the evidence establishes on the balance of probabilities that 66.66 % of the worker’s CPP disability benefits should be attributed to the worker’s compensable impairments and

33.33 % should be attributed to the worker’s non-compensable back condition. Therefore, one-third of the worker’s CPP disability benefits should be offset from the worker’s LOE benefits effective

January 13, 2017, when the worker was provided with a Notice of Entitlement from Service Canada.

Was the worker’s psychological NEL quantum appropriately determined as a 30 percent NEL benefit in the decision of May 10, 2024?

On the issue of whether the quantum of the NEL award for psychotraumatic disability is appropriate, I do not find for the worker. My explanation is as follows.

The worker representative in the submission dated September 6, 2024, submits that the worker’s

non-organic impairment be rated in the upper ranges of Class 3-moderate impairment as opposed to the mid-range Class 3 – moderate impairment determined in the decision of May 10, 2024.

The worker representative submits the NCS erred in their finding and positions that they did not place significant enough weight on the worker’s ongoing functional limitations, which represents in their view a clear failure to adapt to the stress of their permanently altered life circumstances that have left him essentially homebound. The worker representative seeks given that the worker continues to ruminate on their condition and their ongoing permanent limitations the worker’s non-organic impairment be rated in the upper ranges of Class 3 – Moderate impairment.

Therefore, for the purpose of this appeal, I must limit my consideration to whether the worker’s NEL quantum for their psychological condition was appropriately determined.

A prior ARO determined in the decision of August 24, 2023, that the worker be rated for a NEL assessment for their permanent psychological condition and that the worker reached MMR on September 22, 2022, with evidence of a permanent psychological impairment.

Generally, when calculating a NEL quantum, the NCS reviews medical reports as closely as possible to the MMR date achieved for the impairment, as these reports reflect as closely as possible the worker’s impairment at the time of MMR. In this case, I note the NCS outlined on November 18, 2020, the worker attended a Mental Health Comprehensive Assessment at the Mental Health Specialty Program.

Following the Community Mental Health Progress Report of May 14, 2021, documents a finding similarly documented in the November 18, 2020, assessment report. It is noted that the subsequent Community Mental Health Progress reports follow from the May 14, 2021, assessment up to and including the September 22, 2022, report; however, these three (3) reports appear lack the detail the initial assessment reports provide.

Therefore, for the purposes of rating the worker’s psychological impairment, I agree that it was appropriate for the NCS to use the findings within the May 14, 2021, Community Mental Health Program assessment to evaluate the worker’s psychological impairment. I note the subsequent reports continue to detail the worker has achieved minimal improvement with their mental health; however, these reports remain absent of clinical information to rate the psychological impairment and the May 14, 2021, is best used to capture the worker’s psychological impairment.

Policy 18-05-03 outlines that the degree of worker’s permanent impairment is determined by the prescribed rating schedule or criteria, any medical assessment, and having regard to the health information on file.

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 Associations Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).

The worker’s psychotraumatic NEL award is currently rated at the mid-range end of a Class 3, Moderate Impairment.

I refer to operational policy 18-05-11, titled “Assessing Permanent Impairment Due to Mental and Behavioural Disorders” which includes the following criteria describing a Class 3 psychotraumatic impairment:

Class 3, Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function

There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress.

In the lower range of impairment, the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes, and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.

The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.

In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even room bound at frequent intervals.

When comparing the medical reports contained in the file along with the NEL Evaluation rating completed by the NCS, I find the worker’s impairment has been correctly categorized as a 30 percent impairment, in the mid-range end of the Class 3 “Moderate Impairment” category.

A decision regarding NEL quantum for psychotraumatic disability is made by the presence or absence of various characteristics and behaviours listed under the various impairment classes. In order to avoid duplication, functional limitations due to physical impairments are not included in this rating, as the worker has been previously rated for the worker’s right shoulder further to the NEL decision of

August 17, 2020. As such, the functional limitations listed are specific to the work-related psychological impairment only.

In terms of the four (4) major areas of assessment when determining the extent of psychotraumatic disability, I have considered the available medical evidence within the claim file:

Activities of Daily Living

The Mental Health Specialty Program Assessment Form dated May 14, 2021, referenced the worker reported they have depressive symptoms make it difficult to function at home, and reports that due to their pain (bilateral shoulders and back), they are not able to engage in any household duties and initially at the time of the index incident, the worker resided along and was responsible for all household chores but now they live with their girlfriend and do not engage in any chores. The worker’s sleep remains inconsistent as difficulties with sleep initiation and maintenance are present due partly to stress and excessive rumination about the repercussions of the accident. The worker experiences significant daytime fatigue yet does not nap during the day.

The same psychological report of May 14, 2021, details the worker reports being socially withdrawn and isolated as they prefer to stay home which as result the worker’s relation with their girlfriend, family and friends have been negatively affected and this continues to distress the worker. The worker shares they no longer enjoy talking to other on the telephone. The report outlines the worker finds themselves getting easily angered irritable and impatient.

The medical documentation outlines the worker resides with their girlfriend, who is a support for them.

Concentration, Persistence, and Pace

The clinical documentation supports that the worker has difficulty with maintaining attention, focusing, following instructions, making decisions, and following conversations. In addition, the worker is easily distracted while completing tasks and has become more forgetful, needing reminders to complete tasks. During the assessment the worker responded directly and appropriately to the Psychologist. The psychologist detailed that the worker was oriented to person, place, and time and did not have any significant cognitive impairment.

Adaptation to Stress

The documentary evidence confirms the worker continues to have emotional distress under ordinary circumstances as the worker reported that their mood has been negatively impacted as a result of his physical injuries and physical limitations.

The worker reports a past suicidal ideation; however, now adamantly denied suicidal ideation, intent or plan. The worker reports that they cry often as their pain makes them feel depressed. Minimal improvement of their psychological impairment over time with treatment. Emotional difficulties include severe depressive symptomatology and anxiety. The worker has not returned to work in part due to their depression and reports low mood and motivation.

I note the report remains absent of evidence of delusions or perceptual abnormalities, movement disorder or reports of physical aggression. Moreover, no reported symptoms of generalized anxiety and

over the course of treatment has been able to describe an ability to use some strategies to adapt to different stressors or change.

In my review, the evidence demonstrates that the worker has a degree of impairment to complex integrated cerebral functions where the impairment levels are compatible with some but not all useful function, yet the worker does not require supervision and/or direction of activities of daily living.

However, the medical reports do not support a definite deterioration in family adjustment, incipient breakdown of social integration, severe noise intolerance, conversion reaction, bizarre behaviour, phobic pattern or clear indication of psychological regression. I note the worker resides with their girlfriend who remains a support for him, and she also attended the assessment with him.

Based on the available information before me, the worker’s symptoms of difficulty with sleep initiation and maintenance and emotional difficulties confirm their symptoms remain in the mid-range end of the moderate impairment class. There is no medical reporting indicating that the worker requires supervision and/or direction as would be seen in the higher range of the moderate impairment class.

While the worker reports being socially withdrawn and isolated as they prefer to stay home, I was not referred to any medical evidence of the worker having difficulties communicating with others. The psychologist noted in the September 24, 2021, report that the worker speaks to their friends over the phone once in a couple of months and I note the worker was able to attend regularly scheduled treatment sessions. Furthermore, there is no evidence of symptoms of psychosis, agitation and psychomotor retardation.

There was no evidence of any movement disorder or tremors. The worker is not in the higher range of the moderate impairment as there is no definite deterioration in family adjustment, as there is no indication that the worker has become more dependent on family members in all activities of daily living as a result of their psychological impairment. As well, no severe noise intolerance, phobic patterns, conversion reactions, or any surfacing bizarre behavior have been identified in any of the clinical reports. As such, I am not satisfied that the worker’s everyday activities are restricted to an extent that they are homebound, or room bound. Of significance, in the November 12, 2021, psychological report outlines that the worker start to go for walks which in my view does not leave them homebound or room bound as positioned by the worker’s representative.

The worker's thought form is logical, and as they presented as oriented and there was no perceived impairment in insight, judgement, capacity or reliability noted by the treating psychologist.

I note in assessing permanent impairments due to mental and behavioural disorders; Operational Policy 18-05-11 only provides guidelines for assessing a worker’s impairment and it is not a checklist. In reviewing the documents in the file and comparing the evidence in the documents with the guidelines in policy 18-05-11, I find the worker has an impairment of moderate severity as I find the worker’s impairment level is compatible with some but not all-useful function. As such, I find the worker has a Class 3 “Moderate Impairment” that falls within the mid-range of the impairment rating criteria.

Based on my analysis of the worker’s activities of daily living, social functioning, concentration, persistence and pace, and their adaptation to stressful circumstances, I find that the worker’s psychotraumatic disability is best categorized in the mid-range of the “Moderate Impairment”

class. Consequently, having regard for the evidence on file and the relevant policy, I am satisfied with the NEL quantum of 30 percent appropriately reflects the worker’s psychological impairment.

As per the AMA Guides, when a worker receives NEL benefits resulting from multiple areas of injury, these benefits must be ‘combined’, not added. The method for combining impairments is based on the principle that each impairment acts not on the whole person, but only on the remaining portion after prior impairments are considered. The values are combined using the following formula: A% + B% (100% - A%) = the combined value of A% + B%, where A and B are the impairment ratings for two separate injuries. The AMA Guides provide a Combined Values Chart (pages 254-256) for ease of calculation.

The combination of values ensures the total impairment will not exceed 100% whole person impairment. Therefore, based on the previously paid 7% NEL (right shoulder) combined with the 30% NEL (psychiatry) the worker has a 35% whole person impairment.

I have reviewed the NEL calculations and found them to be correct. I am satisfied the information on record supports the NCS decision of May 10, 2024, and I find no basis to alter the decision of the NCS, as the medical evidence on file supports further to policy.

The worker’s objection is denied regarding the NEL quantum for their psychological permanent impairment.

CONCLUSION

Based on the above, I find:

One-third of the worker’s CPP disability benefits should be offset from the worker’s LOE benefits effective January 13, 2017, when the worker was provided with a Notice of Entitlement from Service Canada to age 65 as the worker received entitlement to CPP disability in part for a non- compensable back condition.
The worker’s permanent psychological NEL quantum rated at 30 percent.

The objection is allowed-in-part.

DATED OCTOBER 31, 2024

S. DiCarlo

Appeals Resolution Officer Appeals Services Division