DECISION NUMBER:

20240022

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

D. BOWKER, APPEALS RESOLUTION OFFICER

FEBRUARY 26, 2024

ISSUE

The worker is objecting to the non-economic loss (NEL) clinical specialist’s August 16, 2023 decision that determined the worker was entitled to a 10% permanent impairment rating for their sleep apnea.

BACKGROUND

On September 15, 2015, this shipper was assisting in unloading a 400-pound oven from a delivery truck when it unexpectedly slipped forward and fell from the truck, striking them first on the face before falling on top of the worker.

This claim was established for ten rib fractures, small hematomas within the posterior paraspinal muscles at T6 and T8, T12 fracture involving transverse processes, lamina, and bilateral facets, left anterior knee laceration, left femoral condyle fracture, left medial malleolar fracture, left medial orbital fracture, nasal bone fracture, dental treatment and a one-time replacement of eyeglasses. The worker subsequently received entitlement to psychotraumatic disability and a worsening of their pre-existing sensorineural hearing loss and tinnitus.

The worker did not make a full recovery from the injuries to their spine, left knee, left ankle, nose and psychological injuries. The worker received a 48% NEL permanent impairment rating for these injuries and a disfigurement rating.

The worker representative requested entitlement to sleep apnea on May 23, 2023. The case manager referred the worker’s claim to the medical consultant for their clinical opinion regarding whether the sleep apnea resulted from the workplace injuries the worker sustained in 2015. Following their review of the clinical evidence, the medical consultant opined as the work-related injury involved facial fractures, it was likely to be a significant contributing factor to the worker’s sleep apnea.

The case manager granted entitlement to sleep apnea on June 15, 2023 and determined the worker had achieved maximum medical recovery as of March 1, 2020. They referred the claim to the NEL clinical specialist to assess the worker’s permanent impairment rating.

The August 16, 2023 decision determined the worker was experiencing a slight interference with daily activities equalling a 10% area specific whole person rating. This was combined with the previous 48% NEL rating the worker had previously received for a total combined value of 53%. The previous 48% rating was subtracted from the new combined value of 53% to arrive at a 5% rating for the worker’s sleep apnea.

The objection to the NEL quantum for the worker’s sleep apnea forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

18-05-03 Determining the Degree of Permanent Impairment

November 3, 2014

18-05-04 Calculating NEL Benefits

February 1, 2018

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. I find there is no change in the worker’s NEL quantum. My reasons for this finding follow.

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).

Worker Position

The worker representative submits the worker’s permanent impairment rating should be increased from 10 to 20% as their sleep apnea significantly impacts their daily functioning.

The representative notes Dr. Rosenberg’s March 7, 2020 report confirmed the worker had a severe degree of obstructive sleep apnea resulting in severe daytime fatigue. The representative submits the worker’s fatigue impacts their daily functioning.

The worker representative further notes Dr. Pilowsky’s April 28, 2020 report noted the worker was incapable of participating in heavy household tasks due to low motivation, fatigue and difficulty coping with pain. Additionally, Dr. Pilowsky noted the worker was incapable of concentrating and focusing for prolonged periods on tasks such as making a cup of tea, reading or watching television.

The representative submits this clinical evidence demonstrates a significant impairment in the worker’s cognitive functioning due to decreased mental alertness and fatigue caused by their severe sleep apnea.

The worker representative is seeking an increase in the worker’s rating to 20% in recognition of reduced daytime alterness due to sleepiness or sleep episodes, or disturbed nocturnal sleep affecting complex integrated cerebral functions that require some supervision to carry out activities of daily living.

Assessment of the Evidence

After my review of the available claim file evidence, the submissions from the worker representative and policy 18-05-03 Determining the Degree of Permanent Impairment, I find there is no change in the worker’s NEL quantum.

WSIB policy 18-05-03 Determining the Degree of Permanent Impairment states a worker who has a work-related permanent impairment is entitled to a non-economic (NEL) benefit based on the degree of their work-related permanent impairment determined by the decision-maker.

The case manager relied upon the January 7, 2020 sleep consult by Dr. Rosenberg stating the worker’s clinical picture was consistent with severe obstructive sleep apnea with significant daytime fatigue and mild passive sleepiness.

The case manager also relied upon the medical consultant’s clinical opinion that although obstructive sleep apnea is multi-factorial and there were several non-occupational influences likely contributing to the worker’s condition, the workplace injury resulted in significant facial trauma resulting in persistent structural impairment with well-documented effects on the worker’s breathing.

I note psychologist Dr. Pilowsky’s April 28, 2020 letter diagnosed moderate somatic symptom disorder with predominant pain, major depressive disorder, single episode, severe, and post-traumatic stress disorder. The worker was incapable of participating in activities commonly encountered in daily life, unable to complete heavy household tasks and very limited to light tasks due to fatigue, low motivation and difficulty coping with pain.

The worker’s claim was referred to the NEL clinical specialist for a permanent impairment rating. The clinical specialist noted the worker was diagnosed with severe obstructive sleep apnea following the December 9, 2019 sleep analysis study.

The NEL clinical specialist noted the worker normally went to bed around 10 pm with a sleep latency of 30-60 minutes and awoke between 6:00 and 6:30 am with the aid of an alarm. The worker noted they were usually tired in the morning and would fall asleep for approximately 20 to 30 minutes a few times per week in the afternoon. The worker indicated they felt tired most of the time, even when not overly drowsy but denied any sleepiness while driving.

The sleep apnea with daytime fatigue with an impact on activities of daily living was assessed based on the AMA Guides section 4.1a The Brain –Sleep and Arousal Disorders. That section recommended a 10% whole person impairment based on reduced daytime alertness due to sleepiness or episodes or disturbed nocturnal sleep affecting complex integrated cerebral functions but an ability to carry out most activities of daily living.

I note the NEL clinical specialist reviewed the worker representative’s submission and indicated an increase would not be warranted as the limitations to the worker’s activities of daily living were already captured in the NEL rating for their psychological impairment. The clinical specialist further noted that to support an increase to 20%, the AMA Guides direct there must be evidence excessive sleepiness was

affecting the worker’s complex integrated cerebral functions such that they required supervision to carry out their activities of daily living.

In this case, I must agree with the NEL clinical specialist. While it is undisputed the worker has severe sleep apnea, the purpose of the permanent impairment rating for the worker’s sleep and arousal disorder is to compensate for the medically measurable impairment resulting from their sleep apnea. The worker’s limitations resulting from low motivation, fatigue and difficulty coping with chronic pain have been adequately captured in the permanent impairment rating related to their psychological condition.

I must also agree there is no clinical evidence demonstrating the worker’s sleep apnea causes them to require supervision to carry out their activities of daily living or precludes them from completing this entirely.

I therefore find the impairment rating accurately reflects the worker’s permanent impairment for their sleep apnea.

CONCLUSION

The worker’s objection is denied. I find there is no change to the NEL benefit.

DATED FEBRUARY 26, 2024

D. Bowker

Appeals Resolution Officer Appeals Services Division