Estate of Worker v. Employer, 2025 CanLII 123893

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20250062

OBJECTING PARTY:

ESTATE OF WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT PARTY:

employer (not participating)

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

Neil Clark, appeals resolution officer

JULY 31, 2025

ISSUE

The worker, through their representative, objects to the Non-Economic Loss (NEL) Clinical Specialist’s June 2, 2023 decision, which determined that the quantum of the worker’s NEL benefit for their mixed dementia, Alzheimer’s disease, and vascular type dementia was 45%, prior to combining this NEL benefit with other prior NEL benefits.

BACKGROUND

In May 2016, the worker submitted a Worker’s Report of Injury, which identified that they had been exposed to McIntyre Powder during the course of their employment as an Underground Miner. The worker passed away on November 23, 2021. A second Worker’s Report of Injury was filed in

November 2022, by the worker’s estate, which stated that the worker had developed Alzheimer’s disease as a result of multiple head injuries while employed in various mines, as well as a work-related motor vehicle accident. In addition, the estate identified that the worker had developed bladder and kidney cancer due to occupational exposures.

A number of medical opinions were sought, and in their decision dated May 17, 2023, the Case Manager found that the worker did have entitlement to benefits for mixed dementia, Alzheimer’s disease, and vascular type dementia. They noted that these conditions could be attributed to prior head injuries that the worker had suffered during their employment. They stated that the date of accident was

May 15, 2015, while the worker’s maximum medical recovery date with a permanent impairment was

May 16, 2015. In regards to the worker’s Alzheimer’s and dementia, the Case Manager found that these conditions did not significantly contribute to the worker’s death and, therefore, there was no entitlement to survivor’s benefits. Within this decision, the Case Manager also confirmed that there was no entitlement to benefits for bladder or kidney cancer, as they were unable to establish that the worker’s exposures resulted in these diagnoses.

In their decision dated June 2, 2023, the NEL Clinical Specialist determined that the quantum of the worker’s NEL benefit for their compensable injuries was 45%, prior to being combined with previous NEL benefits that the worker had received. Once combined, it resulted in a 33% NEL benefit under this claim and a 59% NEL benefit across all claims. This decision was reconsidered on March 5, 2025, and upheld. The worker, through their representative, objected to the quantum of their NEL benefit, and this issue forms the basis of the appeal before me.

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 that the quantum of the worker’s NEL benefit for their mixed dementia, Alzheimer’s disease, and vascular type dementia is 50%, prior to combining this NEL benefit with other prior NEL benefits. Worker’s Position The worker, through their representative, states that they disagree with the quantum of their NEL benefit. They confirm that while they feel it was correct to apply a rating using Table 1, located on page 109, of the AMA guides, the rating should be between 40% and 90%. Specifically, they state that while the 45% rating was determined based on the finding that the worker’s condition resulted in them needing supervision, the next highest classification of rating should be used as the worker needed confinement.

To support their position, they have highlighted a number of medical reports and note that the worker was on the wait list for a transfer to a long-term care facility, which would have met the requirement of needing confinement.

The worker also notes that if any increase to the NEL benefit is awarded, they submit that they should then be entitled to a Personal Care Allowance and Independent Living Allowance on a retroactive basis. Employer’s Position

The employer, through their representative, provided a letter, dated April 23, 2025, which confirmed that they do not wish to participate in the appeal. No further information was submitted for my consideration. Assessment of Entitlement

Operational Policy 18-05-03, Determining the Degree of Permanent Impairment, states, in part, that a worker who has a work-related permanent impairment is entitled to a NEL based on the degree of their work-related permanent impairment. 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.

The policy confirms that the decision-maker uses a prescribed rating schedule, all relevant health care information in the claim file, and, if required, a report from an independent medical assessment to determine the degree of permanent impairment. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3^rd Edition, Revised.

In regards to the rating of the worker’s permanent impairment, I find that it was appropriate to solely consider the table entitled Disturbances of Complex, Integrated Cerebral Functions, as although other ratings can be provided for Central and Spinal Nervous System Disorders, the medical evidence does not support the presence of the other categories, which are Language Disturbances, Emotional Disturbances, Consciousness Disturbances, Episodic Neurological Disorders, and Sleep and Arousal Disorders.

For ease of reference, I have included the table for this category:

Disturbances of Complex, Integrated Cerebral Functions

Disturbances of these functions constitute the well-known organic brain syndrome. The resulting deficits may include defects in orientation, ability to abstract or understand concepts; memory, both immediate and remote; judgment; ability to initiate decisions and perform planned action; and acceptable social behavior.

The restrictions placed on patients with established organic brain syndromes provide criteria by which the permanent impairment may be evaluated.

These criteria are:

1Description

2% Impairment of the

3Description Whole Person

[4]

5There is a degree of impairment of complex integrated cerebral functions, but there is ability to carry out most activities of daily living as well as before onset

65-15

7There is a degree of impairment of complex integrated cerebral functions such that daily activities need some supervision and/or direction

820-45

9There is a degree of impairment of complex integrated cerebral functions that limits daily activities to directed care under confinement at home or in other domicile.

1050-90

11There is such a severe degree of impairment of complex integrated cerebral functions that the individual is unable to care for self in any situation or manner.

1295

In accordance with the submission brought forth by the worker’s representative, this appeal primarily hinges on if the degree of impairment of complex integrated cerebral function resulted in the worker’s daily activities needing some supervision and/or direction or if their daily activities were limited to an extent that they required directed care under confinement at home or in other domicile.

On February 10, 2021, a chart note identified that the worker was receiving visits from a personal support worker three times per week to take some of the burden off the worker’s daughter. A February 11, 2021 assessment confirmed that the worker was experiencing a progressive cognitive and functional decline in keeping with mixed Alzheimer’s and dementia. The worker confirmed that they remained independent with their instrumental activities of daily living, such as groceries and housekeeping, but had left the stove on and were having issues keeping their apartment tidy; however, testing showed that the worker had progressed into the moderate stages of dementia and had extremely limited insight into their defects, including to the point that they could not recall that there had been a COVID-19 pandemic. Specifically, they believed that they would never require additional supports or that anybody but themselves would make decisions for them. There were also reports that the worker was becoming more difficult to manage and that there had been quite significant verbal and physical outbursts. The doctor noted that the worker’s daughter was overwhelmed, and there was obvious caregiver burnout.

Although in early December, the worker had been deemed capable of making placement decisions, on re-evaluation later in the month, they were found to be incapable and long-term care paperwork was completed. The report added that the worker was “globally incapable of making decisions regarding their personal care, placement, and financial management,” and it was also noted that they had very little short-term memory as they could not recall events, appointments, or interactions with others. The report stated that their care was quickly becoming incompatible with independent living despite additional supports that could be brought to the worker’s apartment. The doctor added that they “worry about safety, living alone and risks to other tenants in his apartment if he continues cooking unsafely.” It was recommended that the family begin to source meals from Meals on Wheels, to look at relocation to a retirement home while awaiting long-term care placement, and continue with follow-up appointments.

On April 27, 2021, the home assessment was completed, which identified that the worker’s daughter continued to visit the worker daily and that the worker should be registered with the Vulnerable Person Registry. A previous chart note from April 2021 also confirmed that the worker was now being brought meals on a daily basis.

A June 3, 2021 chart note reports that the worker’s son felt the worker’s dementia was worsening. They confirmed that Meals on Wheels was continuing to provide food, the worker’s daughter was visiting daily, and additional community supports also visited the worker three times a week to assist with medication compliance. At this time, the worker continued to have an induction cooktop, rather than a functional oven, and a toaster oven. An additional chart note from the following day noted that the worker was becoming more violent and agitated.

Of relevance, on June 16, 2021, the worker visited their family doctor and reported that they cook on their own and go to the grocery store to get their own groceries. During the appointment, they denied receiving any services from Meals on Wheels. The worker also claimed that they had not had any recent visitors; however, the prior chart notes and conversations with the family doctor confirm that the worker’s son had recently visited for an extended period. In regards to the worker’s activities of daily living, they also reported that in August 2021, they were walking three to four times a week at City A Square. On

August 30, 2021, the worker’s daughter stated that the worker remained on a long-term care placement list. At that time, the worker’s daughter was visiting daily, a personal support worker was visiting three times per week, and Meals on Wheels was providing food; however, the worker continued to be able to take care of this basic personal care.

An additional October 13, 2021 report stated that the worker continued to live on their own but with significant support from family and community agencies. A hospital report from November 8, 2021, confirms that the worker had quite significant dementia and that the worker continued to live alone, but was well-supported by their daughter, who lived half a block away. The worker’s daughter identified that they did not feel that they would be able to care for the worker in their home and a stay in the hospital was discussed.

In this particular case, I acknowledge the difficulty in determining if the worker’s activities of daily living needed some supervision or direction or if the worker required directed care under confinement. When assessing this, I would describe the quantity of the evidence as generally borderline between the two. However, when placing weight on the evidence, I note that some of the activities that the worker described themselves as capable of performing, such as grocery shopping and cooking, do not align with the services that were being provided to them. Rather, the worker was unaware that they received Meals on Wheels, could not remember recent visits to their home, and did not know that their stove had been disconnected. I accept that this would relate to their declining cognitive ability, lack of short-term memory, and lack of insight into their condition. The evidence does demonstrate that the worker often overstated their own abilities in an attempt to justify that no one else should make decisions on their behalf. Therefore, I have difficulty placing significant weight on the worker’s self-reporting concerning their activities of daily living when their doctor had already determined they were incapable of making their own decisions.

When considering the extent of the community services being provided to the worker; the requirement for daily visits from the worker’s daughter; the approved waiting list placement for long-term care; and the fact that the worker’s specialist had determined that the worker was “globally incapable of making decisions regarding their personal care, placement, and financial management,” I find that on a balance of probabilities, the worker’s activities of daily living required more than some supervision or direction and instead had entered the realm of directed care. In doing so, I recognize that the worker’s doctor had recommended that the worker be moved from their home while waiting for a long-term care bed, which would suggest that directed care under confinement was required. Had it not been for the worker’s adverse reactions and negative attitude to these suggestions, which concerned their inability to safely care for themselves, I accept that the worker may have been moved out of their apartment sooner. Instead, a significant level of family and community care was required to sustain the worker’s baseline ability to live on their own, and the medical evidence demonstrates that the situation was fragile and likely not able to continue in the long term or if any of the supports were removed. Overall, I accept that the level of support being provided represented a form of directed care rather than some supervision or direction, which would suggest that the worker only required a more basic level of assistance to allow them to successfully remain independent in their living situation.

In consideration of all of the above, I accept that the level of care required represents the lowest end of the category where the degree of impairment of complex integrated cerebral functions limits daily activities to directed care under confinement at home or in other domicile. Therefore, I find that the quantum of the worker’s NEL benefit for their mixed dementia, Alzheimer’s disease, and vascular type dementia is 50%, prior to combining this NEL benefit with other prior NEL benefits.

CONCLUSION

I find that the quantum of the worker’s NEL benefit for their mixed dementia, Alzheimer’s disease, and vascular type dementia is 50%, prior to combining this NEL benefit with other prior NEL benefits.

The objection is allowed.