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APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20250069

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

K. ERKILA, APPEALS RESOLUTION OFFICER

AUGUST 8, 2025

ISSUES

The worker, through their representative, objects to the following decisions:

1. The decision dated October 10, 2024, that confirmed the worker reached maximum medical recovery (MMR) as of January 7, 2016, and determined the worker’s level of impairment for chronic pain disability (CPD).

2. The decision dated November 22, 2024, that determined the non-economic loss (NEL) quantum of 35% for the worker’s CPD.

3. The decision dated January 21, 2025, that determined the worker was not entitled to loss of earnings (LOE) benefits from January 7, 2016, based on suitable and available modified work.

BACKGROUND

The history and nature of this claim is well documented in prior Appeal Resolution Officer (ARO) and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions. As such, I will only provide a brief history to place the issues into context.

On April 16, 2015, this material handler injured their right thigh when they were pinned between a conveyor belt and a door. Entitlement was allowed for a right thigh soft tissue injury, chronic lumbar right leg radiculopathy, and adjustment disorder and pain disorder.

The WSIAT decision dated October 17, 2023, partly overturned the ARO decisions of February 13, 2020, and June 21, 2022, and determined the worker had ongoing entitlement to benefits for a right thigh injury, including recognition of a permanent impairment and NEL determination. The worker did not have ongoing entitlement for the low back or for their psychotraumatic disability. The issue of LOE benefits from January 7, 2016, was remitted to the board for determination after the NEL assessment of the worker’s right thigh. On November 9, 2023, the worker was granted a 9% NEL benefit for their permanent right thigh soft tissue injury.

In the decision dated December 19, 2023, the case manager denied entitlement to LOE benefits from January 7, 2016, as the employer continued to have suitable modified duties available for the worker. The worker objected to this decision. In the ARO decision dated May 10, 2024, the ARO upheld the decision to deny LOE benefits beyond January 7, 2016.

The worker requested entitlement to CPD. In the decision dated October 10, 2024, entitlement was allowed for CPD. The case manager determined the worker reached MMR as of January 7, 2016, and was considered partially disabled with permanent restrictions. On November 22, 2024, the worker was awarded a 35% NEL benefit. The worker requested entitlement to full LOE benefits based on the allowance of CPD. In the decision dated January 21, 2025, the case manager determined the worker was not entitled to LOE benefits from January 7, 2016, as the modified duties available were suitable for the worker’s CPD.

The worker objects to these decisions, and the issues have been referred to the Appeals Services Division for further consideration.

AUTHORITY

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-07 RTW Overview and Key Concepts

11-01-05 Determining Permanent Impairment

18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders

18-05-03 Determining the Degree of Permanent Impairment

September 1, 2021

April 9, 2021

November 3, 2014

July 18, 2008

September 29, 2023

ANALYSIS

I have carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. Based on my review of the evidence and reasons explained below, I find the worker reached MMR as of January 7, 2016. I find the worker’s CPD NEL quantum was accurately rated at 35%. I find the worker is partially impaired and is capable of part-time hours at 20 hours per week. I find the worker is entitled to partial LOE benefits from May 4, 2015.

The Worker’s Position and Remedy Sought

The representative submits the worker should be entitled to full LOE benefits from January 7, 2016, onward, as the worker is completely disabled due to their CPD, and the worker’s treating physicians confirm the worker is unable to return to work in any capacity.

The representative submits the worker struggles with basic daily activities, and it would be unrealistic to expect them to return to work. The worker does not socialize or engage in any leisure activities they previously enjoyed and experiences feelings of sadness and low mood daily.

The representative submits the case manager was not able to accurately assess the worker’s level of impairment, as the NEL quantum had not yet been determined when the decision was rendered. As a result, the case manager did not account for the 35% NEL. It is the representative’s position that the worker’s level of impairment was prematurely adjudicated, as the quantum of the NEL award is a clear indication of the severity of the worker’s condition.

The representative submits the worker’s level of impairment demonstrates that their condition affects not only their employment but also their personal life. The worker is completely dependent on their family members to assist with their activities of daily living, their sleep is frequently interrupted due to pain, and

they have difficulty performing basic housekeeping tasks such as dressing, light cleaning, laundry, grocery shopping, and using public transportation.

The representative submits that the medical evidence confirms the worker is completely disabled due to their CPD, that the modified duties are not suitable, and the worker is unable to return to work in any capacity.

The worker is seeking a review of the NEL quantum and MMR date used to derive the benefit calculation, a reassessment of the worker’s level of impairment, and is seeking full LOE benefits from

January 7, 2016, to age 65.

The employer is participating in the appeal, however, has not provided any submissions.

When did the worker reach MMR for their CPD?

Based on my review of the evidence and reasons explained below, I find the worker reached MMR as of January 7, 2016.

In reaching my decision, I note that policy 11-01-05, Determining Permanent Impairment says that a work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached. MMR means that a plateau in recovery has been reached and it is not likely there will be any further significant improvement in the work-related injury/disease.

Permanent impairment means an impairment that continues to exist after the worker reaches MMR. Significant improvement means a marked degree of improvement in the work-related injury/disease that is demonstrated by a measurable change in clinical findings. To determine that a permanent impairment exists, the decision-maker must confirm that:

• MMR has been reached

• Evidence of ongoing impairment exists, and

• The ongoing impairment is a result of the work-related injury/disease

In all cases, decision-makers identify when MMR is reached. Decision-makers consider whether:

• Recent clinical evidence indicates any change in the work-related injury/disease

• The worker is receiving or will receive treatment that is likely to improve the work-related injury/disease, or

• The worker is receiving treatment or using medication to maintain the current level of recovery.

In the decision dated October 10, 2024, entitlement was allowed for CPD. Under policy 15-04-03, Chronic Pain Disability, workers who have met the entitlement criteria under the policy are considered to have achieved MMR and are entitled to a NEL assessment.

As per the hip and knee specialty clinic comprehensive assessment report dated September 11, 2015, the assessor noted the worker’s main problem was their chronic pain condition and not due to any complications from a musculoskeletal injury. The worker was diagnosed with a five-months post soft tissue contusion injury to the inner aspect of the right thigh, resolving, and secondary chronic pain syndrome. It was noted the worker had had limited functional improvement to date and given the worker’s pain levels, a referral to a function and pain program with active physiotherapy was recommended.

On October 7, 2015, the worker was assessed at the function and pain program. The worker reported constant, entire right thigh pain which radiated to the entirety of the right knee, described as burning or sharp, rated at consistently 9/10 in severity. The worker also reported pain in their lower back and headaches. The worker reported significant interference in activities and emotional distress because of their pain and expressed a perception of being highly limited, and stated they required assistance from family member for most of their activities of daily living (ADL) and household activities. The worker was diagnosed with pain disorder with both psychological factors and a general medical condition (chronic).

The worker participated in treatment through the function and pain program and in December 2015, they were discharged from treatment. As per the discharge report dated January 7, 2016, the worker reported limited improvement following the program. The worker was found to be restricted to working at a sedentary-light level with limitations in lifting, bending, as well as prolonged sitting, standing, and walking. The worker required ongoing restrictions to return to work.

On September 6, 2017, the worker was assessed at a pain clinic with Dr. Rod and continued to complain of right hip and right leg pain, as well as headaches and low back pain. The worker had limitations with prolonged sitting, prolonged standing, and prolonged walking. Nerve blocks in the lumbar spine were recommended for the worker’s pain syndrome.

Dr. Dunraj submitted a clinical note dated December 12, 2019, that noted the worker continued to have chronic back and right leg pain since their workplace injuries. The worker continued to have a significant impairment with mobility and required the assistance of a cane. Dr. Dunraj opined the worker would not be fit for gainful employment, even sedentary duties, due to their physical restrictions.

On October 15, 2020, the worker underwent a psychiatric consultation and was diagnosed with chronic pain syndrome associated with chronically depressed mood following their workplace injury in 2015. The worker reported they can walk but can’t stand or sit for long periods. Their son helps them to shower, put their shoes on and friends help with shopping, cooking, and cleaning.

On April 1, 2021, the worker underwent a functional abilities evaluation (FAE) assessment. The assessors opined the worker’s capabilities were not an accurate representation of their full capabilities as the worker demonstrated an inconsistent effort during the evaluation, primarily due to self-limitation and complaints of pain. With respect to the worker’s right thigh and lower back, they demonstrated the ability to sit at a frequent level, stand at an occasional level, and walk at a rare level. Material handing abilities could not be determined due to safety concerns or self-limitation. The worker reported pain in their lower back and right leg rated at consistently 9/10 in severity.

The representative disagrees with the determined MMR date of January 7, 2016, however, has not provided an alternate date.

Policy 11-01-05, Determining Permanent Impairment says that a work-related impairment is considered permanent when it continues to exist after MMR has been reached. The medical evidence supports the worker was diagnosed with chronic pain syndrome beginning in September 2015, and the diagnosis has remained the same beyond October 2020. The worker has continued to attend treatment after their discharge from the function and pain program in January 2016, however, they continue to have the same chronic pain symptoms in their right thigh and lower back, rated at 9/10 in severity, with ongoing limitations with prolonged sitting, standing, and walking. The clinical evidence supports the treatment the worker has continued to receive has not improved their condition. The clinical evidence does not indicate any change in their CPD beyond January 7, 2016, when they were discharged from the function and pain program. As such, I find the worker reached MMR as of January 7, 2016.

Was the worker’s CPD NEL quantum rated accurately?

Based on my review of the evidence and reasons explained below, I find the worker’s CPD NEL quantum was accurately rated at 35%.

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, 3^rd edition revised, (AMA Guides). This is outlined in policy 18-05-03, Determining the Degree of Permanent Impairment. This policy states that to rate permanent impairments, 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.

If a type of impairment is not listed in the prescribed rating schedule, the decision-maker uses criteria in the prescribed rating schedule for the body parts, systems, or functions, which are most similar to the worker’s impairment.

Workers who have a permanent impairment due to a work-related mental or behavioural disorder are entitled to NEL benefits based on the severity of the impairment. This is outlined in policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders. The WSIB then rates the condition using the Mental and Behavioural Disorders Rating Scale, which combines elements of the AMA Guides with the WSIB’s Psychotraumatic and Behavioural Disorders Rating Schedule.

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 the rating scale most closely resembles an individual’s overall level of impairment.

The worker’s 35% NEL for CPD represents a Class 3 rating. Class 3 is defined as a moderate impairment (20-45%). Impairment levels are 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.

The NEL rating was performed on November 5, 2024, utilizing the medical information contained in the claim file. The evaluation criteria for the rating are based on a worker’s level of function in four distinct areas: (1) Activities of Daily Living; (2) Social Functioning; (3) Concentration Persistence and Pace; and

(4) Adaptation to Stress.

I have reviewed the NEL clinical specialist’s evaluation rating report dated November 5, 2024, wherein the CPD impairment was rated at 35%. In reaching this determination, the clinical specialist relied on the function and pain specialty program comprehensive assessment report dated October 7, 2015, and the function and pain specialty program discharge report dated January 7, 2016. As I have previously determined the worker reached MMR as of January 7, 2016, I find these reports are the most appropriate documents to review to rate the worker’s NEL benefit. I considered the NEL clinical specialist’s summary of the medical reporting that is contained in the NEL evaluation rating and confirm that it accurately reflects the content of the reports used.

When assessing the worker’s limitations related to performing their activities of daily living, it was noted the worker was well-dressed and groomed. They were dependent on family for most instrumental ADLs and household chores, with significant interference in activities. The worker spends most of their time sitting or lying down and will attempt to perform small tasks around the house to be able to change their position. Their sleep is interrupted by pain, and they sleep a maximum of four to five hours a night. The worker can complete some ADLs at a slower pace such as cooking, however, they have difficulty with lower body dressing, light cleaning, grocery shopping, and taking public transportation.

Socially, it was confirmed the worker has supportive family members and perceives themselves as having an above-average level of social support. They have no social phobia and does not endorse anhedonia. However, the worker does not socialize as often due to the injury and no longer engages in the previous leisure activities of dancing, stair climbing, walking, and shopping due to pain. The worker has no disturbance in concentration.

Regarding adaptation to stress, the medical reports document the worker showed a significant fear of harm or reinjury associated with movement, with depressed mood and a high level of emotional distress. The worker reported constant right thigh pain in the entire leg, radiating to the knee consistently at 9/10, with high levels of pain that have remained unchanged, with no helpful coping strategies. There were no obsessions, compulsions, or disturbances in perception, thought process or content. The worker worries and ruminates about their situation and there is some evidence of lability when discussing specific stressors, however, they were able to contain their emotions as the topic shifted. The worker feels sad and down daily, with depression and anxiety in the severe range, however, suicidal ideation was not endorsed on testing.

The representative is seeking a review of the NEL quantum however, they have not identified whether the NEL should be increased and if so, to what level.

When I assess all the available information in the claim file, I find no flaw in the NEL clinical specialist’s assessment of the worker’s CPD condition at 35%, within the Class 3 moderate impairment rating. I am satisfied that the symptoms described in the medical reporting on file are consistent with the subjective descriptor outlined in the Class 3 rating description.

The subjective reporting confirms the worker is not able to carry out most activities of daily living as well as before and they require some assistance with personal needs in the home environment. However, there is no indication of personal neglect. While there is a degree of impairment to complex integrated cerebral functions, it is not such that daily activities need some supervision and/or direction. There is no indication the worker becomes more dependent on family members in all activities or that there is a nurturing of strong passive dependency tendencies.

There is no documentation describing emotional withdrawal, loss of appetite, mild noise intolerance, mild psychomotor retardation/slowing, or definite limitations in social or personal adjustment within the family. The psychological information on file does not describe incipient breakdown of social integration and there is no clear indication of psychological regression.

The worker demonstrates excessive fear of re-injury, and their emotional state appears to be compounded by objective physical discomfort with persistent pain, depressive features with longer periods of depression, insomnia, and chronic fatigue. There is no documentation describing the worker as being homebound or even room bound to any extent or that their daily activities are limited to directed care under confinement at home or in other domiciles. I agree with the clinical specialist’s interpretation that there is no information suggesting a higher rating within Class 3.

Having regard for the findings presented in the relevant medical documentation, I find the 35% NEL whole person impairment value is appropriate and adequately reflects the worker’s level of impairment for their compensable condition. As such, the worker’s appeal on this issue is denied.

Is the worker entitled to LOE benefits from January 7, 2016?

Based on my review of the evidence and reasons explained below, I find the worker is partially impaired and is capable of part-time hours at 20 hours per week. I find the worker is entitled to partial LOE benefits from May 4, 2015.

There are two appliable WSIB policies for this situation.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states, in part, a worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of LOE benefits beginning when the loss of earnings begins. Benefits continue until the earliest of the day on which the worker’s loss of earnings ceases, or the day on which the worker is no longer impaired as a result of the injury.

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.

Examples include but are not limited to:

• workers who return to work at reduced hours or wages, and

• workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre- injury average earnings.

Policy 19-02-07, RTW Overview and Key Concepts, states, in part, suitable work means post-injury work that is safe, productive, consistent with the worker’s functional abilities, and that restores the worker’s pre-injury earnings to the greatest extent possible. When determining whether the modified duties are safe, decision-makers must ensure that the work does not pose a health or safety risk to the worker (e.g., should not cause re-injury or a new injury either physically or psychologically).

In order to render the LOE decision, I must assess whether the worker is able to return to some form of work, and if they are, whether the modified duties offered to the worker were suitable for their CPD.

In determining the worker’s level of impairment for their CPD, I placed weight on the January 7, 2016, Function and Pain Specialty Program report as this is the date of MMR and therefore, I accept the restrictions outlined in the report as the worker’s permanent restrictions. The assessors provided the opinion that the worker remained capable of working modified duties with the employer as long as they had the opportunity to change positions between, sitting, standing, and walking.

The accepted permanent restrictions outlined in the report for the worker’s CPD are:

• Limit modified floor (i.e. from knee level) to waist lifting to 15lbs on an occasional basis

• Limit waist to crown lifting to 10lbs to an occasional basis

• Limit unilateral front carrying using the right hand to 10lbs to an occasional basis

• Avoid low level work (i.e. crouching and kneeling/half-kneeling)

• Limit tasks that require sustained forward bending to an occasional basis

• Limit tasks that require sustained elevated reach to an occasional basis

• Limit prolonged sitting, standing and walking to an occasional basis; opportunities to alternate between positions and microbreaks should be made available

• Limit stair climbing to an as tolerated basis.

In a letter from the employer dated March 4, 2019, the employer offered modified duties that included labelling merchandise, office administration duties and light packing duties up to 10lbs. The worker had the ability to sit/stand as required and take micro breaks.

The worker began modified duties on May 4, 2015, working 4 hours per day. The modified duties were available at full hours, however, the worker stated they were unable to work full hours due to ongoing pain and swelling in their leg. The employer initially topped up the worker’s wages to full hours until August 27, 2015, when the medical evidence supported the worker could perform their modified duties at full hours. The worker went off work as of August 28, 2015.

From a return-to-work perspective, I find the worker was partially impaired and able to perform duties within their permanent restrictions.

The worker continued to participate in health care treatment and partial LOE benefits were allowed for health care appointments from October 7, 2015, to January 7, 2016, while they participated in the function and pain program.

On January 25, 2016, the worker returned to the same modified duties previously provided. As per the RTW meeting plan dated January 26, 2016, the worker was expected to gradually return to regular duties by February 16, 2016, however, this did not take place. The employer submitted the worker’s timesheet to confirm the worker worked sporadic hours, ranging from 2 to 4 hours per day, from January 25, 2016, to December 21, 2016. The worker has not returned to work since December 21, 2016.

The representative has identified multiple medical reports from Dr. Barrett, Dr. Dunraj, and Dr. Rod from July 2022, to January 2025, supporting the worker’s inability to return to work due to their ongoing chronic pain and mobility issues. Although these physicians have opined the worker is unable to return to work, when weighing the medical evidence, I find the opinions of the assessors at the Function and Pain Program as more compelling. These opinions were provided at the time of MMR, by medical experts who had access to all claim file information, including return to work information. The worker participated in active treatment through the Function and Pain Program for over 6 weeks, where the assessors were able to assess and test the worker’s functional abilities daily. When providing the return-to-work restrictions, I note the assessors considered all the worker’s chronic pain symptoms, including cognitive and psychological impairments.

When reviewing the medical evidence, I note the worker’s chronic pain symptoms have not changed since the worker was discharged from the Function and Pain Program in January 2016. The worker continues to complain of 9/10 pain severity in their right leg and lower back, their family members continue to help them with the ADL’s and household activities, and they have ongoing depression. As there has been no change in the worker’s chronic pain symptoms, I accept the opinion provided by the assessors at the function and pain program at the time of MMR.

The representative submits the worker should be entitled to full LOE benefits due to the worker’s 35% NEL for their CPD impairment. I partially agree with their position. While the worker’s functional abilities are based on the clinical findings and not on the NEL quantum rating, I find a 35% NEL is significant and should be taken into consideration. However, it is a moderate impairment and does not render the worker totally disabled and incapable of working in any capacity.

I find the modified duties offered to the worker were suitable for the worker’s CPD impairment and were within the worker’s restrictions provided in the January 7, 2016, Function and Pain Program report. The job duties provided the worker with the opportunity to change positions between, sitting, standing, and walking.

However, I find, given the nature of the worker’s permanent impairment, and their ongoing pain and psychological issues, it is unlikely that the worker would have been able to work on a full-time basis. This is supported by the fact the worker returned to work on May 4, 2015, and was only capable of working part-time hours, performing the same suitable modified duties until December 21, 2016. As the worker has demonstrated the ability to work part-time hours, I find the worker is partially impaired and capable of working 20 hours per week from May 4, 2015. As per policy 18-03-02, the worker is entitled to partial LOE benefits from May 4, 2015.

CONCLUSION

I find:

1. The worker reached MMR as of January 7, 2016.

2. The worker’s CPD NEL quantum was accurately rated at 35%.

3. The worker is partially impaired and is capable of part-time hours at 20 hours per week and is entitled to partial LOE benefits from May 4, 2015.

The objection is allowed-in-part.

DATED AUGUST 8, 2025

K. Erkila

K. Erkila

Appeals Resolution Officer Appeals Services Division