Worker v. Employer, 2025 CanLII 152662

20260014

REPRESENTED by:

VIDEOCONFERENCE – NOVEMBER 7, 2025

HEARD by:

DATED:

NOVEMBER 24, 2025

ISSUES

The worker representative, on behalf of the worker, is objecting to the following:

The Case Manager’s decision of October 3, 2024, denying entitlement to loss of earnings (LOE) benefits from that date on the basis that permanent suitable duties were offered at no wage loss;
The Non-economic Loss (NEL) Clinical Specialist’s decision dated December 31, 2024 awarding a 15% NEL rating for the permanent psychotraumatic impairment of Major Depressive Disorder with Anxious Distress;
The Case Manager’s decision of July 29, 2025 denying entitlement to a worsening or recurrence of non-organic (psychological) entitlement for Major Depressive Disorder with Anxious Distress and confirms the ability to work 40 hours per week within the offered modified job;
The Case Manager’s decision dated September 10, 2025 denying entitlement to a worsening or recurrence of the work-related head (post-concussive) injury beyond the maximum medical recovery (MMR) level of June 30, 2022; and,
The denial of ongoing entitlement, including recognition of a permanent impairment, for the work-related neck (cervical) strain as of the MMR date of June 6, 2024 documented in the Case Manager’s decision letter of September 10, 2025.

BACKGROUND

On December 16, 2020, this then 51-year-old truck driver fell backwards while pulling a tarp, striking their head. Entitlement was granted to a concussion. Full LOE benefits were paid from December 17, 2020 to February 8, 2021. The worker applied for Canada Pension Plan Disability (CPP-D) benefits in

August 2021. The Return to Work (RTW) Specialist performed a worksite visit on January 20, 2022. A written offer of modified duties was provided on February 25, 2022. The Case Manager authorized entitlement to a neck sprain/strain on July 7, 2022, specifying that this additional entitlement did not change the worker’s overall level of impairment. A NEL Clinical Specialist’s decision letter dated August 22, 2022 awarded a 12% NEL benefit for the permanent head impairment consisting of a 2% rating for tinnitus and 10% for a brain disorder impairment.

A decision dated May 15, 2023 authorized 25% Secondary Injury Enhancement Fund (SIEF) cost relief. The Appeals Resolution Officer (ARO) decision of May 23, 2023 confirmed entitlement to LOE benefits for the period of October 22, 2021 to November 7, 2021 on the basis that the out-of-province deliveries were unsuitable duties for the worker. The ARO confirmed entitlement to LOE benefits for the two dates of November 29, 2021 and December 3, 2021. The Case Manager’s decision letter of October 18, 2023 accepted that the previously authorized Major Depressive Disorder with Anxious Distress had not fully recovered and reinstated LOE benefits. A second ARO decision dated December 18, 2023 denied entitlement to Posttraumatic Stress Disorder (PTSD) and Acute Stress Disorder. The employer’s location moved in late December 2023. The Case Manager document the accepted physical functional limitations in a letter dated March 7, 2024 and the accepted psychological functional limitations in another letter dated May 16, 2024.

The worker was assessed at the Neurology Specialty Program on June 6, 2024 due to complaints of decompensation and worsening symptoms with hearing, headaches and their ability to focus.

Correspondence from the worker to the worker representative dated the same day expressed concern that they felt interrogated and “put on the spot” to the extent that they experienced panic and could not answer the questions. The Social Security Tribunal of Canada rendered a decision on June 10, 2024 authorizing CPP-D benefits starting November 2021. The Case Manager documented the updated functional abilities that were accepted for both the psychological and physical conditions in a letter dated July 18, 2024. An initial interview with the RTW Specialist took place on July 26, 2024. The employer

re-offered the duties originally offered on February 25, 2022 to the worker on September 19, 2024. The employer’s updated offer of permanent modified duties requested a reply by September 27, 2024.

Entitlement to LOE benefits ended on October 3, 2024 as the Case Manager determined that the worker had not replied to the offer of suitable modified duties that would eliminate the wage loss. RTW services closed on October 9, 2024. Correspondence from the employer dated November 20, 2024 verified that they would top up to full wages based on the long-term recalculated LOE benefit rate of $1,768.15 per week. The employer provided another written offer of the same modified duties on December 5, 2024.

The worker declined the offer of modified duties via email on January 9, 2025. The Social Security Tribunal of Canada decision of March 18, 2025 determined that the worker was not employable in the real world.

An administrative decision dated April 9, 2025 determined that the worker’s objections to the decisions of October 3, 2024 and December 31, 2024 would be addressed as an oral hearing. The revised appeal agenda dated October 7, 2025 confirmed the inclusion of the decision letters dated July 29, 2025 and September 10, 2025. The five issues are now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment 15-02-05 Recurrences

16-01-08 Tinnitus, Post-January 2, 1990

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 18-05-03 Determining the Degree of Permanent Impairment

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

19-02-07 RTW Overview and Key Concepts 19-02-10 RTW Assessments and Plans

November 3, 2014

December 5, 2024

October 12, 2004

September 1, 2021

September 29, 2023

July 18, 2008

April 9, 2021

November 30, 2020

Ontario Regulation (O. Reg.) 175/98 Section 18(1) and (2)

American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised

ANALYSIS

I find that the employer’s offer of alternate/modified duties does not meet the policy requirements for suitable permanent duties. I further find that the quantum of the 15% NEL rating for the psychological condition is appropriate and that entitlement to a worsening/recurrence of either the psychological or the post-concussive injuries is not in order. However, I accept that entitlement to a permanent neck strain is in order with no additional permanent restrictions. My reasons for these findings are documented below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

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 Workplace Safety and Insurance Board (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 representative’s position and remedy sought

The worker representative stresses that the WSIB has already paid the worker full LOE benefits from January 2022 to October 2024 for a 2.5-year period. It is the worker representative’s position that there is no evidence of improvement, only a deterioration in the worker’s condition. Within their submissions, the worker representative argues that the worker was never sent to a neuropsychologist which would be the most important type of assessment in this situation.

The worker representative argues that this is predominantly a level of impairment case in which there are two extremely persuasive CPP-D decisions. The worker representative also notes that a third-party insurer has been paying the worker benefits as well even though the WSIB is suggesting that the worker has the ability to sustain employment. In the view of the worker representative, the WSIB does not have

any specific criteria, or any specific NEL level, for employability. Rather, it is a reasonable test for both work capacity and LOE entitlement.

The worker representative suggests the employer’s offer of $91,000 per year to perform the permanent modified duties for the next ten years is not reasonable. In the view of the worker representative, it is not a real job nor is it productive, sustainable, or a job that would pay more than minimum wage. The suggestion is made that the worker’s testimony should be given significant weight as the worker participated in a RTW plan for 11 months and therefore is able to provide actual details of what the offered duties involve. The worker representative points out that the employer is not present at the hearing, nor were any witnesses called to testify. In the opinion of the worker representative, no new employer would accommodate the worker’s level of impairment in the real world given the accepted limitations.

Briefly, as documented within prior written submissions dated February 10, 2022, October 17, 2024 and July 24, 2025, the worker representative raises multiple concerns with the assessor at the Neurology Specialty Program and the reports from the clinic. The worker representative argues that the assessor is a physiatrist and not a neurologist. The worker representative highlights that the Case Manager has previously paid full LOE benefits based on psychological entitlement when the same duties were proposed as are being offered now.

As documented within the case record, the treating psychotherapist contacted the WSIB in 2024 to request further assessment of the worker due to a worsening of symptoms. A referral back to the Neurology Specialty Program takes place and the worker is examined once more by the same assessor as in 2022.

The worker representative disagrees with the Neurology Specialty Program’s assessment dated

June 6, 2024 which indicates the worker’s apparent worsening condition was due to them not working. The argument is presented that despite what the report suggests, other medical reports do not indicate any suggestion of secondary gain. In the view of the worker representative, the employer’s offer of modified duties is not suitable and the psychological NEL rating should be in the mid-point of the next impairment category range of 25% to 40%. The worker representative maintains that the worker’s level of impairment does not depend on either the quantum of the psychological NEL benefit or entitlement to a permanent neck injury.

If the worker’s objection is successful, the worker representative requests entitlement to full LOE benefits from October 3, 2024, and increase in the 15% NEL rating, entitlement to a worsening of both the psychological and post-concussive injuries, as well as entitlement to a permanent neck impairment.

Employer representative’s position

The employer representative maintains that there is no basis to authorize entitlement to LOE benefits as the offered modified duties are safe, suitable, and productive. The submission is presented that there are compliance and cooperation issues, as well as concerns with credibility and a lack of effort by the worker.

The employer representative indicates their agreement with the decision letters currently under appeal. The argument is made that this is not a case of someone who can’t work. The employer representative highlights the worker’s testimony that they have not attempted to look for work or mitigate their wage loss since being off. The employer representative suggests that the worker’s testimony indicates that

non-work-related interpersonal factors are material to the current appeal before me.

It is the employer representative’s position that the worker is not totally disabled and is capable of performing the available modified duties at no wage loss. In the view of the employer representative, the employer has gone above and beyond with their offer of suitable duties that are within the worker’s functional abilities and eliminate any ongoing wage loss. The argument is presented that the medical evidence is unanimous that a return to work would assist in the worker’s functional recovery and that the offered modified duties are suitable for both the psychological and physical injuries.

The employer representative points out that the Neurology Specialty Program report of June 6, 2024 recommends four days per week at eight hours per shift and that the worker’s headaches do not limit their ability to RTW. The employer representative stresses that the report of June 6, 2024 provides the opinion that the worker’s refusal to RTW is the biggest barrier to RTW and that there could be full recovery if conflict was not at play. Within their submissions, the employer representative notes that the worker has refused to participate in a driving assessment and has not shown any demonstrative effort to date of being willing to participate in one.

With respect to the issue of the offered modified duties, the employer representative argues that the worker representative does not understand the employer’s company and points out the RTWS acknowledges the legitimacy of the offer. The argument is made that the employer is a large company and that there are similar roles, such as general labour or shop mechanic. The employer representative notes that the worker would have the ability to rotate tasks throughout the day while receiving full wages. Even with the employer’s new location, the employer representative argues that the location has been determined to be within a reasonable distance by the RTWS and is within the 60 minutes of driving ability accepted within the NEL determination. Further, the employer representative suggests that the worker is performing similar tasks at home as compared to what is being offered by the employer.

Regarding the request for a permanent neck impairment, the employer representative suggests that the slight reduction in ROM documented in the report of June 2024 should be considered in the context of the report’s opinion that the worker was not giving full effort. The employer representative submits that the Neurology Specialty Program’s report does not list a neck strain as an occupational diagnosis just as the CPP-D decisions do not document neck issues. Given the lack of continuity within the case record of ongoing neck issues, the employer representative suggests the need to investigate the worker’s testimony of a prior collar bone fracture.

Turning to the worker representative’s arguments regarding the assessor at the Neurology Specialty Program, the employer representative submits that the physician is qualified as their specialty is neuro-physiatry and that they are required to provide clinical opinions. The employer representative presents the view that the evidence does not support a change in the 15% NEL rating, a work-related worsening or a change in the accepted MMR date, or entitlement to a permanent neck impairment.

Worker’s testimony

It is the worker’s testimony that they have a Grade 10 education and that their entire career has been driving trucks.

The worker describes their worksite as being a small part of the employer’s company and that there were 15 drivers where they worked. There are three large shops attached to a small office with two dispatchers and other administrative employees. The worker describes being in the office performing modified duties for several months before stopping in January 2022. The worker indicates that they never met the Health and Safety person as they were in a different office.

The worker also describes the modified duties they performed as including garbage pickup around the yard, filing inconsistent work orders (which would take a few minutes), sweeping/dusting, painting a few doors over a couple of days, and driving short distances for pick-up and delivery. The worker confirms that some runs into Nepean were manageable. The worker states there were times when they would have nothing to do even though there were three different people attempting to find tasks for them. On one specific date, the worker was unable to take off a tarp and offered to stay and work around the shop. According to the worker, they were sent home after 30 minutes as there was not even any yard work for them to do. However, the worker is unable to recall any other time that they were sent home by the employer.

The worker indicates that it is not time consuming to perform counting or check freight and that they were never asked to perform security duty. The worker indicates that they are uncertain what the tasks of yard monitor refers to but confirms that they performed self-paced truck detailing. The worker explains that they cleaned out the inside of approximately two trucks that were being sold. The worker does confirm performing tire banging to check the tires with a hammer “every once in a while”, and that checking tread depth on tires is performed. Nevertheless, the worker states that restocking equipment on trailers did not involve much and that they are not certain what the employer meant by identifying tarp type since both lumbar and drywall tarps are pretty much the same. It is the worker’s testimony that they do not recall repairing tarps and that in their 15 years with the employer this may have happened perhaps once per year when the shop floor was clear.

The worker describes not having much of a social life anymore and only being able to be out so long before wanting to go home. The worker states that their right eye goes blurry and seems to cause headaches in their temple. The worker confirms being provided with prism glasses but that using screens can be an issue after 60 to 90 minutes. Although sound and loud noises are not as bad as they used to be, the worker states that it can make their head ring. The worker indicates that they have daily headaches with shooting pain which tends to get worse if they keep going. Tinnitus is constant with the ringing in the ear being louder in the morning. The worker notices being unsteady at the grocery store when their balance issues and dizziness flare up. According to the worker’s testimony, focusing is their largest issue, including experiencing concentration difficulties if there are a lot of things going on around them.

In terms of RTW, the worker was hoping that they could do something mechanical, but that it would have to be at their own pace. The worker is uncertain if they could perform a proper job and notes that while they might be able to do a little bit, they would have to manage their symptoms. Within questioning, the worker describes sometimes working in their garage and checking small engines if they are feeling good. The worker will use ear protection when using their riding lawnmower which will take longer to complete due to needing breaks. The worker explains that their difficulty with performing similar tasks with the employer relates to their being tension at work and there being no quiet place for the worker to be. The worker points out that their commute increased from 20 minutes to up to 60 minutes due to the employer changing locations.

The worker estimates that the drive to their daughter’s home is approximately 35 minutes and that they visit her every couple of weeks. The worker confirms that they live alone and that they are reluctant to do bigger tasks. The worker denies having any additional assistance or help performing daily activities such as cooking, shopping, or banking.

Suitability of permanent offer on a full-time basis as of October 3, 2024

I am not persuaded that the permanent offer is suitable.

It is the worker’s estimation that the offered modified duties do not involve enough work for even 20 hours per week. The worker estimates that there are enough duties for between 10 and 15 hours per week, not including short drive runs. The worker indicates that they are now possibly willing to participate in a driving assessment.

The worker representative argues that the offer of modified duties involves the worker being asked to perform nonsensical things. In the opinion of the worker representative, it is impossible for the worker to sustain employability given their testing scores and need for massive accommodations. The submission is made that the employer knew the worker would decline their offer and that the driving distance to the employer’s new location is also a factor. Within their closing submissions, the worker representative argued that the worker was never medically cleared for more than four, eight-hour shifts. The worker representative suggests that there is no evidence that the employer would have been willing to hire the worker at 10 hours per week. The argument is presented that if the employer is ruled out, it must be determined if an employer in the open labour market would realistically hire the worker.

In contrast, the employer representative indicates the offered permanent duties are suitable at no wage loss. The employer representative references the Neurology Specialty Program’s opinion within the report of June 6, 2024 that from a concussive and injury-related perspective, there is no indication that this work should be off work at this time.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), requires the wage loss to be as a result of the work-related injury. Full LOE benefits may be in order if the work-related injury prevents a return to any type of work or if suitable duties are not available with the employer.

Policy 19-02-07, RTW Overview and Key Concepts, confirms that the ability to work is determined by comparing the worker’s functional abilities and limitations to the demands of the particular job. Policy

19-02-07 defines suitable work, and Policy 19-02-10, RTW Assessments and Plans similarly defines the term SO, as post-injury work or a category of jobs that is safe, productive, consistent with the worker’s functional abilities, and restores the pre-injury earnings to the greatest extent possible.

I must consider that Policy 19-02-07 defines productive work as work that is performed for the entire work shift and forms part of the employer’s regular business operations. Within the policy review of productive work, the term “work” is used broadly and may include the combining of tasks/duties that together may constitute temporary work, as well as short-term training programs that lead to a job with the injury employer. However, in this case, the current issue before me relates to an offer of permanent work that does not include a short-term training program leading to a job with the injury employer.

I have thoroughly reviewed the RTWS’s suitability review of January 21, 2022 based on the onsite visit of January 18, 2022. I observe that shovelling/salting is documented as taking 30 minutes to two hours depending on snow conditions. Cutting and assembling corner boards is described as involving several hours per shift, a few times per week. I observe that the Neurology Specialty Program’s report dated June 6, 2024 documents slightly worse post-concussion symptoms and no change in the testing results for fatigue compared to the previous discharge results of June 2022. Regardless, the report indicates that it is clear that the worker’s mental health has worsened since the time of the original assessment, although the Specialty Program defers the work-relatedness of this change to the psychology provider.

As pointed out by the worker representative, the Social Security Tribunal of Canada decision dated June 10, 2024 views the modified work offered by the employer to be a “made-up” job. The decision determined the entitlement to CPP-D benefits were in order starting November 2021 as the worker’s

disability is severe and prolonged. The Social Security Tribunal accepts that the work efforts could not be sustained, even with accommodations.

The Case Manager’s decision letter of July 18, 2024 sets out the accepted functional limitations for RTW services to identify a suitable occupation as follows:

Headaches, pressure on side of head, dizziness and confusion;
Compromised ability to drive or remain in one place;
Lifting floor to waist 30 pounds rarely, 20 pounds frequently;
Lifting waist to shoulder 20 pounds occasionally, 10 pounds frequently;
Lifting above shoulder 20 pounds occasionally, 10 pounds frequently;
Front carry 10-20 kilograms;
Cognitive limitations for attention/concentration, memory, problem-solving, multi-tasking, working under time pressure, planning/organizing, flexibility/adaptability, persistence, and stamina;
Allow for micro-breaks for symptom management;
Removal from triggering environment and accessing quiet or dark area;
Use of brimmed hat and/or sunglasses to facilitate tolerances;
Use of ear plugs/headphones to facilitate tolerances;
Limit novel tasks or those requiring new learning;
Extra time for tasks, especially those with finite deadlines; and,
Limit commercial driving.

The employer’s written offer of modified duties dated September 19, 2024 confirms that it is the same as the previous offer. The second Social Security Tribunal of Canada decision dated March 18, 2025 confirms entitlement to CPP-D benefits as of November 2021. The decision accepts that the worker’s physical and psychological condition does not permit them to deliver the kind of performance demanded in a commercial workplace. The Social Security Tribunal determines that the offered duties are not a “real job” and that the graduated RTW produced little or no net economic benefit for the employer. The decision concluded that the worker is not employable in the real world and that they do not have anything left to offer a real-world employer.

I am aware that the Social Security Tribunal of Canada decision of March 18, 2025 determines that the assessor at the Neurology Specialty Program was acting, not just as a clinician, but as an agent of the organization specifically mandated to get claimants back in the labour market, and by extension off benefits. Yet, I remain bound by Policy 19-02-07 which sets out key principles to guide the RTW process, including maximizing opportunities for RTW with the injury employer, including retraining for a new job with that employer. Policy 19-02-07 sets out that priority should generally be given to other suitable RTW opportunities with the injury employer before consideration is given to new employment in the local or broader labour market.

When assessing the evidence, I afford significant weight to the worker’s testimony with respect to the cutting and assembling of corner boards. The worker explains that there is a template for cutting plywood and nailing strips to two pieces of wood. The worker states that the purpose of the corner boards is to protect the straps on a load. I find it material that the worker confirms that such corner boards are reused “all the time” and that they may be replaced every two years if they become damaged. Therefore, I do not accept that the cutting and assembling of corner boards would be a frequent task. Similarly, I note that salting/snow removal would be seasonal and weather dependent. Given the worker’s testimony, I do not agree with the RTWS opinion that there would be sufficient duties available for four eight-hour shifts even without the cutting/assembling corner boards or driving.

Additionally, I find that the permanent offer does not represent productive work as defined under Policy 19-02-07 as it more closely resembles what policy describes as constituting temporary work, even if such duties only constitute part-time duties as suggested by the worker. With respect to the two parties’ submissions on the worker’s driving abilities, I note that the demonstrated ability of driving 60 minutes is documented with the psychological discharge report from the Neurological Specialty Program dated

May 10, 2022. The report documents the worker’s indication of being able to drive 45 minutes to an hour, as long as they are able to take breaks. As noted by the employer representative, this ability to drive 60 minutes is part of the NEL rating for the organic (physical) head injury. I accept this stated ability to drive up to 60 minutes as the accepted date of MMR for the post-concussive injury is June 30, 2022, or less than two months after the report of May 10, 2022.

I appreciate the worker representative’s multiple submissions as well as the worker’s testimony regarding level of impairment and the ability to sustain actual employment. However, I must also consider the employer representative’s argument that the Neurology Specialty Program’s assessor is qualified as their specialty is neuro-physiatry. Moreover, I note that the Specialty Program assessment is team-based and includes both an occupational therapist and a kinesiologist. There is general agreement that the Neurological Specialty Program’s discharge report dated June 30, 2022 represents the accepted date of MMR and recommends working four days on eight-hour shifts of modified duties.

As I will discuss below, I find that the quantum of the 15% NEL rating is appropriate and that there has not been a worsening/recurrence other than the acceptance of a permanent neck strain which does not impact the worker’s accepted functional abilities. All the same, I recognize the worker representative’s concerns with the worker’s employability in the open labour market.

Overall, I find that the employer’s offer of permanent duties is not suitable. That being said, I find that there is currently insufficient evidence to determine if the worker is competitively unemployable.

Specifically, I accept that further investigation is required in order to determine if an appropriate SO can be identified either with the employer or in the general labour market. Consequently, I find that entitlement to partial LOE benefits is in order from October 3, 2024 to the date of this decision based on a direct-entry SO without training that is within the accepted functional abilities documented within the Case Manager’s decision of July 18, 2024. While I acknowledge the worker representative’s arguments, I

afford weight to the worker’s demonstrated ability to perform at least some accommodated duties during the 11-month period where they attempted a RTW with the employer. Therefore, I accept that the weekly hours for any potentially identified SO without training is to be 32 hours per week, based on the Specialty Clinic’s recommendation of four days per week at eight hours per shift.

Going forward beyond the date of this decision, and keeping in mind that the 72-month mark in this claim is December 16, 2026, the Case Manager may wish to consider if there is some type of short-term training for a new SO that would be within the worker’s accepted functional limitations (as documented within the decision letter of July 18, 2024) for either a different position with the employer, or within the open labour market. However, I find that the same limit of 32 hours per week of four eight-hour shifts per week would remain applicable as would the restriction of limiting novel tasks or tasks requiring new learning.

Quantum of the non-economic loss rating for the permanent psychotraumatic impairment

I accept that the 15% NEL rating is appropriate.

The worker representative argues that the NEL rating should be in the mid-range of a Class 3 (Moderate Impairment). The worker representative argues that the Neurology Specialty Program report from

June 2024 lists scores that are “off the chart” and include severe anxiety, depression, and fatigue that requires further evaluation. The worker representative maintains that there is no suggestion that these results are not valid. The argument is made that the worker’s testimony supports that the minimize social contact, which supports a higher NEL rating.

Policy 18-05-03, Determining the Degree of Permanent Impairment, directs decision-makers to rate the total impairment to the area according to the prescribed rating schedule. As stated within O. Reg. 175/98 Section 18(1), the prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd. edition revised, (AMA Guides). O. Reg. 175/98 Section 18(2) directs the use of criteria in the prescribed rating schedule for the body parts, systems, or functions which are most analogous to the worker’s impairment. Policy 18-05-03 outlines that the degree of permanent impairment is to be expressed as a percentage of total impairment of the whole person by considering the health care information available in the claim file.

The AMA Guides states that the diagnosis is not the sole criterion for assessing mental impairments (page 235). Rather, the AMA Guides (page 237) outlines four areas of functional limitation which are to be considered when rating mental impairments as follows:

Activities of daily living;
Social functioning;
Concentration, persistence and pace; and,
Adaptation to stressful situations.

Table 1 (AMA Guides, page 241) lists these four areas of function in association with five classes of impairment ranging from no impairment (Class 1) to extreme impairment (Class 5). While the AMA Guides does not outline specific rating ranges for any of the five classes, Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders, provides rating ranges for mental and behavioural disorders for the same definitions of Classes 1 to 5.

Policy 18-05-11 confirms that Class 2 (Mild Impairment, 5% to 15%) involves a degree of impairment of complex integrated cerebral function, but the worker remains able to carry out most activities of daily living as well as before. There is also some loss in personal or social efficacy and the secondary psychogenic aggravations are caused by the emotional impact of the accident.

By comparison, Class 3 (Moderate Impairment, 20-45%) involves a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. In the lower range of Class 3, 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. In the higher range of Class 3, a phobic pattern or conversion reaction will surface with some bizarre behaviour. There will be a 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.

As discussed above, it is the worker’s testimony that they live alone and complete daily activities by themselves, albeit taking more time for larger tasks. I recognize the worker’s testimony that the symptoms can flare up while out at the grocery store and that they socialize less than prior to the accident. Nevertheless, the worker describes frequently visiting with their daughter every couple of weeks. I must also consider that the worker does not require supervision and/or direction with their daily activities. Thus, it is my view that the worker’s loss of personal and/or social efficacy is best represented within the high-end range of a Class 2 impairment as the worker is still capable of performing their own grocery shopping and banking, albeit with possible accommodations. Based on these factors, I find that the 15% NEL rating for a high-end Class 2 impairment is order and that the worker does not meet the required criteria for a Class 3 impairment rating.

Is there a worsening/recurrence of the Major Depressive Disorder with Anxious Distress?

I find that there has not been a worsening/recurrence of the work-related Major Depressive Disorder with Anxious Distress. The worker representative submits that the Neurology Specialty Program report dated June 6, 2024 provides evidence of worsening mental health.

Policy 15-02-05, Recurrences, requires there to be a significant deterioration that is clinically compatible with the original injury and does not result from a significant new incident. To put it another way, the current diagnosis must be related to, or the result of, the workplace accident or injury. To make this determination, decision-makers are to consider the nature and severity of the significant deterioration, the original injury, and any relevant non-work-related conditions that are present.

Policy 15-02-05 defines the term significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. While not required to establish a causal link, policy provides the authority for decision-makers to consider if there were continuing symptoms as demonstrated by ongoing treatment, the reporting of complaints, or continuing workplace accommodations.

Importantly, Policy 15-02-05 states that a recurrence is not considered if the significant deterioration results from a significant new incident (work-related or not). A recurrence is considered if the significant deterioration occurs when there is no new incident or if it results from an insignificant new incident (work-related or not). Policy defines a significant new incident as one of some consequence or importance, such as falling from a ladder. In contrast, policy defines an insignificant new incident as one

of negligible consequence or importance. Policy 15-02-05 provides the example of reaching for an object on a shelf as being an insignificant new incident.

I appreciate that the questionnaire for overall health contained within the report of June 6, 2024 is worse than at discharge in June 2022. Still, I observe that the anxiety score is listed as improved while the depression score has worsened significantly. The report of June 6, 2024 clearly defers to the treating psychology provide to determine the cause of the worsening. On the other hand, I note that the Community Mental Health Program reports of February 7, 2024 and May 13, 2024 indicate that there has been minimal improvement. I recognize that the report of May 13, 2024 documents that avoiding people and public places leads to isolation which in turn increases the worker’s depression symptoms.

Nonetheless, I find that there is insufficient evidence within the Community Mental Health Program reports of any significant deterioration as required by Policy 15-02-05. Accordingly, I find that entitlement to a worsening/recurrence of Major Depressive Disorder with Anxious Distress is not in order.

Is there a worsening/recurrence of the head injury beyond the level of June 30, 2022?

There is general agreement that the worker was reassessed at the Neurology Specialty Program in June 2024 based on the concerns raised by the treating psychotherapist.

The worker representative argues that the evidence supports there being a worsening in the worker’s head injury after the date of June 30, 2022. The worker representative’s written submission dated October 17, 2024 suggests that the anxiety, depression, and adaptability scores got worse. The worker representative argues that many of the physical tests were not completed due to symptom aggravation, tolerance issues and the worker’s need for frequent breaks. The worker representative has provided submissions raising concern regarding the assessor’s comments on the worker’s level of effort and motivation to RTW. Regardless of the worker’s actual level of effort during testing, I find that the results documented within the report of June 6, 2024 do not support there being a significant deterioration.

I observe that the Neurology Specialty Program’s report of June 6, 2024 outlines that the concussion questionnaire results show the worker being slightly worse compared to discharge in June 2022. I note that the fatigue severity scale shows no change compared to June 2022. The comprehensive trail-making test results were of mild to moderate impairment. The worker discontinued cognitive testing and did not complete the executive function skills. The Specialty Program indicates that it is difficult to precisely or accurately determine the worker’s capabilities due to their poor effort during testing. I find it material that the report confirms that vision testing and the hearing screen are both within normal limits.

I appreciate that the report of June 6, 2024 documents the worker’s subjective report of increased tinnitus symptoms with functional testing. However, Policy 16-01-08, Tinnitus, Post-January 2, 1990, documents that the prescribed rating schedule states that tinnitus is not measurable and that a permanent impairment of 2% for tinnitus is consistent with the established values. I note that the worker’s current NEL rating for tinnitus is 2%. Therefore, I accept that a worsening in the level of the worker’s tinnitus is not appropriate. Once more, Policy 15-02-05 requires there to be a significant deterioration in the

work-related condition. Based on the above-noted reasoning, I find that there is insufficient evidence of a significant worsening in the work-related head injury with respect to either the post-concussive or tinnitus conditions.

Ongoing entitlement to work-related neck strain beyond June 6, 2024

It is my opinion that there is sufficient evidence to establish a permanent work-related neck strain. The employer representative argues that entitlement is not in order to an ongoing or permanent neck injury as a result of the workplace injury. The employer representative refers to the report of June 6, 2024 documenting low effort during testing and highlights that the neck is not listed within the occupational diagnoses. The worker representative presents the argument that the worker’s neck pain is ongoing.

Policy 11-01-05, Determining Permanent Impairment, defines the term maximum medical recovery (MMR) as a plateau in recovery at which point further significant improvement in the work-related injury is unlikely. Policy outlines that in order to determine that a permanent impairment exists, decision-makers must confirm that the ongoing impairment is a result of the work-related injury. Policy 11-01-05 directs decision-makers to review the clinical evidence in order to determine MMR and if there is any ongoing work-related impairment. A recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time that MMR is reached.

I appreciate that the Neurology Specialty Program’s initial assessment report of February 25, 2021 documents neck range of motion as being within normal limits. Even so, I find that the Case Manager’s decision letter of July 7, 2022 allowing initial entitlement to a neck strain is not properly before me.

I am aware that the June 6, 2024 report documents the physical examination completed by the occupational therapist on June 4, 2024 with normal results for all cervical planes of motion. However, there is no indication of if this is testing of active or passive neck range of motion. In contrast, the physical examination performed by the physician specialist on June 6, 2024 documents decreased active cervical range of motion on all measured planes of motion with no neck symptoms reported. While I am aware of the employer representative’s arguments regarding the worker’s level of effort, I find that the report of June 6, 2024 documents the worker’s low level of physical effort as being associated with the functional capacity testing, not the physical examination.

To summarize, I accept that there are sufficient objective clinical findings of an ongoing work-related cervical (neck) strain injury as of June 6, 2024. I observe that this date is approximately two years after the Case Manager accepts initial entitlement to a neck strain. I am not persuaded that the lack of reference to neck issues with the two Social Security Tribunal of Canada decisions (relating to CPP-D

entitlement) negates the objective clinical findings documented within the report of June 6, 2024. On account of these determinations, I accept that MMR for a permanent work-related neck strain was reached on June 6, 2024 with no additional physical limitations which are not already captured within the Case Manager’s decision letter of July 18, 2024.

CONCLUSION

I conclude the following:

The permanent offer of modified/accommodated duties is not suitable as it does not meet the policy definition of productive.

Entitlement to partial loss of earnings (LOE) benefits is in order from October 3, 2024 up to the inclusive date of this decision based on a direct-entry suitable occupation (SO) without training using 32 hours per week (or four days per week at eight-hours per day). Any potential SO is to be within the functional abilities accepted with in the Case Manager’s decision letter of July 18, 2024.

Payment of partial LOE benefits is to consider any applicable assignment or earnings as well as any potential Canada Pension Plan Disability (CPP-D) offset.

Beyond the date of this decision, and keeping in mind that the 72-month mark in this claim is December 16, 2026, the Case Manager is requested to determine if any short-term training would be appropriate for a potentially new SO within the accepted functional abilities for either a different position with the employer, or within the open labour market. The same limitation of 32 hours per week would apply. Any short-term training would need to incorporate the accepted functional restriction of limiting novel tasks or tasks requiring new learning.

The quantum of the 15% Non-economic Loss (NEL) rating for the permanent psychotraumatic impairment of Major Depressive Disorder with Anxious Distress is confirmed.

The request for an increase from the current 15% NEL rating is denied.

Entitlement is not in order to a worsening or recurrence of the non-organic (psychological) Major Depressive Disorder with Anxious Distress.
There is no entitlement to a worsening or recurrence of the work-related head (post-concussive) injury beyond the maximum medical recovery (MMR) level of June 30, 2022.
There is a work-related permanent impairment for a neck (cervical) strain injury which does not change the accepted physical functional limitations as of the MMR date of June 6, 2024.

A NEL determination is in order for the permanent work-related diagnosis of a neck strain.

The worker’s objection is allowed-in-part.

DATED NOVEMBER 24, 2025

Kevin MacMillan

Appeals Resolution Officer Appeals Services Division