Decision #98/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their permanent partial impairment rating of 6% has been correctly calculated. A videoconference hearing was held on September 10, 2024 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating of 6% has been correctly established.

Decision

The worker's permanent partial impairment rating of 6% has been correctly calculated.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 70/23, dated June 16, 2023. The background will therefore not be repeated in its entirety.

In summary, the worker has an accepted WCB claim for an injury to their left hand that occurred at work on July 9, 2015 when they were bitten by a resident. Initially, the WCB did not accept the worker’s claim for stress symptoms the worker was experiencing due to the workplace incident, however, after receiving further medical information and after a call-in examination with a WCB psychiatric consultant, it was determined the worker sustained an acute reaction to a traumatic event and was entitled to benefits related to the diagnosis of an Adjustment Disorder with mixed anxiety and depressed mood. A further call-in examination took place on October 5, 2016 at which time the worker was diagnosed with pre-existing Mood Disturbance and Substance Use and it was noted they had developed a Trauma and Stressor Related Disorder along with the Adjustment Disorder. At that time, permanent restrictions were established and as the employer advised they could not accommodate the worker’s restrictions, the worker was referred for vocational rehabilitation services by the WCB. The WCB’s vocational rehabilitation specialist created a Vocational Rehabilitation Plan for the worker, which commenced on April 25, 2017 and would end on August 18, 2017, at which time the worker would be deemed capable of employment within the National Occupational Classification set out in the Plan. On August 16, 2017, the worker was advised their wage loss benefits would be reduced on August 18, 2017 as their Plan was ending of as that date.

The worker contacted the WCB on November 16, 2018, to request the WCB reconsider their psychological condition and place them back on full wage loss benefits as they felt they were unable to work due to their ongoing psychological difficulties. The worker’s file was reviewed by a WCB psychological advisor and on November 19, 2018, the worker was advised by the WCB there would be no change to the decision they were capable of working within their permanent restrictions. The worker then requested reconsideration of the decision to Review Office on November 22, 2018, with Review Office upholding the WCB’s decision the worker was not totally disabled from work on January 15, 2019. The worker’s representative requested Review Office reconsider the worker’s deemed earning capacity on January 27, 2020. Review Office upheld the previous decision on the deemed earning capacity on February 5, 2020. The worker’s representative then appealed the decisions to the Appeal Commission and a hearing was held on April 18, 2023. Pursuant to Appeal Commission Decision No. 70/23 dated June 16, 2023, it was determined the worker’s vocational rehabilitation plan and deemed earning capacity were not appropriate and the worker’s file was returned to the WCB for further adjudication.

As part of the adjudication of the worker’s file, a call-in examination took place with the worker by a WCB medical advisor on August 9, 2016 regarding the worker’s left-hand injury. After examining the worker, the advisor opined the worker was entitled to a 1% permanent partial impairment rating for scarring of their left hand.

The worker’s representative contacted the WCB on April 9, 2019 to inquire regarding the worker’s entitlement to a permanent partial impairment rating related to their psychological injury. On June 14, 2019, the worker’s file was reviewed by a WCB psychological consultant who determined the worker was entitled to an examination for a psychological permanent partial impairment rating and a call-in examination was arranged for July 17, 2019. After examining the worker, the consultant provided a permanent partial impairment rating in the psychological domain for the worker of 5%. The WCB psychological consultant noted the worker’s previous assessment that had been conducted, including assessments by the consultant themselves, and noted the worker had major pre-existing conditions, including Alcohol Use Disorder in sustained remission and a chronic Cannabis Use Disorder, and as such, the impairment rating calculated using the WCB’s formulas at 10%, was reduced by 50% due to those conditions. On July 29, 2019, the worker was advised of the calculation and the resulting permanent partial impairment award. On September 19, 2019, the worker’s representative contacted the WCB to request a copy of the table used by the WCB’s psychological consultant to calculate the worker’s rating, noting the consultant’s report described using the WCB’s Mental Health Rating Schedule. A copy of the tables used were provided to the worker’s representative, along with a file update on October 25, 2019.

On November 6, 2019, the worker’s representative contacted the WCB to advise of an error in the addition of the total scoring on the first page of the table, noted to be the Brief Psychiatric Rating Scale. It was noted the total was indicated to be 36, which would entitle the worker to a 10% impairment rating, however, the total should be 42, which would bring the rating to 15%. The representative requested the rating be reviewed again by WCB Healthcare. The worker’s WCB case manager met with the WCB psychological consultant on November 6, 2019 to discuss the rating. The consultant acknowledged the calculation error, which would bring the rating to 15%, however, it was noted the overall median scoring calculated when assessing the worker’s psychological condition remained at 10%, which was reduced by 50% for the major pre-existing conditions and the worker’s representative was advised there would be no change to the worker’s permanent partial impairment rating on the same date.

The worker requested reconsideration of the WCB’s decision on their permanent partial impairment rating to Review Office on January 7, 2020. In their submission, the worker noted the WCB psychological consultant did not take into account the severity of their psychological and physical injuries that resulted from the July 9, 2015 workplace incident and further, noted they required ongoing and long term treatment for their psychological condition. The worker also noted the ratings on the tables used by the consultant were “constantly low” and based on incorrect information and as such, their rating should be higher. The worker also noted their belief the 1% rating for scarring should also be higher as they continued to experience symptoms in their left hand from the workplace incident.

Review Office determined on February 18, 2020, the worker’s permanent partial impairment rating of 6% was correct. Review Office accepted and agreed with the August 9, 2016 opinion of a WCB medical advisor noting the worker had a well-healed scar over the dorsum of their left hand, along with 2 smaller scars over the metacarpophalangeal joints and found the worker’s cosmetic impairment to be 1%. With respect to the worker’s impairment rating for a psychological injury, Review Office again accepted and agreed with the July 17, 2019 opinion of the WCB psychological consultant that the worker’s impairment rating was 5%, representing a calculation of 10%, reduced by 50% for major pre-existing conditions. Review Office determined the WCB’s calculation of a permanent partial impairment rating of 6% was correct.

The worker filed an appeal with the Appeal Commission on May 6, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (“Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect on the date of the compensable accident are applicable to the worker’s appeal.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Section 37 of the Act outlines that compensation under the Act includes an impairment award, as provided in s 38.

Subsection 38(1) of the Act provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment."

The WCB established WCB Policy 44.90.10, Permanent Impairment Rating (the PPI Policy) to provide a method for determining the entitlement rating arising out of an injury or disfigurement. The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy. Section 20 of Schedule A of the PPI Policy provides a step-by-step analysis.

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions ("Pre-Existing Policy"), to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy defines a pre-existing condition as “any medical condition the worker had prior to their workplace injury. Pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery.”

Pursuant to the Pre-Existing Policy, if a worker has a pre-existing condition and the WCB determines they have suffered an impairment, the worker is eligible for an impairment rating based on the difference between the total rating and the rating assigned to the pre-existing condition. The WCB will assign a fair rating to the pre-existing condition based on the best information available.

When practical, the WCB will assign a rating for the pre-existing condition based on the Schedules of the PPI Policy or other impairment schedules (e.g. the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment). If this is not possible, the WCB will determine the impairment rating for the pre-existing condition as follows:

i. A pre-existing condition that is determined to be minor will be assigned a 0% impairment rating;

ii. A pre-existing condition that is determined to be major, as described below, will be assigned an impairment rating equivalent to 50% of the impairment rating for that body structure.

A pre-existing condition is considered to be major for the purpose of the impairment rating if:

i. The impairment was/is significantly affected by the pre-existing condition; or 

ii. The WCB has determined that the workplace injury enhanced the pre-existing condition; or 

iii. The WCB has determined that the pre-existing condition contributed to the workplace injury.

Employer’s Position

The employer did not participate in the appeal.

The Worker’s Position

The worker represented himself at the hearing. He made an oral submission outlining his position and answered questions posed to him by members of the appeal panel.

At the commencement of the appeal hearing, the worker confirmed with the panel that they were not pursuing an appeal of the 1% ratable cosmetic impairment for scarring on their left hand. The worker confirmed that their appeal was limited to the 5% impairment rating for their psychological injuries. The Panel did not address or make any determinations in relation to the worker’s 1% ratable cosmetic impairment for scarring on their left hand.

The worker’s evidence consisted of his prior written submissions presented to the WCB, and to the Review Office, as well as answers to questions from Panel members.

The worker’s position is that the 5% impairment rating for their psychological injuries was incorrectly assessed based on what the worker alleges as inaccurate information about his character. In particular, the worker maintains that they did not have a Pre-existing condition, nor were they an alcoholic, or an individual who has issues with substance misuse involving marijuana.

The worker emphasized that their nature of work, which involves constant interaction with staff and youth, would have made it very difficult to hide substance misuse. The worker testified that they never received any complaints or issues at work relating to alcoholism, issues involving marijuana use, or behavioral issues with staff members.

The worker's position is that their current use of alcohol and marijuana should not be considered as a pre-existing condition because they were not dependent or addicted to alcohol, and they only used marijuana recreationally. The worker relies on their position that since they did not receive any complaints or citations involving alcoholism or marijuana use while they were employed, they could not have had any pre-existing conditions. Therefore, the worker argued that they never had, nor do they currently have, any pre-existing conditions.

Lastly, the worker also took the position that their Brief Psychiatric Rating Scales form (“BPRS form”) were scored incorrectly. In particular, that the BPRS form total should be 42, instead of 36, and that the impairment rating from the BPRS form should award a 15% instead of 10%. The worker also noted that they should have been rated higher in the BPRS scale for items including but not limited to, ‘Bizarre Behaviour’ and ‘Grandiosity’.

Worker’s Witness

The worker produced a witness; their previous supervisor at their former place of work ("witness”). The witness provided evidence by way of testimony and answered questions posed to them by the worker, and by the panel. The witness testified that they have known the worker for approximately 28 years. The witness’ evidence consisted of their recollection and opinion that the worker was a reliable employee, one of the most dependable staff members, and was an individual who mentored others. The witness also emphasized that they had no recollection of any complaints involving the worker and other staff members, nor were they aware of any allegations of marijuana use or any issues involving alcohol on the part of the worker.

Analysis

This appeal requires a determination of whether the worker’s 5% impairment rating for a psychological injury was correctly established. The crux of the worker's appeal is that their rating is premised on the incorrect information that the worker had a pre-existing condition, which reduced the worker's psychological impairment rating by 50%.

For the appeal to succeed, the worker would have to demonstrate that they did not have a pre-existing condition, and/or that their impairment rating was erroneously calculated arising from an error on their BPRS form. As outlined in the reasons that follow, the panel was not able to make such finding and therefore the appeal is denied.

The first question for the panel to determine is whether the worker had a pre-existing condition as defined in the Pre-Existing Policy.

As part of the appeal, the panel was provided with the worker’s WCB file along with their medical records. The records were reviewed by the panel and the following information was found:

- July 17, 2019 Psychological PPI Call-in Examination notes from a WCB psychological advisor provide the following:

o “With this cumulative information, the claimant had pre-existing conditions that had been outlined by the psychiatrist who [they] had seen dating to September 17, 2015, where [they] had long standing Depression following [their] relationship ending, [they] had what was diagnosed as a Major Depressive Disorder, [they] had a lengthy history of alcohol use, reported from the age of 18 to 55, with [their] diagnosis associated with that being of an Alcohol Use Disorder in sustained remission, and [they] had a Cannabis Use Disorder, with a longstanding pattern of using approximately 1 gram of cannabis per day with this seen to be a perpetuating factor for [their] symptoms at that time, in the context of what was diagnosed as being Narcissistic Traits.

Hence, the claimant has pre-existing conditions that would be seen to have been major, as [their] claim has been prolonged and complicated given these pre-existing factors, and with [their] impairment significantly affected by the pre-existing conditions given the cumulative reporting from the psychiatrist and treating psychologist.”

- February 19, 2017 call-in examination by a WCB psychological advisor states:

o “More likely than not, the claimant's pre-existing Alcohol and Cannabis Use Disorder and Depressive Disorder in the context of significant pre-existing contextual family relational stressors and ongoing family relational stressors have significantly prolonged his recovery from the workplace injury.”

- September 14, 2016 call-in examination by a WCB psychological advisor states:

o “[the worker] had been seen to have a Post-Traumatic Stress Disorder (PTSD) when examined psychiatrically by [treating psychiatrist] on September 17, 2015. This was in the context of a Major Depressive Disorder, a Cannabis Use Disorder, an Alcohol Use Disorder in Sustained Remission and self-absorbed traits.

o [the worker has] been seen by a psychologist, [treating psychologist], whose report from June 14, 2016 indicated that the claimant had a Post-Traumatic Stress Disorder and an Unspecified Depressive Disorder with Melancholic Features.”

o “there had been a history of workplace stress with aggressive clients and having been bitten as well. [The worker] described [their] work as "stressful and violent." [The worker] had contemplated retiring. [The worker] had major stressors at that point related to the recent physical assault and financial stress related to a divorce.”

- June 14, 2016 Report from [treating psychiatrist] states:

o “The results of the clinical interviews and psychological measures indicate that [the worker] meets DSM-5 criteria for the following: Post Traumatic Stress Disorder (309.81), Unspecified Depressive Disorder with Melancholic Features, Moderate (311)”

- September 17, 2015 Report from [treating psychologist] states:

o A prominent factor for much of [the worker’s] adult life has been alcohol as [they] reported drinking nearly every day from the ages of 18-55 years old. The extent of [their] alcohol use fluctuated, but averaged approximately 6 drinks of alcohol per day. This pattern of use was exacerbated in the context of the divorce, and [the worker] endorsed numerous depressive symptoms over the years, including decreased energy from [their] teaching assistant job in June 2013.”

o “Additionally, [the worker] regularly uses marijuana, smoking approximately one gram per day. This has been a longstanding pattern. [the worker] does not currently use any other recreational drugs. [They] remotely experimented with magic mushroom as a young adult.”

o “DIAGNOSES: 

 Major Depressive Disorder; Post-Traumatic Stress Disorder; 

 Marijuana Use Disorder; Alcohol Use Disorder - in sustained remission 

 Narcissistic Traits”

- July 15, 2015 Crisis Response Center’s CRC Referral - Clinical Summary Report states: 

o Suicide Risk - Other (Suicide – Client denies SI/plan/intent at time of assessment. Client states having thoughts of hanging himself “off and on” post-divorce 7 years ago. Client reports not acting on thoughts stating, “I’m quite scared” Client reports his children are his reason for living. Client reports no history of attempts.)

o IMPRESSION: Client endorsing symptoms of anxiety and difficulty managing stress and unresolved issues from the past. Client unable to manage work at this time due to difficulty managing stress.”

Although the worker, during their oral submissions, emphasized that their work was not impacted by alcohol use or by marijuana use, the panel notes that the Pre-Existing Policy does not consider whether a claimant’s pre-existing injury impacts their employment. Rather, the Pre-Existing Policy requires a determination of whether the pre-existing condition affected or contributed to the injury itself.

The Panel notes that the worker’s medical records provide a summary of significant psychological issues on the part of the worker which would have met the criteria to be considered as a major pre-existing condition under the Pre-Existing Policy. The Panel is satisfied based on the medical records provided to the panel, that it is more probable that the worker, during the time of the injury, had a major pre-existing condition that significantly prolonged the worker's recovery.

The second question for the panel to determine is whether the impairment rating was correctly assessed, in the context of a summation error in the worker’s BPRS form, and in the context of what the worker claims the ratings should be for the individual criteria on the BPRS form.

The worker alleges that their impairment rating is based on their BPRS form. The Worker raised that their BPRS form was incorrectly summed to 36, when the total should be 42. A 42 rating on the BPRS form would yield an impairment rating of 15%, instead of the 10% that the worker was initially awarded.

The PPI Policy and its Schedule A outlines the process to determine a mental health impairment rating. The rating is determined in accordance with specific scales, methods, tables and scores from the American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition, Fourth Printing: October 2014, Chapter 14, "Mental and Behavioral Disorders".

The scales utilized in determining a psychological impairment rating are as follows:

• Brief Psychiatric Rating Scale (“BPRS”) - an instrument for assessing the presence and severity of symptoms and signs in an individual with a mental health illness.

• Global Assessment of Functioning Scale (“GAF”) - a rating scale for evaluating overall symptoms, occupational function, and social function.

• Psychiatric Impairment Rating Scale (“PIRS”) - a measuring system of different areas of function in individuals diagnosed with a psychological condition.

The method used in determining an impairment rating requires an assessment of all three scales; the BPRS, GAF, and PIRS. The final rating that would be awarded to a worker would be the middle value of the BPRS, GAF, and PIRS impairment scores.

Therefore, the worker’s impairment rating is not based solely on the BPRS, but also the GAF and PIRS scale.

On November 6, 2019, and in direct response to the issue of the calculation of the worker’s BPRS rating, the WCB psychological advisor provided a memo to file which states the following:

“I have reviewed the psychological PPI rating scales given the error in the addition on the BPRS which would lead for the claimant's Impairment Score here to be 15%.

This would be combined with the other 2 ratings of 10%, with the impairment scores being now 15%, 10%, and 10%, with the middle or median impairment score being 10% which would be the PPI rating, as was the case previously.

Please note here that, as per discussion with health care admin including the Chief Medical Officer, the psychological PPI Rating Scales will be placed on the claim files as a matter of course on a go forward basis.

As well, the "middle value", the "final rating" is the median rating from the 3 impairment scores.

The Panel accepts the WCB psychological advisor's explanation contained in his November 6, 2019 memo. The said memo is a reasonable explanation as to why the worker’s final rating is maintained at 10%.

During the review of the worker’s medical records, the worker also raised a concern with the ratings found on his BPRS form. In particular, the worker was rated ‘1’ under ‘Bizarre behaviour’ or that he only received a ‘2’ on under Grandiosity. The worker raised that this rating (amongst others) is too low, as the worker recalled that during his assessment of July 17, 2019 with the WCB psychological advisor when the BPRS form was filled out, the worker pantomimed biting the WCB psychological advisor on the hand.

The WCB psychological advisor's explanation of his assessment on July 17, 2019 can be summarized as follows:

“[The worker] was fluently verbal and clearly of bright sounding, but today in contrast to when I saw [them] previously on September 14, 2016, [they were] much more animated, [they were] reactive, [they were] energized, and [they were] clearly activated by this appointment for the Permanent Impairment Rating and, over the fact that [their] salary replacement had been reduced as [they] had been assessed to be able to be employed in [their] deemed occupational code. 

… 

[Their] thought process generally was clear and coherent albeit for being digressive and over-inclusive, although this decreased over the course of time when [they were] more settled with the process of the assessment and not needing to demonstrate [their] distress. 

… 

Through the time I saw [them], [they] had good attention and concentration, language and communication skills were intact, [they were] trim and healthy appearing, and as I have indicated, [they were] over-inclusive, reactive, somewhat dramatic, and perseverative with [their] claim focus.

… 

despite [the worker’s] ongoing symptomatologies, [they are] functional, travels around the community, is independent, has been seen to be able to work although with permanent restrictions, and has pre-existing issues and ongoing issues.”

The assessment of the worker by the WCB psychological advisor accounts for the totality of the worker’s medical history dating as far back as at least 2015. It appears to the Panel that the BPRS assessment was not limited to a single point in time (the visit to undergo the assessment itself) as the worker appears to suggest in his written submissions.

The worker was asked by the panel whether he has conducted another BPRS assessment with another medical professional and the worker indicated that they had not. The panel does not accept the context provided by the worker of what ‘Bizarre Behaviour’ would be for the purposes of a psychological assessment.

Given the medical records made available to the Panel, the Panel has not found any reasonable basis to arrive at a different conclusion from the impairment rating determined by the WCB psychological advisor.

In summary, on the basis of the totality of the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker did have a pre-existing condition. The worker’s psychological impairment rating being reduced by 50% pursuant to the Pre-Existing Policy resulting in a net total of 5%, is the correct assessment.

The appeal is denied.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of November, 2024

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