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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 229 15
4/16/2015
R. McCutcheon

  • Psychotraumatic disability
  • Organic brain syndrome
  • Permanent impairment {NEL} (degree of impairment) (head)

The worker suffered head injuries when he slipped and fell from a platform in February 2006. The Board granted a 5% NEL award for facial disfigurement, a 40% award for psychotraumatic disability and a 20% award for neurological impairment. On appeal by the worker, the Appeals Resolution Officer revoked the award for facial disfigurement, confirmed the award for psychotraumatic disability and reduced the award for neurological impairment to 5%, and granted LOE benefits from 2012 based on deemed earnings. The worker appealed regarding the awards for neurological impairment and psychotraumatic disability, and the LOE benefits. On the evidence, the Vice-Chair confirmed the 40% award for psychotraumatic disability. Chapter 4 of the AMA Guides deals with the nervous system. Table 1 sets out spinal cord and brain impairment values. The Board referred to the section on complex integrated cerebral function disturbances, which provides ratings of 5% to 15% for ability to carry out daily living tasks, 20% to 45% for needing some supervision, 50% to 90% for needing confinement and 95% for inability to care for self. The Board originally rated the worker at 20% for neurological impairment, taking into account headaches and dizziness, and noting that the worker needed some supervision for certain tasks, and that he had poor executive functioning, which included poor concentration and short term memory, forgetfulness, trouble making decisions and difficulty retaining what he read. The ARO found that the neurological effects from the organic brain injury were overshadowed by the psychiatric issues. The ARO concluded that the neurological effects of the injury were limited to headaches and some periodic problems with balance and, accordingly, reduced the award to 5%. The Vice-Chair noted that the award for neurological impairment was intended to address the headaches and dizziness, diagnosed as post-concussional syndrome. It is important to avoid overlap between the award for neurological impairment and the award for psychiatric impairment. However, given the NEL assessor's comments on the severity of the worker's disability, the Vice-Chair found it appropriate to increase the NEL award for neurological impairment to 27%, which was in the lower spectrum of the range of 20% to 45% assigned by the AMA Guides to the category of needing some supervision. The worker was unable to work in any capacity and was entitled to full LOE benefits. The appeal was allowed in part.