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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 1695 17
7/12/2017
E. Smith

  • Permanent impairment {NEL} (degree of impairment) (chronic pain)
  • Permanent impairment {NEL} (rating schedule) (whole person concept)
  • Labour market re-entry {LMR} (cooperation)
  • Loss of earnings {LOE} (deemed earnings)

The worker suffered a low back injury in 2003, for which the Board granted the worker a 27% NEL award. In Decision No. 1134/12, the Tribunal found that the worker had entitlement for chronic pain disability, that she was only capable of working 12 hours per week and that she was entitled to an LMR assessment. The Board then replaced the 27% organic award with a 15% NEL award for the chronic pain disability. The worker now appealed a decision of the Appeals Resolution Officer confirming the 15% NEL award and denying further LOE benefits. The rating scale for an organic low back injury is in the AMA Guides. It includes criteria based on diagnosis, as well as separate ratings to reflect restrictions on range of motion. The Vice-Chair was of the view that the range of motion findings do, to some extent, take into account pain factors, since a worker's range of motion may be limited by pain. Chronic pain disability ratings apply when there has been a finding that the worker's pain is predominantly from undetected organic sources or is psychological in origin and is inconsistent with the organic injury. When entitlement is recognized for chronic pain disability, a different rating scale applies. This rating scale does not directly rate the worker's pain condition, which is a matter of subjective experience, but rates a number of aspects of the worker's ability to function given the pain condition and the its psychotraumatic impact. The chronic pain disability rating schedule constitutes a very different basis for rating impairment than that found in the AMA Guides. There is no direct rating that reflects the organic diagnosis or physical limitations resulting from the organic diagnosis. Instead, it reflects how the worker copes with life, given the psychological impact of the impairment and pain. Because the rating is based on entirely different factors, it is possible, although unusual, for the chronic pain disability rating to be lower than the rating for the organic impairment under the AMA Guides. On the evidence, the Vice-Chair found that the worker was entitled to a 20% NEL award for chronic pain disability, at the low end of Class 3 of the rating schedule. When the Board replaced the 27% organic award with the 15% chronic pain award, it did not collect the overpayment. The increase in the chronic pain award from 15% to 20% will not result in any new payment to the worker but will merely reduce the amount of the uncollected overpayment. None the less, the 20% award was the appropriate award under the rating schedule. Decision No. 1134/12 found that the worker was capable of working only 12 hours per week but that she was entitled to an LMR assessment. Although it was somewhat unclear, the Vice-Chair found that she was bound by Decision No. 1134/12 that the worker was only capable of working 12 hours per week from the time of the accident in 2003 until Decision No. 1134/12 was released in 2012. After the LMR assessment, the Board could find that the worker was capable of working longer but it would have to be satisfied that there was medical evidence of improvement in the worker's function. The Board directed the worker to attend a psycho-vocational assessment in Ottawa, which would have involved one and a half hours of travel time. The worker requested that she be sent to a closer agency and refused to go to Ottawa. The Board found that the worker failed to co-operate, and then based LOE benefits on ability to work 21.5 hours per week. The Board had requested medical evidence to support the worker's request for accommodation. The worker did not provide any medical evidence. The Vice-Chair found that the requirement to provide medical evidence to support the accommodation was reasonable. The worker failed to co-operate. The Vice-Chair found no evidence of improvement in the worker's condition. The worker was entitled to ongoing LOE benefits based on ability to work 12 hours per week at minimum wage. The appeal was allowed in part.