Highlights of Noteworthy Decisions

Decision 1858 13
M. Crystal
  • Chronic pain
  • Health care (acupuncture)
  • Psychotraumatic disability
  • Permanent impairment {NEL} (degree of impairment) (chronic pain)
  • Health care (health care practitioner)

The worker suffered neck, back and shoulder injuries in 2007. The Board granted the worker a 50% NEL award for chronic pain disability. The worker appealed a decision of the Appeals Resolution Officer granting entitlement for chronic pain rather than psychotraumatic disability, denying an increase in the 50% award and denying payment for acupuncture treatment.

The worker has been diagnosed with depression but the predominant nature of her condition is consistent with a pain disorder. Accordingly, the Vice-Chair confirmed entitlement for chronic pain disability rather than psychotraumatic disability.
The Board rated the worker at the bottom of Class 4 Marked Impairment, which has a range of 50% to 90%. The Vice-Chair noted that Class 4 does not provide any direction as to when workers will fit near the bottom or top of the range, unlike Class 3 which describes impairments in the lower end of the range and in the higher end of the range. The Vice-Chair also noted that Class 4, with a 40% range, has the widest range in the rating schedule.
The worker clearly fit within Class 4, taking into account: the worker does not leave her home; she spends most of her days in bed; she requires continuous support and sheltering from her family; she requires significant assistance with self-care; she is emotionally labile.
Since the rating schedule does not provide guidance as to placement within Class 4, a useful approach is to consider the description of the upper range of Class 3 and the description of Class 5 and to determine whether the worker's circumstances are similar to those descriptions.
In this case, the worker's condition was not similar to the description in Class 5. Accordingly, the worker should not be placed in the higher end of Class 4. The worker's symptoms were significantly more severe that the description of the higher end of Class 3, although they were closer to Class 3 than to Class 5. Given the 40% range in Class 4, it may be useful to consider Class 4 as encompassing three sub-ranges, from 50% to 65%, from 65% to 75% and from 75% to 90%.
In the circumstances, the Vice-Chair concluded that the worker was entitled to a 65% NEL award at the high end of the lowest sub-range.
The worker received the acupuncture from a practitioner of Traditional Chinese Medicine. The Board denied reimbursement for the acupuncture because practitioners of Traditional Chinese Medicine is not currently members of a college of their health profession. Board policy defines a health professional as a member of a college of a health profession as defined by the Regulated Health Professions Act, 1991 (RHPA). Section 32 of the WSIA defines health care to include professional services provided by a health care practitioner. According to Board policy, a health professional is a member of a college of a health profession as defined by the RHPA and a health care practitioner as any health professional.
The ARO decision (dated in June 2012) noted that the Traditional Chinese Medicine Act, 2006, amended the RHPA to include practitioners of Traditional Chinese Medicine but that a college had not yet been established and concluded, on that basis, that the services of such practitioners could not be considered to health care. However, the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario has been established, as of April 2013. Accordingly, such treatment now qualifies as health care within the meaning of the WSIA and Board policy. The Vice-Chair concluded that the worker was entitled to reimbursement for acupuncture treatment provided by a practitioner of Traditional Chinese Medicine.
The appeal was allowed in part.