Highlights of Noteworthy Decisions

Decision 454 15
B. Doherty
  • Future economic loss {FEL} (review) (after sixty months)
  • Psychotraumatic disability
  • Permanent impairment {NEL} (redetermination) (significant deterioration)

The worker suffered a low back injury in December 1993, for which she was granted a NEL award. The Board found that the worker also had entitlement for psychotraumatic disability and granted a 25% award. In Decision No. 223/12, the Tribunal increased the award for psychotraumatic disability to 40% as of the date it was originally rated in 2008.

The worker now appealed a decision of the Appeals Resolution Officer finding that the worker was not entitled to redetermination of the NEL award for either her low back or her psychotraumatic disability and denying full LOE benefits from March 2011.
The R2 final FEL review was in 2006. Under s. 44(2.1) of the WSIA, the Board may review FEL benefits after R2 if there has a significant deterioration that results in redetermination of the degree of permanent impairment (s. 44(2.1)(c)) or that results in a determination of permanent impairment (s. 44(2.1)(d)). Under s. 44(2.4), the Board may then review payments within 24 months of the redetermination or determination of the degree of permanent impairment.
In this case, the Board accepted entitlement for psychotraumatic disability in 2008. That would come within the exception in s. 44(2.1)(d). However, the time limit for review of FEL benefits in connection with this new area of permanent impairment expired in 2010. Therefore, to permit a review of FEL benefits, the worker must establish a significant deterioration of her low back condition or psychotraumatic disability since the last assessment.
Board policy states that a significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.
The worker's case for redetermination based on her low back impairment focused on increased pain over time. However, the Vice-Chair found that an increased level of reported pain is insufficient to establish a significant deterioration. Pain is not itself factored into the NEL rating of an organic impairment. Organic impairments are rated to reflect a level of pain normally associated with objective findings. If the extent of pain is inconsistent with organic findings, a worker may be entitled to an award on a non-organic basis. The Vice-Chair concluded that the evidence did not establish a significant deterioration in the worker's compensable low back condition since the last assessment.
The Board granted entitlement for psychotraumatic disability in 2008, with a 25% NEL award. In Decision No. 223/12, the Tribunal found that the NEL award should have been 40%, which is near the high end of the range in Class 3 of the Board's rating schedule. According to Board policy, a significant deterioration involves a marked degree of deterioration as demonstrated by a measurable change in objective findings. Where the impairment is non-organic, the requirement of a measurable change in objective findings is difficult to operationalize. The Vice-Chair stated that the evidence of the worker's functioning relative to the descriptions in the classes in the rating schedule must be considered in marking that determination. The significant deterioration should be established by specifics of the worsening of functioning so that the level of functioning can be considered in the context of the descriptions in the rating schedule.
In this case, the evidence did not suggest that the worker's functioning had deteriorated beyond the 40% level of impairment. She lived independently, was involved in a number of social and recreational activities, and managed self-care and household chores. The Vice-Chair concluded that the worker was not entitled to redetermination of her psychotraumatic disability award.
Since the worker did not come within any of the exceptions in s. 44(2.1), she was not entitled to review of her FEL benefits.
The appeal was dismissed.