Highlights of Noteworthy Decisions

Decision 714 22
06/06/2022
G. Dee
  • Non-economic loss {NEL}
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Permanent impairment {NEL} (redetermination) (significant deterioration)
  • Health care (support dog)
  • Health care (medical aid) (marijuana)

The worker sought an increase in his 20% NEL award for PTSD, a redetermination of his NEL award on the grounds that his PTSD condition had deteriorated since the time it was initially assessed, entitlement for the costs associated with a service therapy dog, and entitlement for reimbursement of the costs of medical marijuana purchased prior to March 1, 2019 (the date the WSIB's current policy on medical cannabis came into effect).

The appeal was allowed.
The Vice-Chair noted that there was insufficient evidence to categorize the worker's condition in 2012 at the very top end of class 3, as there was a lack of bizarre or phobic behavior. While the worker preferred to spend time in his room alone quite often, his behavior was not such that he would be described as being house bound or room bound. The worker had noise intolerance but it was not considered severe.
Within respect to the upper middle section of Class 3, the Vice-Chair noted that the worker appeared to have all but two of the listed symptoms. There was no description of a loss of appetite, or of objective physical discomfort outside of treatment sessions; however, the Vice-Chair noted that physical discomfort is not typically associated with PTSD, but affect regulation is, and the worker demonstrated difficulties with emotive functioning and rage, which are associated with PTSD. There were also other symptoms present such as distress at the recall of events, which are not part of the rating scale itself, however, in the Vice-Chair's view, were similar to experiencing significant levels of anxiety that are described within the fourth, and most severe, paragraph of Class 3 of the rating scale.
The Vice-Chair concluded that the worker's PTSD condition as it existed at the time of the initial NEL determination in 2012, was at the top end of the upper middle section of Class 3 of the rating scale, and should therefore be rated at 35%.
Furthermore, the Vice-Chair found that the medical evidence regarding the worker's PTSD condition since 2012 was indicative of a worsening of the worker's condition, such that the worker would be entitled to a redetermination of his NEL award under the provisions of subsection 47(9) of the WSIA, which was applicable to the worker's claim by virtue of section 106 of the WSIA. The Vice-Chair noted that there appeared to be an increase in anxiousness and depression. There was increased difficulty for the worker with respect to being outside the home environment, as well as increased reliance on family members and a support dog for coping. The worker was found to be entitled to a redetermination of his NEL award for his compensable psychological condition.
With respect to the worker's entitlement for the costs associated with a service dog, the Vice-Chair noted that, although the worker's specific circumstances were not described as ones that would allow for entitlement under OPM Document No. 17-06-04, they were analogous to the circumstances of a completely deaf worker who is not considered seriously impaired, but would be allowed a service therapy dog. The Vice-Chair allowed the appeal on the Merits and Justice principle, and noted this as being consistent with the intended application of OPM Document No. 17-06-04.
In addition, it was noted that the medical evidence indicated that the service therapy dog did not just enhance the worker's "quality of life", it also showed that the dog actually lessened the worker's compensable psychological impairment. It would therefore be considered "health care" and "necessary as a result of the injury" under section 50 of the WCA. Although the worker did not have a NEL rating of 60% or higher, the Vice-Chair did not see why the exception could not apply to a worker with a significant psychological impairment, which also significantly restricted their mobility. The Vice-Chair noted that the worker's circumstances were simply not contemplated at the time of creating the policy, and thus, workers with psychological impairments had not been intentionally precluded.
Furthermore, it was noted that the provision of the support dog was not provided solely for the purpose of enhancing quality of life, but also for the purposes of treatment and alleviating the extent of the worker's impairment. As such, the Vice-Chair determined that it would be considered allowable as health care, which is necessary under section 50 of the WCA as a result of the worker's compensable injury, without consideration of whether the worker is severely impaired.
Finally, the Vice-Chair accepted that the worker's use of medical marijuana was appropriate in the treatment of his PTSD symptoms, and the worker was entitled to reimbursement for the costs of medical marijuana, for the period of time prior to March 1, 2019.