- Non-economic loss {NEL} (calculation)
- Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
- Permanent impairment {NEL} (rating schedule) (AMA Guides) (combined values)
The issues to be determined in this appeal were: (a) the permanent impairment level rating applicable to the worker's psychotraumatic disability (PI); and (b) if the worker's psychotraumatic disability impairment level were to be adjusted, the adjustment required for the whole person impairment NEL award.
The appeal was allowed. The worker was found to be entitled to an increase of her psychotraumatic disability impairment level from 40% to 75%. This adjustment resulted in an increase from 56% to 82% for her whole person impairment NEL award.The worker's representative submitted that the worker should be rated in the Class 4 level with a rating of 65% or higher. The Vice-Chair noted that the Class 4 marked impairment category encompasses the largest range possible. There is a possible range of 45%, which comprises nearly half of the scale. It was noted that Board policy does not provide detailed guidance to assist in determining where within the broad Class 4 range a worker should fit.Additionally, the Vice-Chair referenced Decision No. 1858/13, which provides a framework that divides Class 4 into 3 sub-ranges. It also notes the parameters on assessing the upper and lower sub-ranges of Class 4: "If the worker's circumstances are similar to, but somewhat more severe than the upper range for Class III, a rating near the bottom of Class IV would be appropriate. If the worker's circumstances are similar, but somewhat less severe than the description for Class V, a rating near the top of Class IV would be appropriate."Next, given the increase by 5% in the current scale, and rather than widening the higher sub-range further, the Vice-Chair proposed widening the mid-range so that each sub-range includes an equal spread of 15 possible points. The Vice-Chair suggested the following three ranges: from 50 to 65%, from 65% to 80%, and from 80 to 95%. In summary, the Vice-Chair proposed that the following three sub-ranges of Class 4 should be adopted as follows: (i) Class 4-a (50-65%); ii) Class 4-b (65-80%); and (iii) Class 4-c (80-95%). Furthermore, the Class 4 range submitted by the worker's representative as the correct range, refers to marked impairment with ongoing continuous concerns, rather than episodic intervals. It is characterized by a higher frequency of symptoms. The Vice-Chair noted that, instead of intervals of being homebound or roombound, it is a more continuous state.In the present appeal, the worker's symptoms were not limited to episodic experiences, but rather, were an ongoing state for her. The worker experienced ongoing confinement in her home, mostly in her room. She was unable to stay home alone, with her husband and son having to arrange their work shifts so that someone could always be home with her. She left the house very rarely and only with direct supervision. It was noted that her family had to coax her to leave her room even for brief moments. Accordingly, the Vice-Chair determined that the worker's indicia of symptoms fit most appropriately within the Class 4 range.Moreover, the Vice-Chair agreed with the Vice-Chair in Decision No. 1858/13, that the upper sub-range, Class 4-c, should be for those situations that are almost, but not quite, at a Class 5 level. To find that sub-range appropriate, it was noted that one would expect to see episodic potential for harm to self or others, and/or a significantly less-lucid individual. Therefore, the Class 4-c sub-range was not applicable to the worker in this case.Furthermore, it was noted that the worker in the present appeal matched the features noted in Decision No. 1858/13. In addition to the features paralleled in Decision No. 1858/13, the worker had frequent outbursts of temper, and was plagued by frequent thoughts of the presence of non-existent people and dangers. As a further parallel example, the worker in Decision No. 2383/11 was rated within the Class 4-b range at 70%, and suffered from uncontrollable outbursts of temper, along with psychotic and auditory hallucinations. The Vice-Chair concluded that the presence of these additional features raised the worker from the Class 4-a sub-range into the Class 4-b sub-range. Overall, noting the worker's frequent outbursts of temper, frequent imagining of non-existent dangers and people, and the overall severe nature of her psychological condition, the Vice-Chair found that 75% was the appropriate rating within the Class 4-b sub-range for this worker (see also Decision No. 3079/01, in which the worker was awarded a 75% award). Finally, with respect to the worker's whole person impairment rating, the Vice-Chair noted that the AMA Guides provide instruction on combining NEL awards for specific areas of the body into a whole person impairment rating. In order to arrive at the worker's whole person impairment rating, the worker's two NEL ratings are combined by applying the Combined Values Chart. The two separate NEL ratings in this matter were 27% for the bilateral shoulder and 75% for psychotraumatic disability. This culminated in an 82% whole person psychotraumatic disability rating. Accordingly, the Vice-Chair found that the worker was entitled to an increase from 56% to 82% for her whole person impairment NEL award.