Highlights of Noteworthy Decisions

Decision 831 22
E. Smith
  • Non-economic loss {NEL} (calculation)
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Permanent impairment {NEL} (rating schedule) (AMA Guides) (combined values)
  • Post-concussion syndrome
  • Permanent impairment {NEL} (degree of impairment) (head)

The issues under appeal were: a) the quantum of the worker's NEL award for post-concussive syndrome at the MMR date of January 13, 2016; and, b) the quantum of the worker's NEL award for mental and behavioral disability at the MMR date of June 15, 2018.

The appeal was allowed, in part.
The Vice-Chair addressed the issue of how the worker's psychological/emotional impairment was to be addressed, and how the Board policy and the AMA Guides were to be read together to determine the quantum of the NEL award for the non-organic psychological/emotional impairment. The Board rated the worker's non-organic psychological symptoms under Document No. 18-05-11. However, Chapter 4 of the AMA Guides, the Nervous System, also refers to emotional disturbances as one of the seven subcategories to be rated under those provisions. The question was how these different provisions applied with respect to the worker's impairment in 2018. There were three alternative ways examined in this decision.
The Vice-Chair ultimately agreed with Decision No. 3351/18 and Decision No. 1249/17, which found that it was reasonable to assess the psychotraumatic symptoms first on a holistic basis. It was then appropriate to adjust the award to reflect whatever portion of the psychotraumatic award is determined to be overlapping with the organic award. This is because although the separate awards may reflect the different causation and etiology of the injury assessed, many of the relevant symptoms, such as the effects of headaches, dizziness, or effects on memory or concentration, or of the social effects of those symptoms, can result directly from the organic brain injury or at times be interrelated with the psychotraumatic secondary effects.
The Vice-Chair found that a 35% rating was the appropriate rating under OPM Document 18-05-11. In addressing how the 35% award was to be adjusted to account for the overlap with the organic award of 15% (which was also confirmed), the Vice-Chair determined that it required a full adjustment. The result was that the award granted by the Board for psychotraumatic impairment, of 20%, was the correct award. The Vice-Chair confirmed the 20% award granted by the Board under OPM Document No. 18-05-11, consisting of 35% minus the 15% previously granted.
With respect to the application of the Combined Values Chart, the Vice-Chair noted that its purpose is not to account for duplication in the application of the ratings themselves. Rather, it generally addresses situations in which there is no question of duplication in the symptoms rated. In the Vice-Chair's view, the Combined Values Chart applies when discrete and separate compensable impairments have been identified. The Chart was not applied in this case, as the 15% impairment assessed for organic injury under the AMA Guides was fully overlapping with the holistic impairment assessed under OPM Document No. 18-05-11, and did not constitute discrete injuries. The impairments were therefore insufficiently distinct for the Combined Values Chart to apply.