- Board Directives and Guidelines (psychotraumatic disability) (five year guideline)
- Psychotraumatic disability
- Permanent impairment {NEL}
- Permanent impairment {NEL} (degree of impairment) (respiratory impairment)
- Permanent impairment {NEL} (redetermination) (significant deterioration)
- Loss of earnings {LOE} (eligibility) (impairment)
The issues under appeal were as follows: a) whether the worker was entitled to benefits for psychotraumatic disability; b) whether the worker's 5% increase in his NEL award for silicosis was correctly determined as of December 2019; c) whether the worker was entitled to a NEL redetermination as of July 5, 2013, or December 5, 2017; and, d) whether the worker was entitled to LOE benefits.
The Panel allowed the appeal, in part.The Panel found that the worker was entitled to benefits for psychotraumatic disability. OPM Document No. 15-04-02 states that a worker's psychological condition must become manifest within 5 yeas of the injury, or within 5 years of the last surgical procedure. The worker's date of accident was in February 2006 and he was not diagnosed with depression/anxiety until August 2012. Tribunal case law has determined that the 5-year rule is a guideline that is not rigidly applied, and each case is judged on its own merits. The policy also contains an exception to the five-year rule. Entitlement may be accepted if the psychological condition becomes manifest within five years of a "surgical procedure". The Panel inferred that this exception was included because a surgery can cause the compensable injury to come to the forefront again. In the Panel's view, this is analogous to psychological conditions which manifest themselves following a decline in a worker's breathing abilities as well as the increasing stress caused by a progressive and fatal compensable illness and an inability to perform any work. In both cases, the worker's organic deterioration (one necessitating surgery and the other causing a decline in the worker's breathing) caused the compensable injury to come to the forefront again. As such, the exception applied in this appeal.The Panel found that the worker's entitlement to benefits for depression/anxiety was an indirect result of his compensable diagnosis of silicosis, and in particular, the worker had an emotional reaction to the diagnosis of silicosis. The Panel found that the worker's psychotraumatic disability was related to extended disablement and to non-medical, socioeconomic factors, the majority of which could be directly and clearly related to the work-related injury. The Panel also found that the worker's psychotraumatic impairment was permanent. Given that the worker's silicosis diagnosis was progressive, potentially fatal, and precluded the worker from performing work and/or many activities of daily living, it was likely his depression/anxiety was permanent. The worker was denied entitlement to a redetermination of his NEL award as there was no objective medical evidence supporting that the worker experienced a marked deterioration of his compensable silicosis impairment either on July 5, 2013, or on December 5, 2017. The Panel found that a 5% increase in the worker's NEL award as of the December 2019 NEL Clinical Specialist's redetermination decision was appropriate. The medical evidence supported that the worker has been unable to perform any work since 2010. He was advised by multiple physicians not to work due to his compensable conditions. The worker was entitled to full LOE benefits from June 3, 2010 until age 65.