Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The review took place at the Glynmill Inn in Corner Brook, NL on June 4, This was a paper review conducted in accordance with Section 28(7) of the Workplace Health, Safety and Compensation Act, R.S.N Introduction 3. The worker sustained an injury to her neck and head in 1997 while employed at a daycare center. Following medical investigation and treatment, it was determined that she was unable to return to work and was awarded Extended Earnings Loss (EEL) benefits. 4. The worker was assessed for a Permanent Functional Impairment (PFI) award entitlement on September 13, 2012 and received a 10% rating. 5. On April 29, 2013, subsequent to the worker s appeal that she had not been assessed for all her injuries related to the work injury, the Commission sent the claim to the Case Manager to review and ensure that the worker s chronic headaches, vertigo, visual problems and dizziness had been included in the PFI assessment. 6. The Case Manager referred the claim to the Medical Consultant for an opinion as to whether these issues were addressed in the PFI assessment. 7. On May 7, 2013 the Medical Consultant responded, advising the Case Manager to contact the PFI Assessor for the answer to the question as to whether the issues noted had been taken into consideration. 8. On June 4, 2013 the assessing PFI Medical Consultant responded and advised that, when recommending the 10% impairment rating, she had considered and taken into account the fact that the worker did complain of headaches, vertigo and balance problems. 1

2 9. On September 4, 2013, the Case Manager advised the worker that the September 13, 2012 PFI assessment had been reviewed, in consultation with the Medical Consultant who had conducted the PFI assessment and who had advised that the symptoms of headaches, dizziness and vertigo had been considered and incorporated in the PFI assessment. The Case Manager advised that the 10% PFI rating was appropriate. 10. On September 30, 2013, the worker s representative, Mr. White, presented the Commission with a submission, objecting to the September 4, 2013 decision by the Case Manager. 11. On November 29, 2013 the Internal Review Specialist rendered a decision that upheld the September 4, 2013 decision by the Case Manager. 12. It is the November 29, 2013 decision that is before the Review Division. Issue 13. The worker is requesting a review of the Internal Review Specialist s decision dated November 29, The worker is requesting that I find the Commission erred in deciding that her symptoms of headaches, vertigo and dizziness were taken into consideration when it determined that her PFI was a 10% rating. Outcome 14. I find the Commission has erred in not carrying out the proper adjudication and analysis of the worker s impairment. The decision does not record and reflect how the worker s headaches, vertigo and dizziness were considered in the PFI assessment dated September 13, 2012, and how they did or did not affect the 10% rating impairment awarded. The Commission is directed to carry out an analysis of the symptoms in question in accordance with Section 60, and provide a new decision which reflects how the symptoms affect the PFI rating selected. Legislation and Policy 15. The jurisdiction of a Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to 2

3 (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and 3

4 (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 16. Other relevant sections considered are Sections 19(1)(b) and 73(1) of the Act, along with Policy EN-01: Permanent Functional Impairment. Relevant Submissions and Positions 17. Mr. White, in his written submission on behalf of the worker, references the relevant legislation and policy, noting that the Commission does have the discretionary authority to determine the existence and degree of impairment related to a worker s injury. He notes that Section 73 of the Act states that the injured worker shall be compensated for impairment related to the work injuries and, through Policy EN-01: Permanent Functional Impairment, a worker s entitlement is determined through the application of the Commission s Impairment Rating Schedule. 18. Mr. White states that both the Case Manager and the Internal Review Specialist concluded that the worker s headaches, vertigo and dizziness were included in the 10% PFI rating, however, he submits that their decisions were weighted too heavily on the opinion of the assessing PFI Consultant. 19. Mr. White states that the PFI rating of 10% was arrived at using the Commission s Rating Schedule for Spinal Injury. He noted that this Schedule does not reference any criteria or ratings for headaches, vertigo or dizziness. Therefore, he submits that the Commission has not rated these impairments. 20. Mr. White submits that the headaches, vertigo and dizziness should be rated separately and, if the Commission s Rating Schedule is unable to evaluate these conditions, then the use of the American Medical Association s Guides to the Evaluation of Permanent Impairment (AMA Guides) should be considered. 21. Mr. White notes that the Consultant stated that she was aware of the headaches, vertigo and dizziness when she performed the PFI, however, he submits that she has not demonstrated how these impairments were rated. 22. The Internal Review Specialist, on November 29, 2013, noted that the Internal Review Division, following Mr. White s appeal, referred the claim back to the Case Manager to investigate and determine if the headaches, vertigo and dizziness had been addressed in the PFI assessment. 23. The Internal Review Specialist states that the Commission s Medical Consultant reviewed the claim and, on May 7, 2013, responded that the Commission should contact the PFI 4

5 Assessor for clarification on these issues. The Internal Review Specialist noted that the assessing Medical Consultant was contacted and, in a memo dated June 4, 2013, advised that she did take into account the worker s headaches, cervical vertigo and balance problems when arriving at a 10% rating. 24. The Internal Review Specialist states that the Medical Consultant uses the Rating Schedule as a guide and has the authority to use his/her judgment to estimate the percentage of total body impairment, in conjunction with the Rating Schedule and/or the AMA Guides. 25. The Internal Review Specialist concludes that the Medical Consultant did confirm that the headaches, vertigo and dizziness were taken into account in arriving at a 10% rating, therefore, the Case Manager s decision dated September 4, 2013 was upheld. Analysis 26. It is the position of the worker that there is no evidence in the file to confirm that the Medical Consultant had included the worker s symptoms of headaches, vertigo and dizziness in the PFI rating award. The worker submits that the Rating Schedule, relative to spinal injuries that the Medical Consultant referenced in the assessment, does not provide criteria to analyze the worker s impairment, relative to these symptoms. 27. The Commission has accepted the opinion of the assessing Medical Consultant that she did consider and incorporate the headaches, vertigo and dizziness symptoms into her PFI assessment, and it is part of the 10% rating impairment she has recommended for this worker. 28. I note that an Internal Review decision, dated April 29, 2013, relative to an appeal on the PFI award for psychological problems and chronic pain, wrote, in part: Mr. White has also referenced that you have not been assessed for all your physical injuries due to the work injury. He references your issues of chronic headaches, vertigo, visual problems, dizziness, etc. For the record, I do agree with Mr. White in that these issues have not been addressed particularly with respect to whether there is entitlement to PFI as a result of same. Therefore, I am directing the Case Manager to ensure these issues are reviewed to determine whether you have PFI entitlement for same 5 (emphasis added) 29. The file information confirms that the Internal Review Specialist, in his decision of April 29, 2013, wrote in his decision The Case Manager is directed to ensure your entitlement for PFI is addressed with respect to your chronic headaches, dizziness, visual problems, and vertigo, as you report. 30. Relative to the visual problems, I reference an sent from the worker s representative, Mr. White, to the Case Manager, dated July 23, 2013 that states:

6 I spoke to [the worker] this evening. While she did have visual problems for some time, they are resolved at this time. Therefore, we are requesting you proceed with the PFI entitlement review for headaches, vertigo and dizziness. [The worker] continues to have these problems, particularly chronic and severe headaches. Let me know if you require anything else. Thanks. I reference this document to provide clarification as to why the visual problems have been removed from the worker s issues that she has requested be included in her PFI assessment. 31. The file information confirms that the Case Manager, in following the direction from the Internal Review Specialist in his decision of April 29, 2013, wrote to the Commission s Medical Consultant, stating the following in a May 6, 2013 Claim Note: This worker with a cervical injury was recently assessed for a PFI, report of which is attached. The workers representative appealed this decision and the Internal Review Division has directed that the file be reviewed with respect to headaches, dizziness, visual problems and vertigo. Could you please advise if there is entitlement to a permanent functional impairment award for these symptoms and if the information on file indicates that this worker should be reassessed for these issues. Your comments would be appreciated. 32. The Claim Notes indicate that the Medical Consultant responded on May 7, 2013, stating, You may wish to ask for clarification from the PFI assessor to determine if these issues were taken into consideration as part of the rating assessment 33. On May 23, 2013 the Case Manager sent a memo to the assessing PFI Medical Consultant, relative to the September 13, 2012 PFI assessment, stating: In your PFI assessment of [the worker] dated September 13, 2012 you make reference to the client s problems of headaches, cervical vertigo and balance problems. Could you please advise if these symptoms were taken into consideration and incorporated into the final rating of 10%. Your comments would be appreciated. Thank you very much. 34. On June 4, 2013 the PFI assessing Medical Consultant responded, stating: The PFI assessment of [the worker] was performed September 13, 2012 by myself. At that time, I found [the worker] eligible for a PFI rating eligibility of 10%. [The worker s] diagnosis at that time was chronic pain syndrome, chronic soft tissue injuries of her neck with cervical vertigo. The findings of my assessment at that time, which I evaluated her for her neck injury and resulting issues, I felt that a 10% rating was suitable for her findings on physical exam and did, at that time, take into account the fact that she did complain of headaches, cervical vertigo and balance problems. 35. I have provided the foregoing information from the worker s file to establish the process that had taken place and to give clarity to the issue before me. It also serves, I find, to clearly 6

7 indicate that the Internal Review Specialist, in his April 29, 2013 decision, had concerns that the issues related to the worker s headaches, vertigo and dizziness had not been considered and incorporated in the PFI assessment, and the 10% rating awarded the worker. 36. I note that the PFI Assessor used the Commission s Impairment Rating Guide for Spinal Injury and concluded that the findings made the worker eligible for a PFI rating of 10%. I note that the 10% PFI rating was arrived at using the Commission s rating schedule for spinal injuries. This is confirmed by the Internal Review Specialist, who stated in the January 10, 2013 decision, that she had also reviewed the Permanent Functional Impairment Rating Schedule that lists the signs and symptoms for the cervical spine, and agreed with the assessing PFI Medical Consultant that the 10% rating was appropriate. 37. I have reviewed the WHSCC Impairment Rating Guide for Spinal Injury, F-2, particularly the 10-20% category, and find the following criteria for signs and symptoms for the cervical spine: Symptoms Persistent neck pain. Referred pain Avoidance of extremely heavy lifting. Signs Moderate severe loss of movement. Muscular spasm of neck. Motor and sensory neurological changes. It is important to note that this Rating Schedule used by the PFI Assessor does not indicate any criteria for measuring and rating headaches, vertigo and dizziness. I acknowledge that the Medical Consultant, on June 4, 2013, stated that she had considered and included these symptoms in her assessment and the 10% rating award. However, I find Mr. White s submission that the Commission has not rated these impairment as the rating schedule for spinal injury does not rate these impairments has merit. 38. I note that the Internal Review Specialist, in her decision dated November 29, 2013, stated that the Medical Consultant on June 4, 2013 had confirmed to the Case Manager that the headaches, vertigo and dizziness had been included in the September 13, 2012 PFI assessment. Relative to this, I find the following factors to be significant: (i) There is no indication in the September 13, 2012 PFI assessment that there was any analysis made, relative to the headaches, vertigo and dizziness, that would demonstrate how these symptoms had been assessed for their effects on the impairment rating. (ii) The Internal Review Specialist and the Case Manager noted that the PFI Assessor Medical Consultant had confirmed that the symptoms in question had been considered and incorporated in the 10% rating for the worker s impairment. I find that both the Case Manager, and the Internal Review Specialist, based their decisions solely on the June 4, 2013 memo from the PFI Assessor, which provides a conclusion, but does not provide the findings and analysis which was missing from the original opinion. Therefore, neither opinion provides any analysis addressing the worker s issue or 7

8 explaining what role these symptoms played in the identification of the PFI rating selected, 39. As I have previously stated, I have reviewed the Impairment Rating Guide for Spinal Injury, F-2 and I cannot find where it provides for an assessment of headaches, vertigo and dizziness that the Medical Consultant states she included in the 10% rating for the worker s impairment. However, there is also no engagement, either in the opinions, or the Commission s decision which relies on it, as to how these symptoms factored into the selection of the 10% rating versus some other rating in the appropriate range. The reasons are not detectable in the decision. 40. I note that Policy EN-01: Permanent Functional Impairment states, in part: Where the Permanent Functional Impairment Rating Schedule does not address a certain type of impairment, or where it is not precise enough to fully evaluate the extent of an impairment, the Commission may use the American Medical Association (A.M.A.) Guides as a reference. 41. Mr. White states in his submission that nowhere in the rating guide for spinal injury does it speak to the impairments under review. It is our submission that the Commission has erred in its rating of [the worker s] impairments. Mr. White goes on to add that he is of the opinion that, if the Commission s Rating Schedule is adequate to rate the worker s symptoms, then it would be reasonable to expect that it would use a guide that can measure and rate the impairments at issue. 42. In my review of the file, I find Mr. White s argument to have merit up to a certain point. The adequacy of the Policy or the rating table is not under review, but rather the decision of the Commission. The Act specifically permits the Commission to adopt a rating table, and it has done so. However, I again note that in cases where the injuries do not neatly fit within one category or another, Policy EN-01: Permanent Functional Impairment specifies that the medical judgment of the Assessor will have to be utilized in the process. However, this carries with it a requirement that the exercise of the medical judgment be explained in the context of the findings, and how the particular rating has been impacted by the various findings. What has been provided is a statement confirming the inclusion of the symptoms, but not an explanation, so and I agree with Mr. White that the evidence in the worker s file does not indicate that her impairment has received the analysis afforded under the Act and relevant policy. 43. I find the worker s claim has not been adjudicated in a manner that would lead her to reasonably conclude that her headaches, vertigo and dizziness was weighed and integrated in the September 13, 2012 PFI assessment that awarded her a 10% rating. 44. I acknowledge that the Act provides the Commission with the discretionary authority to determine the existence and degree of impairment. However, I also find that it is incumbent upon the Commission to adjudicate a claim that includes all information, and arrives at a decision that provides a rationale as to why the Commission arrived at the decision it did. In order to provide a decision which is in accordance with the Act, regulations, and Policy, the Commission must provide a decision which not only addresses the worker s objection 8

9 presented, but must also contain reasoning which records how all the relevant evidence was weighed and considered. A decision which does not do so lacks transparency, and does not satisfy the requirements of Section 60 of the Act. The Commission should have required an explanation as to how the headache and vertigo symptoms did, or did not, affect the level of impairment assigned. Therefore, I find that the matter must be remitted to the Commission in order for it to do so. Following that explanation, a new decision must be provided which includes a review of that explanation and how it complies with the Act, regulations, and Policies. Decision 45. I find the Commission has erred in not carrying out the proper adjudication and analysis of the worker s impairment. The decision does not record and reflect how the worker s headaches, vertigo and dizziness were considered in the PFI assessment dated September 13, 2012, and how they did or did not affect the 10% rating impairment awarded. The Commission is directed to carry out an analysis of the symptoms in question in accordance with Section 60, and provide a new decision which reflects how the symptoms affect the PFI rating selected. Referred to Commission Lloyd Piercey Review Commissioner August 7, 2014 Date 9

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