A Memo WCAT B.C., which includes Ontario/Alberta Chronic Pain information. What it says: in full:

WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
June 24, 2004
Memo to: Jill Callan, Chair
Workers’ Compensation Appeal Tribunal
Memo from: Kathryn Wellington, Vice Chair
Workers’ Compensation Appeal Tribunal
RE: Section 251(2) Referral
Date of Decision: November 26, 2003
This memo concerns Section 251 of the Workers Compensation Act (Act) and
policy #12.40 of the WCAT Manual of Rules, Practices and Procedures (MRPP).
Section 251(1) of the Act says that the appeal tribunal may refuse to apply an
applicable policy of the board of directors if the policy is so patently unreasonable
that it is not capable of being supported by the Act and its regulations. MRPP
policy #12.40 instructs that if a WCAT panel considers that an applicable policy
of the board of directors should not be applied on that basis, the issue must be
referred to the chair and the appeal proceedings must be suspended until a
determination is made as to whether the policy should be applied. In this case,
the policy I am referring for your consideration is item #39.01 (amended
January 1, 2003 in volume I) and later called item #39.02 in volume II of the
Rehabilitation Services and Claims Manual (RSCM II), which concerns awards
for chronic pain.
By way of background, this appeal concerns the worker’s entitlement to a
pension under her 1995 low back claim. The worker disputes a November 26,
2003 decision of a review officer of the Workers Compensation Review Division
(Review Division) which upheld the June 12, 2003 decision of an officer of the
Workers Compensation Board (Board). In the June 12, 2003 decision, a
disability awards officer (DAO) advised the worker that her permanent functional
impairment was equal to 2.2% of a totally disabled person. On reviewing the
pension decision the review officer confirmed the award for an aggravation of the
worker’s pre-existing osteoarthritis of the lumbar spine; declined to provide a
further award to recognise the worker’s pain; declined to award interest on the
award and declined to reimburse the worker for legal costs.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
The worker disagreed with this decision and initiated an appeal to the Workers’
Compensation Appeal Tribunal (WCAT).
This memo concerns the part of the decision that relates to the worker’s
entitlement to an additional award for chronic pain.
In my assertion, policy item #39.01 in volume I and #39.02 in volume II of the
RSCM are not supported by section 23(1) of the Act and therefore are not lawful
within the meaning of section 251 of the Act. This argument is supported by the
following propositions:
• To the extent that the policy fails to take into account the variable effects that
chronic pain may have on the earning capacity of individual workers, the
policy is inconsistent with the purpose of section 23(1).
• The policy fetters the discretion of the decision-maker to estimate the
impairment of earning capacity of workers suffering from chronic pain and
then to determine an appropriate permanent disability award under section
23(1).
The following facts are relevant to this worker’s pain condition:
• She has not worked since 1995 due to her pain complaints.
• She experiences severe low back (and bilateral shoulder) pain every day,
and requires daily anti-inflammatory medication.
• She has significantly restricted her daily routine in order to cope with her pain
complaints.
• She has restricted tolerances for many physical activities.
• She sees herself as 100% disabled and has taken on a sick role (i.e. she
applied for and received provincial disability benefits and received level 2
benefits from 1998 to 2003).
• Her attending physician indicates that she cannot work full time and is limited
to sedentary employment.
• At the pension assessment the worker was described as more restricted in
some movements than expected.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
Policy item #39.01 as it existed prior to January 1, 2003, did not restrict the
percentage that could be awarded for subjective complaints. In the past when
panels considering appeals have given additional awards for pain, most awards
have approximated 2.5%. Where subjective complaint awards have exceeded
2.5%, as they have occasionally, the panels reasoned that the worker’s pain was
worse than the level of pain described in Decision No. 318. Panels primarily
looked at the impact of pain on a worker’s ability to do certain physical activities.
They were extremely conservative in their awards and it is not clear that the
percentages awarded were based on actuarial research about the effect of
chronic pain on long term earnings.
When they increased subjective awards, appeal panels cited such reasons as:
• Inability of the worker to stand for eight hours a day
• Inability to use tools
• Loss of strength
• Difficulty lifting
• Inability to ambulate, or difficulty with balance
• Instability
• Difficulty with concentration and memory or cognitive function
All of these factors were viewed as having resulted from the worker’s pain.
Some other factors, in my view, increase the likelihood of impaired earning
capacity when these factors are present either alone or in concert with the
aforementioned ones.
In my experience, evidence of certain factors makes the possibility of a future
disruption of earnings due to pain effects much more likely. These factors
include:
• Pain that limits use of a major weight-bearing joint
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
• Pain of a nature and degree that affects concentration, memory, cognition
or mood
• Pain that is intractable and is not relieved by any pain control modality
• Pain that has adversely affected interpersonal relationships
• Pain that regularly impairs sleep or results in significant weight fluctuations
• Reliance on prescription medications of a type known to result in
habituation or known to have significant adverse side effects, such as liver
or kidney damage if used over the long term.
• Increased alcohol or street drug consumption to augment or replace
analgesics.
This list is not exhaustive, but the presence of these factors increases the
likelihood that the worker will lose time from work; will be unable to compete on
an equal footing with other able-bodied workers for promotions; or will have to cut
short his career due to the effects of his pain. I consider that where I give an
award for pain, I am obliged to base my decision on factors such as I have
enumerated. Section 23(1) of the Act requires me to estimate the impairment of
earning capacity from the nature and degree of the injury. The arbitrary 2.5%
award dictated by the chronic pain policy prevents me from considering the
evidence in order to arrive at a decision that has regard for the merits and justice
of each case. This means that I am not able to provide reasons for my decision
beyond stating that the policy says I must award 2.5 or nothing.
I note that the Board’s chronic pain policy results in workers with permanent
chronic pain being treated very differently than workers with psychological
conditions even when the two conditions result in essentially similar symptoms. I
have reviewed the Board’s Schedule for Psychological Disability and also the
Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IVTR)
concerning pain disorders associated with psychological factors and with
pain disorders associated with a general medical condition. The Board does not
give psychological awards for pain, but where psychological impairments
produce similar problems to those seen with chronic pain, the Board
compensates at a level that exceeds most awards for physical impairments and
significantly exceeds the 2.5% stipulated by the chronic pain policy.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
The Board recognises at policy item #115 of the Schedule that emotional
(mental) and behavioural disturbances which relate to impairment of activities of
daily living, social functioning, concentration and adaptation are compensable.
Mild impairments, which are compatible with some but not all useful functioning,
warrant awards ranging from 0.0 to 25%.
The effect of the policy item #39.01 as it existed as of January 2003 and
subsequently #39.02 is that no longer will I be able to take notice of the factors
which, in my view are most likely to have a profound impact on the worker’s
long-term earning capacity.
Changes to the permanent disability award scheme under Bill 49 and
recommendations by the Winter Report prompted a review of pain policies by the
Board’s Policy and Regulation Development Bureau (the “Policy Bureau”). The
Policy Bureau developed a discussion paper dated October 16, 2002 regarding
compensation for chronic pain in cases of permanent disability.
The Policy Bureau’s discussion paper outlined five options:
1. To maintain the status quo:
Chronic pain amenable to treatment would continue to be regarded as a
temporary disability. Subjective complaints of pain would be considered in
determining permanent disability awards.
2. To adopt the Winter recommendations:
A section 23(1) award would be provided to a worker who suffers chronic pain
arising from a compensable injury or illness, where the evidence indicates
that the chronic pain is likely to adversely impact the worker’s earning
capacity. The Board would create a schedule to determine the impact on
earning capacity as a result of chronic pain arising from a compensable injury.
The Schedule would contain 3-4 levels of permanent impairment with a
statutory maximum of 20% impairment. The levels may be based on the
classes of impairment due to pain – mild, moderate, moderately severe, and
severe – proposed by the AMA Guides (5th ed.). This percentage of
impairment would cover the chronic pain as well as any other related
condition arising from the chronic pain. Workers would not be entitled to be
assessed for a section 23(3) award arising from chronic pain or any related
condition.
3. To limit section 23(1) consideration for non-specific chronic pain only.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
4. To limit section 23(1) consideration for specific chronic pain only.
5. To adopt the Nova Scotia model.
Compensation entitlement would be limited to the duration of pain treatment.
Pain-specific healthcare services would be limited to the treatment phase.
The review process culminated in the revision of what was formerly item #39.01
(“Subjective Complaints”). Resolution #2002/11/19-04 of the Panel of
Administrators refers to the need to update Board policy to reflect current
scientific and clinical information regarding chronic pain and to address concerns
raised by stakeholders concerning the lack of clarity with respect to section 23(1)
awards for chronic pain.
The Board did not adopt Winter’s recommendation of a scheduled range of
awards for chronic pain. Moreover, Winter’s suggested statutory maximum of
20% is significantly higher than the current policy cap of 2.5%. The Policy
Bureau’s discussion paper provides some indication as to why the policy
developed the way it did. In discussing the implications of the Winter
recommendations (Option 2), the paper refers to the fact that it would be
impossible for clinicians to objectively measure and find evidence of pain that
would correspond to the levels of pain set out in the AMA Guides, and that the
methodology proposed by the AMA guides has not been used or tested on a
widespread basis. The Winter Report acknowledged the difficulties associated
with the AMA Guides, but maintained that the Board could not avoid the task of
quantifying the estimated percentage of earning capacity for each level of
impairment (see p. 227).
I take the position that the Board’s chronic pain policy is not capable of being
supported by the language of the Act.
Section 23(1) of the Act provides compensation for permanent partial disabilities
or disfigurements. The Board is obliged to “estimate the impairment of earning
capacity from the nature and degree of the injury.”
In my view section 23(1)(2) requires the Board to estimate the impairment of
earning capacity resulting from the injury in reference to the specific injured
worker. If so, then in cases where 2.5% does not correspond to the disability of
the particular worker due to chronic pain, the fixed award would appear to be
both deficient in achieving this purpose and inconsistent with the intent of the
provision.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
Chronic pain affects the earning capacity of workers in very different ways.
Variable factors may include the severity of the pain, the capacity of the worker to
cope with the pain and the nature of the pre-injury occupation. The chronic pain
policy provides what may be termed a “gateway assessment” to determine
eligibility for an award under section 23(1), but there is no secondary assessment
to take into account the effect of the chronic pain on the individual worker’s
earning capacity. Rather, the policy provides a fixed percentage to be awarded.
Unlike the PDES which purports to provide percentages as a “guideline or
starting point” for determining section 23(1) awards, the chronic pain policy sets
out a fixed amount that has been pre-determined by the Board to fairly estimate
the worker’s impairment of earning capacity due to chronic pain. The policy starts
out by stating that it is providing “guidelines for the assessment of section 23(1)
awards”, however the subsequent language of the policy contains virtually no
modifying language from which to infer flexibility in terms of application of the
policy.
While this may have considerable administrative appeal, it is not clear that 2.5%
is an appropriate value. By way of comparison, the Winter recommendation was
to create a range of percentages corresponding with the severity of the pain with
an overall statutory maximum of 20%. On a purely numeric basis, awards for
chronic pain under the policy fall significantly short of the recommended
maximum. As an example, an award of 2.5% is equal to the percentage
awarded for the loss of a little finger. This figure must compensate workers with
the most severe chronic pain complaints under the chronic pain policy.
As noted above, the Policy Bureau’s discussion paper refers to the “impossibility”
of providing objective medical evidence to correspond with the levels of
impairment proposed by the AMA Guides. However, two other jurisdictions -
Ontario and Alberta – have managed to devise compensation schemes based on
levels of impairment.
In Ontario, chronic pain is treated as a mental impairment and awards are
assessed subject to the following rating schedule: minor impairment of total
person 10%; moderate impairment of total person 15 – 25%; major impairment of
total person 30 – 50%; and, severe impairment of total person 60 – 80%[2].
According to a document by the Nova Scotia Workers’ Compensation Board
entitled, Responding to the Supreme Court of Canada Decision on Chronic Pain
– WCB Recommendations to Government (March 12, 2004) at 31, Ontario
[2] WCB Briefing Paper, Chronic Pain (September 24, 2001) at 11.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
estimates that the average impairment award for chronic pain is in the range of
10 – 25%.[3]
In Alberta, the Board considers chronic pain cases under policy #03-01/II/7.[4]
The scale used is as follows: no impairment 0%; minimal impairment 1-10%; mild
impairment 11-30%; moderate impairment 31-50%; and, severe impairment 51-
75%.[5]
To the extent that the chronic pain policy fails to take into account the variable
effects that chronic pain may have on individual workers, the policy may be
considered inconsistent with the purpose of the section. The policy, in failing to
take into account the impairment of earning capacity of the specific individual
worker, is inconsistent with the purpose of section 23(1). That inconsistency
undermines the statutory support for the policy.
The duty of the decision-maker under section 23(1) is to estimate the impairment
of earning capacity from the nature and degree of the injury and then to
compensate the worker accordingly. The estimation involves an element of
discretion on the part of the decision-maker.
The chronic pain policy sets a fixed rate of compensation for every worker that
meets the criteria for a permanent partial disability award for chronic pain. While
there is consideration of the individual worker for the purposes of eligibility, once
the primary entitlement issue is resolved, the actual award is dictated by the
2.5%. There does not appear to be any room in the policy for the decision-maker
to deviate from the 2.5%, even in exceptional or unusual cases. This is the case
notwithstanding that the legislature refrained from including a statutory maximum
for chronic pain compensation.
As noted above, the introduction to the PDES expressly states that it does not
provide a fixed result that can be mechanically applied:
The Schedule does not necessarily determine the final amount of
the section 23(1) award. The Board is free to take other factors into
account. Thus, the Schedule provides a guideline or starting point
for the measurement rather than providing a fixed result.
[3] Available online at: http://www.wcb.ns.ca/>.
[4] Available online at: .
[5]Nova Scotia Workers’ Compensation Board, Responding to the Supreme Court of Canada
Decision on Chronic Pain – WCB Recommendations to Government (March 12, 2004) at 27.
WCAT Workers’ Compensation
Appeal Tribunal
MEMORANDUM
Whether this is, in fact, the case in practice, this type of language would appear
to leave room for the exercise of discretion as necessitated by individual
circumstances that may arise on the merits of each case. Moreover, it is a signal
that the policy makers were live to the issue of fettering and attempted to design
the schedule so as to foreclose any challenge on that basis.
In contrast, apart from the opening line referring to “guidelines”, it is difficult to
interpret the language of the chronic pain policy, and in particular the final
paragraph, as anything other than directing a fixed and inflexible result. The
inflexibility of the policy is buttressed by section 250(2) which makes Board policy
binding on the appeal tribunal. This effectively insulates the quantum of the
award for chronic pain from appeal.
To summarize, I conclude that the Board’s chronic pain policy fetters the
discretion of the decision-maker to compensate for chronic pain under section
23(1). When considering whether the policy is “patently unreasonable”, this
argument may be considered in combination with the argument that the policy is
inconsistent with the purpose of section 23(1).
For the above reasons, I am referring this matter to your attention at this time,
and I ask that the worker’s appeal be suspended.
Kathryn Wellington
Vice Chair

And this:

The following link to a memorandum that was sent from a WCAT member to another WCAT member in B.C. raises some very interesting and potentially damaging questions as to the issue of impairments versus a disability. Impairment ratings have absolutely no direct correlation to a disability. Chronic pain affects individuals as an impairment and as a disability. Therefore chronic pain policies must apply to claimants when chronic pain affects their ability to perform simple basic activities of daily living which is expressed as a percentage. Chronic pain as it applies to loss of earnings is defined as the difficulty an individual has in performing work which defines a disability. The two cannot be intertwined or a loss of earnings cannot be directly determined from an impairment percentage. Chronic pain policy in Alberta only comes into play when there is a loss of earnings which defines a disability. WCB does not have a chronic pain policy that is based on an impairment. In other words if there is no loss of earnings due to an impairment, a claimant receives no benefits if they have difficulty in performing simple basic activities of daily living excluding work. I have filed a human rights complaint based on this and human rights have upheld my complaint which has resulted in the next stage which is conciliation. At this time I am waiting for WCB’s statement of defense. If WCB happens to lose this case, the implications will no doubt affect all jurisdictions across Canada as most if not all jurisdictions use either Dr. Bell’s initial impairment guides that go back to 1960, the AMA Guides or a combination of both. Grandfathering of benefits that go back to 1960 would no doubt result in billions of dollars in restitution for all disabled workers throughout Canada. The link I am referring to is http://www.wcat.bc.ca/research/lawful/pain.pdf

Gerry Miller

If you are not on Gerry’s e-mail list, just write him and ask him politely to place you on his list.

gkmiller@telusplanet.net

Sorry forgot to mention. When wcbcanada.com is back up on new servor, you can go to search and type in Gerry Miller. There are many documents online there that has opinions on impairment/disability ratings and so on.

Cheers.

To add:

I am sending this link simply because many disabled workers when receiving a PCI rating, the PCI rating provided by doctors employed by WCB’s do not include many of the PCI ratings that must be included in a whole person impairment. I have always maintained that disabled workers who have been provided a NELP are being cheated by WCB doctors. This is one of the links amongst numerous others that provide the same information. Generally speaking most if not all WCB hired guns never go further in the evaluation of a whole person impairment to include all ratable impairments for a compensable medical condition. The human rights complaint that I have filed against WCB is based on this and has been to this point upheld by the human rights investigator. The human rights complaint could and may set a precedence that could conceivably be used in all provinces who provide NELP’s based on whole person impairment ratings. I would advise all recipients of this e-mail to do their own research into impairment ratings and the principle and application of impairment ratings. The link is; http://www.environmentaldiseases.com/article-workers-compensation-impairment-rating-guide.html

Gerry Miller

Article very interesting, I will necessarily add it in the selected works and I will visit this site