- Psychotraumatic disability
- Non-economic loss {NEL}
- Permanent impairment {NEL}
- Referral to Board (NEL assessment)
- Adjustment disorder
The worker was assessed with a 28% non-economic loss (NEL) award for a left eye permanent impairment (PI). He was later diagnosed with an Adjustment Disorder with Anxiety. The issue to be determined in this appeal was recognition of a PI and entitlement to a NEL determination for psychotraumatic disability.
The appeal was allowed. The Vice-Chair noted that OPM Document No. 15-04-02, "Psychotraumatic Disability," provides a "General Rule," which states in part: "Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition." The Vice-Chair specified their interpretation of "exceptional circumstances" to mean that the evidence, facts and circumstances of the particular case show that a permanent psychotraumatic impairment resulted from the injury. The Vice-Chair did not interpret this provision as altering the standard of proof in workers' compensation matters, which is the balance of probabilities, or the provisions of the WSIA and Board policy respecting entitlement for permanent impairment as a result of an injury. The Vice-Chair interpreted this provision in manner consistent with sections 2 and 46 of the WSIA, and with OPM Document No. 11-01-05, the "Merits and Justice" policy.The Vice-Chair found that the psychological damage suffered by the worker as a result of the injury to and loss of his eye, resulted in a permanent impairment, for which he was entitled to NEL benefits. The Vice-Chair found that the circumstances and nature of his injury, and the resulting loss of an eye, were exceptional. The circumstances of the injury were psychologically as well as physically shocking and traumatic. The evidence supported a finding of permanent psychological impairment, that is psychological damage which persisted beyond the date of MMR. The Vice-Chair was satisfied that the issue of the NEL quantum was most appropriately determined at the first instance by the Board conducting a NEL assessment. The Vice-Chair was also satisfied by the evidence that the worker had a permanent psychotraumatic impairment which would be rated at more than zero percent, and would meet the requirement for a permanent impairment provided in OPM Document No. 11-01-05.