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Workplace Safety and Insurance Appeals Tribunal: An Appeal that Recognized the Evolution of Cognitive Disability Symptoms

Written by Lian Yaffe, Occupational Therapist, OT Reg. (Ont.)

Individuals who have experienced traumatic brain injuries experience cognitive-behavioural symptoms that can affect them in their daily lives. Many individuals report impairments including fatigue, inability to concentrate, lack of attention, low frustration tolerance, memory difficulties, problem with organization and sequencing, impaired judgement and difficulty with emotional regulation.

It is important to collect proper data on client’s cognitive-behavioural abilities from observation and standardized testing.

In a recent appeal decision made by the WSIB board in 2020, Decision No. 657/20, 2020 ONWSIAT 1423 (CanLII), the arbitrator revised the benefits awarded to an individual after further information was provided, suggesting a change in the individual’s symptomology and ability to function.

The worker was employed as a sales director when he was involved in a serious ATV accident while on a work trip in April of 2005. He sustained a compression fracture in his spine requiring surgery and  a traumatic brain injury (TBI).

In August 2005, the worker returned to his pre-accident position as a sales director However his duties were limited and remained limited until 2008 when his contract was not renewed.

In 2010, he was assessed by a psychiatrist and was granted Non-Economic Loss (NEL) benefit of 20% for his cognitive impairment and psychological sequelae resulting from his TBI. He was considered 38% whole person impairment at the time due to the injury to his spine. Combined, the worker was considered to have a 50% whole person impairment.

He then went on to study for his real estate license. He started working as a real estate agent but was soon let go from his job, due to his inability to perform real estate transactions. When his license expired in 2012, he was unable to pass the required exams to recertify himself.

The worker continued to report cognitive and emotional difficulties and claimed inability to work.

In March of 2011, the worker was seen by another psychiatrist, who stated that the worker “will be limited from pursuing any suitable and realistic occupational options and/or retraining programs.”
However, in December 2011, the Case Manager (CM) on file referred the worker’s case to the Regulatory Service, to conduct video surveillance of the worker, as the CM was suspecting that the worker was misrepresenting his cognitive and psychological impairments.

This footage showed that the worker was driving short distances to stores and driving his kids to school, seemingly to suggest that the worker was not demonstrating cognitive difficulties.

In 2012, there was the final review regarding the work’s Loss of Earning Benefits, based on his ability to maintain employment as a sales manager and real estate agent.

Although it was noted that the worker was unable to work at an executive level, it felt there was not enough information regarding his ability to perform the job.

In 2013, the worker underwent a neuropsychological exam, where the doctor reports the following diagnoses: Cognitive Disorder Not Otherwise Specified (mild to moderate neurocognitive impairment); Major Depressive Disorder; Generalized Anxiety Disorder; and Pain Disorder associated with both psychological factors and a general medical condition (chronic).

In 2016, his neuropsychologist notes “He has significant difficulties in performing most instrumental activities of daily living as well as some basic activities of daily living due to problems with severe depression and severe traumatic brain injury. He presents with high levels of depression and anxiety, which results in him isolating himself from any sort of social functioning. His severe traumatic brain injury has significantly impacted his ability with respect to concentration, pace and persistence as most tasks are left incomplete and are not performed unless the assistance of other individuals primarily family members.”

After further corroborating assessments from other doctors, along with testimony from his wife, his case was reviewed by the board.

It was determined that the worker has experienced a significant deterioration in his psychological condition and as such is entitled to a reassessment in his Non-Economic Loss award for psycho-traumatic disability. He was compensated for his losses.

Why is this case important?

This case provides an example of the challenges that many individuals face after a brain injury. Cognitive difficulties are disabilities that are not visible the way a broken leg may be.

Common physical, cognitive, and emotional impairments following an accident, such as chronic fatigue, chronic pain, or cognitive impairments, affect the client’s ability to participate in their lives in a meaningful way.

As we can see from this case, an individual’s symptoms and experiences as a result of a brain injury may be invisible to some. Basic self care and basic ADLs, such as driving children to school for 10 minutes, should not be perceived as proper reflection on client’s ability to work.

Continuous functional observation and proper data collection is necessary to identify the level of limitation the client is experiencing in relation to work task.

At GLA Rehab, we place a strong importance on quality reporting and in-depth assessments and analysis of performance, so that we responsibly and accurately identify how one’s impairments are affecting them.

Our therapy team makes a strong effort to ensure that assessments of clients are holistic and comprehensive of the client’s abilities in a variety of demands, settings, and difficulties, so that we can accurately gain the information we need to best support our clients.