In the first article to this series we told you that, on April 25, 2018, Paul Petrie provided his report – Restoring the Balance: A Worker- Centred Approach to Workers’ Compensation Policy – to the Board of Directors of the Workers’ Compensation Board. We also explained how Mr. Petrie adopted a “worker-centred approach” to his review of, and recommended changes to, the Rehabilitation Services and Claims Manual, Volume II (the “Claims Manual”). In this article, we are going to take a closer look at one of Mr. Petrie’s 41 recommendations – his recommendation on chronic pain.
It is first important to understand the background to chronic pain awards. Under the Claims Manual as presently worded, chronic pain is defined as pain that persists six months after an injury and beyond the usual recovery time of a comparable injury. Board policy recognizes that although chronic pain is a symptom of an injury rather than a diagnosis, it can be accepted as a separate compensable consequence of a work-related injury or occupational disease. In addition, chronic pain can be accepted while the worker is temporarily disabled (resulting in acceptance of chronic pain as a temporary condition), or as a permanent condition for which a pension award will be granted.
Prior to Alan Winter’s 2002 Core Review of the Workers Compensation Act, and the resulting changes to the Act, the Board had two methods for calculating permanent chronic pain claims available to it. The first method was the “loss of function” method, which estimated the worker’s impairment of earning capacity based on the “nature and degree of the injury”. The intent of this method was to apply the same percentage rate of permanent impairment to all workers who suffer similar work-related disability. The second method – the “loss of earnings” method – provided the Board with the discretion to calculate the worker’s permanent pension award based upon the worker’s particular loss of earnings. This method was utilized where the Board considered it more equitable than the “loss of function” method. In practice, the Board applied whichever method resulted in the payment of the higher permanent pension award to the worker. Given chronic pain can result in a total inability to work, the “loss of earnings” method could result in 100% permanent disability awards being granted for chronic pain.
In his 2002 Core Review, Mr. Winter recommended changes to the calculation of chronic pain awards and proposed four categories for assessing permanent chronic pain:
- Mild 0-5%
- Moderate 10%
- Moderately Severe 15%
- Severe 20%
The Board of Directors of the Workers Compensation Board did not implement this recommendation, and instead created a policy providing that where a worker’s chronic pain is found to be a permanent condition, they will receive a single flat rate pension award of 2.5% of total disability, regardless of the severity of the chronic pain or its impact on employability.
In his Report, Mr. Petrie explained that concerns had been expressed to him around the “one size fits all” rating of 2.5% for all chronic pain conditions. Mr. Petrie also identified the single flat rate of 2.5% as being a low permanent functional impairment award (“PFI”). Mr. Petrie noted that a low PFI generally indicates the permanent disability has a low impact on employability and yet, 2.5% may not reflect severe cases where chronic pain can have a significant impact on employability.
Addressing this “inequity”, Mr. Petrie commented that Mr. Winter’s recommended categories have some merit and could be useful in distinguishing varying levels of disability from a chronic pain condition. However, Mr. Petrie also noted the chronic pain policies in the Claims Manual are currently under review by the Board’s Policy, Regulation and Research Division (the “PRRD”), and therefore because the implementation of Mr. Winter’s recommendations would take time, it was not practicable to implement them while the PRRD carries out its chronic pain review.
In the end, Mr. Petrie recommended that, on an interim basis pending the PRRD’s review, the Board of Directors consider amending the relevant policy to allow for a loss of earnings assessment in more serious chronic pain cases where the chronic pain condition meets the “so exceptional test” in Sections 23(3.1) and (3.2) of the Act – in that the combined effect of the worker’s occupation at the time of the injury and the worker’s disability resulting from the injury is so exceptional that the single flat rate does not appropriately compensate the worker for the injury. This recommendation has the potential to result in 100% permanent disability awards being granted for chronic pain similar to awards granted prior to Mr. Winter’s 2002 Core Review. The employer community should be concerned about this recommendation and its potential impact on the costs to employers and the workers compensation system as a whole.
The Report can be viewed here.
For questions relating to this article, please contact Alan D. Winter