Can a WSIB NEL Rating for Psychological Injury Be Increased in Ontario?

Can a Psychological NEL Rating Be Increased on Appeal?

It can be, but only when the evidence fits a higher class, and in this case it did not. In Decision No. 298/26, 2026 ONWSIAT 934 (CanLII), the Workplace Safety and Insurance Appeals Tribunal (WSIAT) kept a worker’s 15% non-economic loss (NEL) rating for psychotraumatic disability and denied the rest of his appeal.

The worker, a welder, rolled his left ankle at work in October 2016 and later had three ankle surgeries. The WSIB accepted Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder with predominant pain, and in October 2021 awarded a 3% NEL for the ankle and 15% for the psychological condition. The worker argued the psychological rating belonged in the low to mid-range of Class 3, Moderate impairment (20% to 45%).

What Separates Class 2 From Class 3 Psychological Impairment?

WSIB Policy 18-05-11 rates psychological impairment in five classes, from Class 1 (no impairment, 0%) to Class 5 (extreme impairment, 95%). Class 2, Mild impairment (5% to 15%), describes a worker who remains able to carry out most activities of daily living as well as before. Class 3, Moderate impairment, describes impairment such that daily activities need some supervision or direction.

The Tribunal found the worker was at the high end of Class 2 when he reached maximum medical recovery in September 2021:

• The treating psychologist’s discharge report found he could carry out most daily functions without interference from his psychological condition, and recommended only breaks as needed and self-pacing.
• He did not need supervision of any kind and was not homebound because of the psychological condition, which the Tribunal called leading indicators of Class 3.
• He drove, grocery shopped, helped around the home, and took his disabled mother shopping and to her appointments.
• Limits caused by the ankle itself were already reflected in the ankle NEL rating and were not counted again in the psychological rating.

The worker testified that he no longer went out with friends because he had no money, his friends had moved on with their lives, and he did not want to answer questions about what he was doing. The Tribunal found that this reduced social activity placed him at the top of Class 2, rather than the 10% given in an earlier decision where the worker still socialized to some degree. It did not lift him into Class 3.

Was the Suitable Occupation Unsuitable Because He Could Not Find Work?

No. The worker’s representative focused on whether the job was available to this particular worker, arguing that his injuries and the pandemic kept him from being hired. The Tribunal treated suitability and availability separately.

On availability, it found Supply Chain Logistics Clerk generally available within the worker’s commuting distance, relying on a fair Job Bank outlook and 25 suitable postings found in September 2018. Pandemic-era hiring problems in 2020 were temporary and did not reflect the labour market when job-search help ended in December 2021.

On suitability, it noted that the worker agreed with the occupation, earned a college diploma in Supply Chain Logistics through WSIB-funded retraining, and worked as a logistics clerk during a placement. He testified that he was told he would be hired but the job disappeared because of the pandemic, and that he would have stayed. The job’s limited lifting and largely sedentary demands fit his ankle restrictions, and his need for breaks could be accommodated.

The Tribunal also noted concerns recorded by the return-to-work specialist, including missed appointments, incomplete tasks, and limited job searching, and the specialist’s view that the worker was employable in various clerical roles but that finding work depended on searching.

Does Failing to Find Work Mean a Worker Is Unemployable?

Not on this record. The Tribunal asked whether the worker could earn any income in suitable employment, looking at factors such as his restrictions, skills, age, language, and other medical conditions. He was 35, spoke English as his first language, had a high school diploma and a college credential, and had no other conditions besides his accepted injuries. Because the suitable occupation fit him, the Tribunal found his loss of earnings could be reduced through suitable work and refused full LOE benefits.

Why Did the Tribunal Reject a 20-Hour Work Week?

The representative argued that part-time hours would help the worker manage his pain through medication, icing, and elevation, but pointed to no medical evidence limiting him to 20 hours. The orthopaedic surgeon and the other practitioners at the Lower Extremity Specialty Program all found he could work 40 hours a week. They recommended starting at four hours a day only because of how long he had been off work.

In January 2023 the surgeon found the ankle clinically stable and only mildly swollen, and recommended compression stockings for swelling. The report did not say pain or swelling would interfere with work. The Tribunal kept the LOE calculation at 40 hours a week, at $16.00 an hour from December 11, 2021 and $20.00 an hour from the October 11, 2022 final review. Because the occupation was suitable, it also rejected the request to use minimum wage.

Questions and Records to Discuss with a Lawyer

• What do your psychological reports say about your daily functioning when you reached maximum medical recovery?
• Has any treating professional said you need supervision or direction, or restrictions beyond breaks and self-pacing?
• Do you have records of your job search, retraining, and any placements in your suitable occupation?
• Is there a medical opinion that specifically limits the hours you can work because of your compensable condition?
• Are the wages used for your suitable occupation accurate for your local labour market?

If you have questions about a WSIB decision, a NEL rating, or loss-of-earnings benefits, our Ontario employment lawyers can help. Reach out through our contact page to speak with someone about your situation.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.