WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1348/08

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1348/08 BEFORE: B.L. Cook: Vice-Chair HEARING: June 10, 2008 at Toronto DATE OF DECISION: June 25, 2008 NEUTRAL CITATION: 2008 ONWSIAT 1781 DECISION UNDER APPEAL: Appeals Resolution Officer N. Berman, June 13, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Angelo Consiglio, Para-Legal Consultant Sheldon Caplan, Lawyer Hernando Coronell, Spanish-English Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1348/08 REASONS (i) Introduction [1] The worker suffered a work-related accident on November 11, 2002 when she tripped over a cart. The Board determined that the worker was capable of modified work by January The worker felt totally disabled and unable to work. The Board determined that the worker was not entitled to ongoing Loss of Earnings (LOE) benefits because she had refused suitable work that was available with no loss of earnings. In February 2003, the worker was seen by a psychiatrist, who diagnosed Adjustment Disorder. The Board determined that this condition was not related to the work-related injury and also found that the worker was not entitled to benefits under the chronic pain disability policy. The worker, now 65 years of age, has never returned to work. (ii) Issues [2] In this appeal, the worker seeks entitlement to benefits under the Board s chronic pain disability policy and entitlement to LOE benefits subsequent to January (iii) Background [3] The employer manufactures foam pieces for the auto industry. The worker was employed as a machine operator and worked on the machine that cut pieces of foam. After the foam was cut by the machine, the operator placed them in boxes. [4] On November 11, 2002, the worker was doing her job when she tripped on a cart that she did not know was behind her. The cart was about two and a half feet high and had pieces of foam piled on it. [5] The worker testified that as she turned, her left leg got caught under the cart and she fell, landing on the ground on her left side. She said that when she tried to stand up she felt very dizzy and started to fall again. She grabbed the cart to try to steady herself. The cart was on wheels and it moved when she grabbed it. The cart then hit something and the worker was jolted. The worker thus described a whiplash type of injury. She testified that she did not hit her head. However, her head was shaken and she believes that she could have broken her neck. [6] The worker testified that she had vision problems and a severe headache immediately after the accident. She was unable to open her locker and went to the cafeteria to get assistance. Some friends were available to take her to her doctor. The Plant Manager helped her walk to the car but she was unable to lift her legs to get into the car and required assistance. [7] The worker s family doctor was Dr. Tsvi Gallant. He saw the worker on the day of the accident and filed a Physician s First Report (Form 8). According to the form, the worker was complaining primarily of low back pain, with a history of injuring her left leg and low back. [8] The worker testified that when she saw Dr. Gallant she was suffering from severe headache and total body pain. She testified that she told him about these symptoms and she does not understand why they were not recorded in the Form 8.

3 Page: 2 Decision No. 1348/08 [9] The worker was referred to Dr. Balsky, a chiropractor. In a Chiropractor s First Report Form, dated November 14, 2002, Dr. Balsky indicated that the diagnosis was lumbosacral sprain/strain. He noted that x-rays had not shown any abnormality and that the neurological examination was normal. [10] A Worker s Progress Report dated November 26, 2002 indicated that the worker was complaining of pain in my back, now shoulder. The worker indicated that she probably had help completing the form but she could not recall from whom. She confirmed that she did sign the form. [11] A Progress Report from Dr. Gallant dated November 26, 2002 indicated that the worker had severe low back pain together with abdominal pain and vaginal bleeding. The worker testified that she believed that this latter complaint was also related to the accident and that she might have injured her groin area in the accident even though this was not noted at the time. [12] On November 29, 2002, the Claims Adjudicator had discussions with the employer and the worker. The employer indicated that it had modified work available for the worker and that any restrictions would be accommodated. The worker indicated that she felt too disabled to return to any kind of work. The Claims Adjudicator advised the worker that according to the medical information, the worker was partially impaired and capable of modified work. The worker told the Claims Adjudicator that she was too disabled even to get to work by bus. The Claims Adjudicator pointed out that this was not reflected in the medical information that the Board had received. The Claims Adjudicator suggested that a WSIB Return to Work Mediator could meet with the parties to discuss a return to work. The worker reluctantly agreed to a meeting. [13] A Mediator eventually convened a meeting on January 15, 2003, with the worker, her union representative, and the employer. A WSIB translator was present to assist the worker. According to the Mediator s memo, the employer offered to accommodate any medical restrictions or precautions. The worker however felt that she was not capable of any type of work. [14] The Claims Adjudicator spoke with the worker s husband on January 27, 2003 and he confirmed that the worker felt totally impaired and unable to work. The Claims Adjudicator determined that the worker was not entitled to any further LOE benefits. [15] On January 29, 2003, Dr. Gallant provided a note which advised that the worker was unable to return to work because of severe anxiety and depression which he was treating with medication. [16] On February 6, 2003, Dr. Bishop, a Board Medical Advisor, spoke to Dr. Gallant. According to Dr. Bishop s memo: Dr. Gallant indicated at once that he agreed with me, and that the worker was partially impaired with limitations. However she is having a lot of problems that he must follow up on. She has become more withdrawn and anxious, and he feels that she may have developed a post-traumatic stress syndrome. He readily agreed that it was soon after the accident for this to develop, but that is how the worker presents. He has referred her to a

4 Page: 3 Decision No. 1348/08 psychiatrist as well as a neurologist. She has symptoms such as weakness and difficulty walking that he feels may be related to post-traumatic stress syndrome. [17] Dr. Bishop indicated that in her opinion, the worker was partially impaired and that there was no basis to relate any psychiatric impairment to the apparently minor soft tissue injury under this claim. [18] Dr. Gallant referred the worker to Dr. Ileana Kirstine. Dr. Kirstine is a general practitioner with an interest in psychology. In a report dated February 10, 2003, Dr. Kirstine reported: [The worker] suffered an accident at work when she fell inside a skid. She was unable to work. She complains of severe pain in the neck, arms and back. She is unable to hold a book. Her memory and concentration are poor. She feels like crying all the time. There are thoughts of hopelessness and helplessness. Her financial situation is very poor. She has episodes of anxiety and she has stopped going out for fear of crowds or too much noise. Her sleep is very fractionated but her appetite is fine. The diagnosis is of an Adjustment Disorder with associated depression and anxiety. [19] Dr. Kirstine s report was reviewed by Dr. Bishop. [20] Dr. Bishop reiterated that since the accident was not psychotraumatic in nature and resulted in only minor physical injury, it was not likely that the worker s psychological problems resulted from the accident. [21] On April 25, 2003, the worker was assessed at a Regional Evaluation Centre (REC). The worker s complaints were recorded: [The worker] reports constant low back pain, radiating into both buttocks and posterior thighs, as well as up the entirety of her spine and over the top of her head. Her pain is aggravated with prolonged standing and sitting, and eased with medications and lying down. She has no associated lower extremity symptoms. She has no bowel or bladder dysfunction but does report sleep disturbance due to pain. [The worker] did report rightsided neck and shoulder pain as well. [22] On physical examination, the worker had a reduced range of motion in all directions primarily because of posterior and right-sided cervical discomfort. There were no neurological findings. The assessors reported: There were nonorganic signs noted throughout the examination, which included tenderness to superficial light touch, pain with spinal rotation and pain behaviours with physical examination. [23] Nonorganic signs could be due to psychological factors or they could be evidence of exaggeration. [24] The REC assessors concluded that the worker had no medical restrictions in regard to her physical activity, but they anticipated that the worker would have continuing low back discomfort for a further three months. A referral for active physiotherapy was recommended.

5 Page: 4 Decision No. 1348/08 [25] The worker was referred for physiotherapy, and was first assessed on May 1, The diagnosis was low back strain with ++ emotional overlay. [26] The therapist indicated that the worker was not able to work while attending therapy and that she could return to very modified duties after one month of treatment. The therapist added that the worker was very pain focussed and that a protracted recovery could be anticipated. [27] The worker s claim was reviewed by Dr. Bishop again on June Dr. Bishop noted that the worker s pain appeared to involve her whole body whereas the original injury involved only the worker s low back. She felt that the worker s complaints of widespread pain were not consistent with the original injury and that the worker did not meet the medical criteria for entitlement under the Board s chronic pain disability policy. [28] On June 26, 2003, the worker was assessed by Dr. David Morgenthau, a neurologist. He understood from the worker that she had suffered a head injury at the time of the accident and that she had experienced generalized pain and fatigue ever since. She also complained of dizziness and a feeling as though she is drunk when she walks. On examination, there were no remarkable findings. [29] On August 28, 2003, Dr. Kirstine reported: She refers constant chronic head, back and neck pain. Her sleep continues to be fractionated. She continues to have poor memory and poor concentration. She has difficulties with activities of daily living, like washing her hair, showering, getting in and out of the tub or putting on her socks or shoes. Cannot do any groceries, she cannot carry her bags. There are some difficulties with her husband. He seems to have grown tired of her. She stays at home most of the time, afraid of crowds or that her body will not respond to her. In summary this unfortunate lady is suffering from Chronic Pain, associated with depression and anxiety. [30] In December 2003, the worker s claim was reviewed by Dr. Arvisais, a Board Medical Consultant. Dr. Arvisais noted that there was no evidence that the worker had sustained a head injury at the time of the accident and felt that the worker s complaints of dizziness and chronic headache were not compatible with the accident history. Dr. Arvisais noted that the worker appeared to have an ongoing low back impairment and indicated that she had ongoing medical restrictions, such as prolonged walking, standing, sitting, bending or heavy lifting. Dr. Arvisais felt that these restrictions, together with the complaints of dizziness, meant that the worker was only capable of sedentary level work. He did not think that she was totally impaired. He felt it unlikely that the worker s psychological problems arose from the accident. However, he recommended a referral to a Functional Restoration Program, given the significant mention of non-organic findings. [31] The Claims Adjudicator determined that a referral to a Functional Restoration Program was not indicated because it had been determined that the worker did not have entitlement to benefits under the Board s chronic pain disability policy.

6 Page: 5 Decision No. 1348/08 [32] The most recent medical report in the record is from Dr. Kirstine, and is dated January 10, In that report, Dr. Kirstine advised that the worker was suffering from a major depressive disorder and anxiety, as well as marital difficulties and financial problems. She added: [The worker] following the accident at work, was unable to continue working, she developed chronic pain. Prior to that, her memory and concentration were very good and they have become quite poor. She has feelings of hopelessness and helplessness usually because of pain. She has developed very poor sleep, because of neck pain. She has chronic headaches and she was seen by a neurologist. She has developed agoraphobia and she has difficulties doing her activities of daily living. She depends on her husband and her son to help out. Nevertheless, she and her husband have become estranged. She feels very upset. She was very active and happy before the accident. She used to entertain people and have parties, however, because of her condition and the pain, she does not socialize anymore. (iv) The worker s current disability [33] The worker testified that she is significantly disabled by pain. The pain affects her whole back, especially her low back, and her shoulders and neck. The worker testified that she also suffers from severe headaches. She initially indicated that she always has a headache but later indicated that she sometimes goes for a few days with no headache. [34] She indicated that her neck pain is quite severe. She now uses a cervical collar for a few hours a day. She indicated that her headaches are made worse by neck pain. She testified that a few days before the hearing, her head was visibly swollen. [35] The worker testified that she feels nervous all the time and that she does not feel like doing things. She lives in an apartment with her husband. However, they have separate bedrooms and rarely speak to each other. They have never separated, but live as if they are no longer husband and wife even though they live in the same apartment. The worker indicated that she can t do the laundry but she does some housecleaning and simple cooking. [36] The worker has grownup children and three grandchildren. She enjoys having the grandchildren around, but they can only visit if their parents come too. She and a friend go to an Evangelical Church every Thursday. A friend comes to get her and they take a bus to Church, which takes about five minutes. [37] The worker provided conflicting evidence about her activities outside the home. She initially indicated that she goes out shopping by herself if she needs something. However, she then indicated that she never goes out by herself. She explained that on at least two occasions, she was shopping by herself when she experienced a temporary total blindness and felt confused and lost. Although this has not happened recently, she explained that she is still afraid to go out by herself. [38] The worker then indicated that she has experienced vision problems ever since the accident. She testified that at the time of the accident she experienced a temporary loss of vision and felt that her eyes were burning. She testified that she has experienced vision disturbance ever since although the nature of this problem was not clear.

7 Page: 6 Decision No. 1348/08 [39] The worker testified that she mentioned all of these problems to the doctors who she has seen since the accident and she did not know why they did not properly record her complaints in their reports. [40] The worker testified that she could not possibly have returned to work in 2003 or at any time since. She indicated that it is her opinion that she likely would have died if she had tried to return to work. (v) Submissions [41] On behalf of the worker, Mr. Consiglio submitted that there is no evidence that the worker had any significant health problems before the accident and that there is evidence that she has been totally impaired ever since the accident. He noted that the worker testified that she had previously been employed for 22 years with a different employer, before starting her employment with the accident employer. [42] Mr. Consiglio reviewed the Board s chronic pain disability policy, and submitted that the worker met all the criteria and that she was entitled to benefits under the policy. [43] Mr. Consiglio conceded that on the basis of the worker s physical impairment alone, it is probable that the worker could have participated in an early and safe return to work program and that the reason that she could not was her psychological/chronic pain disability problems. He agreed that if the worker was not entitled to benefits under the chronic pain disability policy she is not entitled to further LOE benefits. [44] On behalf of the employer, Mr. Caplan advised that the employer does not dispute that the worker is now significantly disabled and that she suffers from anxiety and depression. However, the employer feels that these problems did not result from the work-related accident. Mr. Caplan emphasized that the employer would have done whatever needed to be done to help the worker to return to work. He suggested that if she had tried to return to work, she might not have become so disabled by her psychological problems. (vi) The Board s chronic pain disability policy [45] The Board s chronic pain disability is set out in Operational Policy Manual Document No It establishes the following criteria: 1. A work-related injury occurred. 2. The chronic pain is caused by the injury. 3. The pain persists 6 or more months beyond the usual healing time. 4. The degree of pain is inconsistent with the organic findings. 5. The chronic pain impairs earning capacity. [46] To satisfy the second criteria and to establish that the chronic pain is caused by the injury, the policy requires: Subjective or objective medical or non-medical evidence of the worker s continuous, consistent and genuine pain since the time of the injury, and a medical opinion that the

8 Page: 7 Decision No. 1348/08 worker s pain (except its persistence and/or severity) are compatible with the worker s injury, and are such that the physician concludes that the pain resulted from the injury. (vii) Conclusions [47] On the basis of the worker s testimony and the available medical evidence, I must conclude that the worker is not entitled to benefits under the Board s chronic pain disability policy. The primary reason for this is that there are several important discrepancies in the evidence regarding the nature of the original injury and the nature of the worker s ongoing complaints. [48] The original reporting, including the initial report from Dr. Gallant, indicated that the worker tripped over a cart and suffered a low back and left leg injury. However, the worker testified that the injury also involved a severe whiplash injury to her neck, together with a visual disturbance. In my view, complaints of this nature would not have been ignored by the worker s family doctor and would likely have been recorded in the original report of injury. [49] It must be noted that the absence of a history of a severe whiplash injury at the time of the accident is not limited to the original reporting. It is not noted in any of the medical reporting. This history appears to have emerged for the first time at the hearing. The discrepancy between the medical reporting and the worker s testimony raises doubts about the worker s testimony about the nature of her injury. [50] I similarly note that while the worker testified she experienced transient total blindness at the time of the accident, this symptom, which would surely have been of medical concern, is not noted in the medical reporting. According to the worker s testimony, she has experienced similar episodes on at least two occasions. Other than a notation of vague visual disturbance with the dizzy spells in Dr. Morgenthau s report, this symptom is not noted in the medical reporting. [51] The worker informed Dr. Morgenthau that she had hit her head at the time of the accident. However, she testified at the hearing that she did not hit her head. [52] There is mention in Dr. Gallant s Progress Report of November 26, 2002 that the worker was experiencing vaginal bleeding and abdominal pain. Although these symptoms are not further mentioned or explained, it is noted that they seem to have arisen shortly after the accident, and were indicated to be a factor that was delaying the worker s recovery. In the absence of medical confirmation, I am unable to accept the worker s theory that these symptoms resulted from direct trauma at the time of the original accident. [53] Based on the available evidence, it appears that the original injury involved a low back strain and a left leg injury. The medical evidence does not support that the worker suffered a head or neck injury or abdominal injuries at the time of the accident. [54] As noted by Dr. Bishop, the worker developed severe psychological symptoms very soon after the injury. Dr. Gallant described the symptoms as a post traumatic stress syndrome although he agreed with Dr. Bishop that it was unusual for such severe symptoms to develop so quickly. While it is certainly possible for psychological symptoms to develop quickly, the unusual rapidity of the onset and their severity raises questions about whether there were factors

9 Page: 8 Decision No. 1348/08 other than the accident that may have contributed to the development of the problems. In this regard, there is evidence that the worker s relationship with her husband has deteriorated significantly. While this could have happened as a result of the worker s pain disability, it would also be a significant source of psychological stress. [55] As noted, there are also some discrepancies in the evidence regarding the worker s impairment and how it impacts on her ability to function. These include discrepancies about her activities outside the home and whether she can go out by herself and, if not, why not. [56] The Board s policy requires evidence of subjective or objective non-medical evidence of the worker s continuous, consistent and genuine pain since the time of the injury, and a medical opinion supporting that the worker s pain resulted from the injury. [57] On the basis of the available evidence, I am unable to conclude that there is sufficient evidence of continuous, consistent and genuine pain since the time of the injury. The worker s complaints of pain feature her upper back and neck and I find that the evidence does not support that the original injury involved those areas. I also note that while Dr. Kirstine has indicated that the worker s psychological symptoms arose after the accident, she has not provided a clear indication that worker s pain symptoms arose as a direct result of the injury. [58] For these reasons, I must conclude that the worker is not entitled to benefits under the Board s chronic pain disability policy. [59] As noted earlier, Mr. Consiglio agreed that the worker would not be entitled to additional LOE benefits unless she was found to have entitlement under the Board s chronic pain disability policy.

10 Page: 9 Decision No. 1348/08 DISPOSITION [60] The appeal is denied. [61] The worker is not entitled to benefits under the Board s chronic pain disability policy. [62] The worker is not entitled to further Loss of Earnings benefits. DATED: June 25, 2008 SIGNED: B.L. Cook

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