WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2133/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2133/14 BEFORE: B. Goldberg: Vice-Chair HEARING: November 19, 2014 at Toronto Oral DATE OF DECISION: December 2, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2606 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) R. Sheridan decision dated May 31, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Mr. L. Dillon, Lawyer Not participating N/A 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. 2133/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a 2011 decision of the ARO, which concluded that the worker did not have entitlement to psychotraumatic disability and that the worker was sufficiently trained to pursue the Suitable Employment or Business of Automotive Services Advisor. The ARO rendered a decision following an oral hearing. [2] A subsequent ARO decision dated November 7, 2012 (which the worker s representative confirmed he was not appealing to the Tribunal) determined that as the worker subsequently found employment at no wage loss at the time of the final LOE review (June 2011), he was entitled to zero LOE benefits. (ii) Issues [3] Noting the subsequent 2012 ARO decision that is not under appeal, with the worker s consent, at the start of the hearing, the worker s representative withdrew the issue of the SEB suitability. [4] Therefore, the only issue before me is whether the worker has entitlement for psychotraumatic disability. (iii) Background [5] The now 59-year-old worker injured his right shoulder after a fall on June 28, The worker had been employed full-time as a carpenter/framer. The Board accepted entitlement for the worker s right shoulder injury, which was diagnosed as a right traumatic rotator cuff tendonitis. The Board granted the worker full LOE benefits from June 29, [6] As of March 13, 2006, the Board considered the worker s right shoulder injury to be permanent. The Board granted the worker a 13% NEL award for the right shoulder injury. [7] The Board determined that the accident employer did not have suitable modified work. The Board referred the worker for LMR services. The SEB of Automotive Services Advisor was selected. The worker received 60 weeks of academic upgrading, 14 weeks of computer training, 22 weeks of specialized automotive training, and 4 weeks of job search training. The worker completed the LMR program on October 31, [8] The Board reduced the worker s LOE benefits as of November 7, 2008 to reflect entrylevel wages of $11.10 in the SEB on a 40-hour week. [9] The worker had right shoulder surgery on March 20, 2009 and the Board restored full LOE benefits until December 3, 2009 when the LOE benefits were again reduced to the SEB rate as the worker was deemed capable of employment within the SEB. [10] In February 2010, the worker objected to the suitability of the SEB and partial LOE. [11] On May 11, 2010, the worker then requested entitlement to psychotraumatic disability. The Board denied entitlement. [12] The worker objected to the Board s decisions.

3 Page: 2 Decision No. 2133/14 [13] In the interim, Memo #110, dated June 8, 2010, and Memo #111, dated August 10, 2010, indicates that the worker re-employed at no wage loss as a security guard. [14] The 2011 ARO decision concluded that there was no evidence that the worker injured his head at the time of the accident. Further, as the worker was reemployed he had no entitlement to depression based on his inability to work as claimed. Further, the ARO confirmed that the worker had received and successfully completed sufficient computer training as part of his LMR program. Therefore, the worker received adequate training to pursue the SEB. [15] It is from this ARO decision that the worker appeals the issue of entitlement to psychotraumatic disability to the Tribunal. [16] As noted above, on June 28, 2011, at the time of the worker s final LOE review, the Board reduced the worker s LOE to zero on the basis that the worker was able to obtain work at no wage loss. The 2012 ARO decision confirmed this finding. The worker did not object to this decision. [17] In 2012 (and again in 2013), the worker submitted medical reporting for treatment related to a left shoulder rotator cuff injury. The Board informed the worker that entitlement in this claim was for his right shoulder only. The issue of entitlement for the left shoulder is not before me. (iv) Law and policy [18] Since the worker was injured in 2005, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [19] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Package #9 Psychotraumatic Disability; Package #50 Suitable and Available Employment benefits as of July 1, 2007; Package #300 Decision Making / Benefit of Doubt / Merits and Justice. [20] I have considered these policies as necessary in deciding the issues in this appeal. (v) Testimony [21] The worker testified that he worked as a carpenter/framer for about a year and a half prior to the accident. The worker testified that he did not have any previous shoulder problems. The worker testified that he had no prior psychological problems or treatment with a psychiatrist. The worker described his fall off the scaffolding, noting that he fell onto his head from a height of about 4 feet. The worker explained that he had problems reaching and had pain even when not moving. The worker recalled that Dr. Richards performed right shoulder surgery. The worker testified that his right shoulder condition got worse. His hand got stiff and he had difficulty moving his arm away from his body. The worker testified that over the last five years, the condition has stayed the same or gotten worse. [22] The worker described his LMR program. He explained that he did not succeed as he had hoped in the academic upgrading component because he had trouble remembering and retaining information. He did not attain a Grade 12 education. He successfully completed the automotive advisor services course but had difficulty with the classwork because the teacher lectured to them. He believes he only passed the course because they were given the exams ahead of time.

4 Page: 3 Decision No. 2133/14 The worker explained that he did a co-op placement for about a month at a car dealership. However, they told him he did not possess the computer or typing skills to do the job. He was advised that they could hire him in a maintenance position but when he told them about his WSIB stuff, they did not offer him the job. He went to another car dealership but after one day, they told him not to return because they could not afford to train him in the computer program. [23] The worker explained that he sent out about 50 resumes but did not get interviews. He explained that he had neither the necessary high school nor the computer skills. He kept looking for a position in the SEB but eventually was going insane and decided to look for other work. When asked to define insane, the worker recalled that he was getting confused and wanted to give up on everything. The worker re-employed as a security guard, which he explained did not involve lifting or repetitive tasks. He worked as a night shift watchman on a construction site. He testified that he had to get a job after the Board cut off his benefits after his surgery. He started full-time but after two weeks, the employer reduced his hours to part-time because he was sleeping on the job. After about 6-9 months, the employer laid him off. He got another part-time security job position on another construction site. He explained that he cannot work more than 20 hours a week because he has too much pain, he cannot concentrate and he is depressed. [24] The worker recalled that his doctor referred him to a psychiatrist because of his memory problems, confusion and depression. He explained that he was depressed because after the accident, he lost everything. He almost lost his family because they had significant financial problems. He saw Dr. Mech in The worker did not provide clear information about how often he saw Dr. Mech after that first appointment. He recalled that he sees him regularly, such as every 2, 3 or 4 weeks. He recalled that when he obtained his first security guard position, the stress went away. However, when he lost that job, the stress came back. [25] The worker explained that he cannot work full time because of his pain. He takes a painkiller prescribed by his family doctor. He usually takes one in the morning and one at night. The worker explained that the medication relaxes the pain. The worker explained that he takes the medication for the pain that he has in both shoulders. The worker also recalled that he saw Dr. Mech for sleeping problems. He explained that he cannot sleep because he has a headache every night. He goes to sleep at about midnight, and then wakes again after about two hours and cannot fall back asleep. He testified that as a security guard, he dozes while working. He does this regularly. He explained that Dr. Mech gave him sleeping pills but he cannot take these when he is working as night-shift security guard. He testified that his problems at home are OK now. They continue to have financial problems. He cannot help at home as he used to; but is able to drive the three of his six children who still live at home to school and pick them up again. (vi) Submissions [26] The worker s representative argued that the facts of this case demonstrate that the worker developed depression due the compensable injury. He argued that the right shoulder condition was more serious than originally believed and ultimately led to failed right shoulder surgery. He described the challenges that the worker faced in the LMR program and that his memory issues were not addressed despite being recognized. He noted that these memory problems persisted and the worker was unable to work in the SEB, having to find part-time work as a security guard instead. He noted that Dr. Mech assessed the worker in 2010, but that his diagnosis of two problems confused the issue respecting entitlement even more. He argued that the worker has been depressed since his unsuccessful 2009 surgery and that this has triggered his depression.

5 Page: 4 Decision No. 2133/14 This in turn has been compounded by his inability to find work in the SEB and maintain fulltime employment as a security guard. He argued that the fact that the worker is only marginally employed and has had a prolonged recovery has led to the development of a psychological condition. [27] The worker s representative indicated that the worker s testimony established that his pain interferes with his sleep, and puts him in turmoil because he cannot return to full-time work. The worker s significant memory issues prevented his ability to successfully upgrade and he was unable to employ in the SEB. This caused the worker to go into a tailspin and created sleep problems, pain issues, problems at home and with his marriage, and created intense worry for the worker. As a result, he saw Dr. Mech who noted his confusion and presumed a head injury. The worker has dementia, but this is unrelated. While depression can be related to dementia, Dr. Koponen has confirmed that there is no brain damage. Further, the dementia is a separate diagnosis from the depression. The worker s dementia is in the background and does not alter his pain and inability to sleep due to the compensable accident. (vii) Analysis [28] The appeal is denied for the reasons that follow. [29] I find that the worker does not have initial entitlement to psychotraumatic disability benefits. I arrive at this conclusion having considered the relevant policy, the available medical information, and the worker s testimony. In particular, I considered all of the available information in the worker s file with respect to his psychiatric condition. I also considered OPM Document No , Psychotraumatic Disability, which states as follows: If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure. 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. Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop Organic brain syndrome secondary to - Traumatic head injury As an indirect result of a physical injury -emotional reaction to the accident or injury -severe physical disability/impairment, or -reaction to the treatment process. The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.

6 Page: 5 Decision No. 2133/14 [30] My review of the evidence from 2005 to 2009 leads me to conclude that the worker did not suffer a traumatic head injury at the time of the accident and did not develop depression during this period. [31] There is no reporting of any head injury in the worker s Report of Injury / Disease Form 6, dated August 5, 2008, the Employer s Report of Injury / Disease Form 7, dated July 29, 2005, or the Health Professional s Report Form 8, and medical imaging from June The Regional Evaluation Centre report of October 17, 2005 does not reference a head injury or post-accident concussive symptoms. [32] The March 13, 2006 Executive Summary from the WSIB Shoulder and Elbow Specialty Program s Return to Work Consultation reflects that the worker was frustrated as he wanted to work due to financial stress, under the heading psychological issues. There is no mention of a heady injury or a psychological condition. [33] There is no reporting related to the worker s psychological condition in the worker s Vocational Rehabilitation Services report. The Psychovocational Report, dated May 15, 2006, does not reflect any concerns regarding a head injury or depression. The report does reflect that this worker has problems with memory and concentration and is rated below average in these areas. [34] The worker saw a neurologist, Dr. G. Koponen, on June 19, 2009 at the referral of his family doctor. The worker reported that he has been misplacing objects since December The worker provided an accident history from 2005 that included hitting his head when he fell and blacking out for fifteen seconds. He complained of headaches since 2007 and difficulty with remembering things. In her summary, Dr. Koponen noted that although the worker reported a 2005 head injury, his memory problems were reported to have begun in She observed that on examination, the worker did have memory and concentration problems. She referred the worker for investigations. In an October 2009 follow up report, Dr. Koponen opined that there might be multifactorial causes for the worker s neurological complaints, including limited education, developmental delay and educational learning issues, financial stress, and personal stress. Dr. Koponen saw the worker again in December 2009 and noted his concerns that he did not have the skills to do the SEB. She reviewed an MRI that showed no signs of a structural lesion and no injury from the scaffold fall. She opined that there was no neurological cause for the worker s memory problems. She did not opine that the worker had a psychological disability related to the injury. [35] Therefore, based on the available evidence from 2005 to 2009 I conclude that there is no medical evidence to establish that the worker suffered a head injury at time of the injury. There is no indication in any of the medical reporting that the worker was experiencing a psychological condition in response to the compensable injury of 2005 during this time period. [36] The first report relating to a psychological condition is a consultation report from Dr. Mech, a psychiatrist, dated May 10, 2010, nearly five years after the compensable accident. In the interim, the worker completed LMR, and began investigation with a neurologist due to increasing memory problems. [37] Dr. Mech saw the worker following a referral from the worker s family doctor, Dr. Wylie, dated April 14, Dr. Wylie wrote that he was referring the worker who is very depressed on the advice of his lawyer [The worker] had a (R) shoulder injury operated on by

7 Page: 6 Decision No. 2133/14 Dr. R. Richards March 09. Dr. Wylie s clinical note from that visit reflects that the worker was depressed because he could not get a job. [38] There is no narrative report associated with Dr. Mech s 2010 report. Dr. Mech related that the worker s provisional diagnosis was as follows: DSM IV Diagnosis: Axis I Axis II Axis III Axis IV Axis V GAF: 45% Major depression Disorder Dependent personality Hypertension, chronic pain right shoulder, chronic headaches, memory problems. Multi-stresses secondary to symptoms; economic problems; interpersonal and marital conflict. [39] Dr. Mech wrote that in addition to depression, the worker suffers from headaches, confusional episodes and memory problems suggestive of concussion at the time of the accident. [40] However, as described above, there is no medical evidence of significance to establish that the worker sustained a head injury or loss of consciousness at the time of the accident or thereafter. As described above, Dr. Koponen s MRI ruled out a post-fall brain injury. Dr. Mech s report does not discuss the onset of the worker s condition, its impact on the worker s functioning, its prognosis, or contain information pertaining to the worker s past medical, social, familial and marital history. Dr. Mech s report references a number of noncompensable contributing conditions and factors. Due to all these factors, I give this report little weight in terms of establishing whether the worker developed a psychological condition due to his compensable injury. [41] In arriving at my decision, I also considered that there is no reporting from Dr. Mech between April 2010 and September The worker did not provide information about whether he continued to see Dr. Mech and there is no medical evidence of significance before me to reflect the treatment provided by Dr. Mech from 2010 to [42] The worker s representative submitted a September 25, 2013 letter from Dr. Mech which stated as follows: As you know he has originally been seen by me in April 2010 presenting with significant depression, however demonstrated as well problems with memory, which I felt could have been secondary to his concussion however in differential possibility dementia type of symptoms was considered. [The worker] presents now with a number of confusional symptoms. He has difficulty in concentrating and as well in remembering. He has missed appointments and had a problem organizing follow up. He has tried to maintain the medication prescribed by me by receiving it allegedly from family physician. He has not been able to work and has been concerned with failure of surgery to correct the defect in his left shoulder. In terms of management of his depression, he has been maintained on Bupropion 150 mg in the morning an antidepressant and Trazodone 100 mg at bedtime a sedative with antidepressant effects in hope that cumulative effects of these two drugs would help him to come close to euthymic level of mood.

8 Page: 7 Decision No. 2133/14 In most recent interview [sic], I have been concerned with his difficulty in concentration with memory defects with inability to make decisions in short a number of problems in carrying out executive intellectual functions. I have started him on donepezil (Aricept) in 5 mg dose. This is a medication that is used in blocking and at times hopefully helping with problems secondary to Alzheimer's type of dementia. He will have a reassessment in about three weeks and at that time, I am sure his Aricept will be increased to 10 mg which is topic medic dosage for this kind of a problem. In view of his current level of functioning, I feel that [the worker] should reconsider his being unemployable and very likely is confronting increasing problems with his mental and intellectual health. [43] While Dr. Wylie indicated in April 2009 that the worker was depressed because he could not get a job, the evidence indicates that the worker re-employed as a security guard by the summer of While the worker has testified that he can only work part-time due to pain and sleepiness, the evidence before me reflects that the worker has a number of non-compensable conditions, including a significant left shoulder condition for which he is seeking treatment, as well as headaches and dementia, for which he takes medication. For example, the worker testified that his inability to sleep at night relates to a problem with headaches as well as to bilateral shoulder pain. [44] With respect to the worker s right shoulder surgery, the evidence on record from Dr. Richards, in an opinion dated November 16, 2009 indicates that further rotator cuff surgery would not be helpful as an ultrasound showed the right rotator cuff tendon to be intact. Dr. Richards opined that the worker may have ongoing discomfort due to ongoing irritation of your rotator cuff tendon. If your symptoms persist over the next months, the investigation could be repeated. In the last opinion on record from Dr. Richards dated January 5, 2010, he stated that the worker would not benefit from further surgical treatment and was encouraged to use stretching and strengthening exercises. Thus, the medical opinion from Dr. Richards does not identify the surgery as failed as described by the worker s representative. [45] The record reflects that the worker developed a non-compensable left shoulder condition that arose in The worker requested physiotherapy treatment for his left shoulder in 2012 and He provided an MRI from April 2012, which indicated that the worker had a left shoulder tear, and mild to moderate degenerative changes and impingement in the rotator cuff of the left shoulder. Dr. Benmostah provided a note dated July 7, 2012 requesting treatment for the worker s left shoulder rotator cuff tear. In correspondence dated September 21, 2012, the Board indicated that the worker did not have entitlement for the left shoulder. Dr. Wylie, the worker s treating physician, submitted a Health Professional s Report (Form 8), dated October 18, 2013, regarding the worker s left shoulder injury, noting that the injury arose in He wrote that the worker s left shoulder is inflamed. He prescribed physiotherapy and painkillers. No action was taken according to Board memoranda #127, dated March 4, 2014, as the worker does not have left shoulder entitlement. [46] This medical evidence establishes that the worker had or developed a number of noncompensable problems at the time he was considered to have developed depression in The worker testified as to the pain in both shoulders and his need for medication to treat both shoulders. The worker was able to obtain employment in 2010 and again, following a lay-off. The worker testified that his stress cleared when he was able to find work. While the worker s inability to obtain employment in the SEB may have been stressful, he found other employment.

9 Page: 8 Decision No. 2133/14 The worker also has a host of non-compensable issues, including his non-compensable left shoulder problem, dementia, and according to Dr. Mech, hypertension, headaches, memory problems, and interpersonal and marital conflict. Therefore, I find that the worker s compensable injury of 2005 was not a significant contributing factor to the development of the worker s depression nearly five years after the accident. [47] I give Dr. Mech s 2013 little weight for the following reasons. The worker s representative has argued that the confusion arose in this worker s case, when Dr. Mech provided two diagnoses in 2010, and started testing worker for dementia. He argued that the dementia is secondary and unrelated. As noted, there is no reporting from 2010 to The 2013 report from Dr. Mech is the only other medical evidence on record about the worker s psychological condition. This is the only report before me containing any narrative about the worker s condition and treatment with a psychiatrist. Dr. Mech appears to understand incorrectly that the worker had a concussion, was unable to work and had failed left shoulder surgery. However, there is no information about left shoulder surgery in the file. The worker, by his own testimony, is working. As discussed earlier, the worker did not suffer a concussion due to his compensable injury. Dr. Mech offers no specific opinion in this report that reflects that he believes that the worker is depressed due to the compensable right shoulder injury. Moreover, the report indicates that the worker, sadly, is suffering from dementia-type problems that are affecting his activities of daily living and ability to function mentally and intellectually. Therefore, I give this report little weight in terms of establishing that the worker should have entitlement to psychotraumatic disability due the 2005 compensable injury. [48] Therefore, I find on the balance of probabilities that the worker s compensable accident including its sequelae was not a significant contributing factor to the worker s psychological disability as defined in the Board policy. The available medical information, including the lack of medical evidence contemporaneous to the accident concerning head injury or psychotraumatic disability, the worker s non-compensable health profile, and the worker s ability to return to work by 2010, persuade me that the worker s compensable accident was not a significant contributing factor to the development of a psychotraumatic disability. Thus, the worker does not have entitlement to psychotraumatic disability benefits.

10 Page: 9 Decision No. 2133/14 DISPOSITION [49] The appeal is denied. [50] The worker does not have entitlement to psychotraumatic disability. DATED: December 2, 2014 SIGNED: B. Goldberg