WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1985/14 BEFORE: A.G. Baker : Vice-Chair E. Tracey : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: October 30, 2014, at Toronto Oral DATE OF DECISION: November 7, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2415 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated September 21, 2012 and February 12, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Oliverio, Paralegal Not Participating M. Wolosiuk, Polish Language 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
Decision No. 1985/14 REASONS (i) Introduction and issues [1] The worker appeals two Appeals Resolution Officer (ARO) decisions dated September 21, 2012 and February 12, 2013. The following issues are on appeal from those decisions: 1. Entitlement to benefits for a permanent low back impairment. 2. Entitlement to benefits for permanent Psychotraumatic Disability (PD). 3. Quantum of the worker s Loss of Earnings (LOE) benefits beyond September 27, 2010. (ii) Background and testimony [2] The Panel found the background information from the ARO decisions of assistance in this case. The background from the 2012 decision stated as follows: This then 48 year old assembly line worker reported a gradual onset of bilateral hand discomfort and shoulders related to the nature of her work activities (repetitive arm and hand movement.) An accident date of September 28, 2006 has been established. Entitlement was accepted for the neck (strain) and wrists (carpal tunnel syndrome) for which a 24% Non Economic Loss award was granted. In December 2008 the worker was referred for what was previously termed Labour Market Re entry (LMR) services now Work Transition and a Suitable Employment or Business (now referred to as Suitable Occupation) of Customer Service/Information and Related Clerks identified as being appropriate given her limitations. Following the completion of the LMR program, LOE benefits were reduced to partial as of September 27, 2010 based on the earnings associated with the Suitable Occupation (SO). The worker was notified of her entitlement by way of correspondence dated September 27, 2010. In a subsequent decision by the Case Manager dated October 6, 2011the worker was notified there was no basis for Psychotraumatic disability entitlement and also confirmed the payment of partial LOE benefits. [3] We also noted further background information from the 2013 ARO decision as follows: This now 54 year old worker was working as an Assembler, when on July 25, 2007 she slipped and fell on oil that was on the floor. The worker fell onto her hands and knees, resulting in soft tissue injuries to the low back, left lower ribs, and left knee. The worker was off work from July 26, 2007 to August 24, 2007 when she returned to her pre injury modified duties resulting from injuries in a prior claim. The worker was permanently laid off May 16, 2008. Relative to this case is the worker's prior case with the same employer. Under that case the worker has a 24% NEL for a cervical strain, and bilateral carpal tunnel syndrome. Loss of earnings benefits have been paid following the layoff, and the worker was also provided with Labour Market Re-entry (LMR) services. At this time the worker is being paid a partial wage loss based on the determined earnings from the LMR plan. On August 12, 2012 the Case Manager reviewed the file, at the request of the worker's representative, for entitlement to a Non-Economic Loss (NEL) and payment of full Loss of Earnings (LOE). The Case Manager concluded that the worker was not entitled to a NEL as the current findings are not related to the low back strain resulting from the
Page: 2 Decision No. 1985/14 original injury. Payment of full LOE was also denied as there was no further entitlement in the case. [4] As noted above, the worker s objections regarding the low back, LOE benefits, and her psychiatric claim were all denied. The worker has appealed those issues to the Tribunal. For the record, the Panel also noted the submissions on behalf of the worker, as well as her testimony. While they are not cited in full below, we have considered them as necessary in reaching our decision. (iii) Law and policy [5] The Workplace Safety and Insurance Act, 1997 is applicable to this appeal. The Panel also noted section 126 of the WSIA requiring that we apply Board policy. In that regard, the following policy packages, Revision #8, have been stated by the Board to be applicable to this appeal: 9 Psychotraumatic Disability 33 LOE Benefits decisions as of July 1, 2007 37 Reviewing LOE benefits as of July 1, 2007 50 Suitable and Available Employment benefits as of July 1, 2007 61 NEL Entitlement 300 Decision Making/Benefit of Doubt/Merits and Justice [6] We also noted Board Operational Policy Manual (OPM) Document No. 15-04-02, which refers to Psychotraumatic Disability in the following terms: Policy A worker is entitled to benefits when disability/impairment results from a work-related personal injury by accident. Disability/impairment includes both physical and emotional disability/impairment. Guidelines General rule 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. Psychotraumatic disability/impairment resulting from organic brain damage is assessed as a permanent disability/impairment. Psychotraumatic disability entitlement Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop
Page: 3 Decision No. 1985/14 Organic brain syndrome secondary to - traumatic head injury - toxic chemicals including gases - hypoxic conditions, or - conditions related to decompression sickness. 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 related to the work-related injury. (iv) Decision (a) Low back [7] The Panel noted the testimony of the worker in regard to her personal and employment history, was well as her low back injury. She noted her slip and fall in July of 2007, and resulting lost time from work. She stated her pain never resolved, and that she was prescribed medication, physiotherapy and massage therapy. She stated she was able to return to work until her layoff in May of 2008. [8] The worker was provided modified duties but stated she deteriorated to the point she now uses a cane. She also noted obtaining a back brace and wrist splints. She continued some physiotherapy and had injections to the neck at one point. She also had a number of tests, including MRI exams that will be noted further. The worker stated her back continued to be a problem, painful and did not improve. [9] It was also submitted that the worker did not have prior back problems before her fall at work. A number of reports were also noted that indicated the worker had ongoing back pain beyond her initial injury. They included for example the REC assessment on file in April of 2008 that indicated the worker had low back pain, and difficulty with standing and walking. While the report also looked at the worker s other injuries, her overall prognosis for functional recovery was poor. [10] It was noted by the Panel however that the REC summary report found a relatively normal lumbar spine. X-rays from 2007 had also made that finding. The report also noted the MRI results on file. The MRI results in November of 2007 had found no significant degenerative disease in the discs detected and no evidence of any significant disc herniation detected on the lumbar spine. Put succinctly, there was no persuasive evidence that degenerative problems were an issue during the initial time period after the worker s sprain type low back injury. However, they did become apparent on an ongoing basis, as noted in the MRI results discussed below some three years later. [11] It was submitted nevertheless that the worker s low back continued to be problematic more than a year post-accident. The Panel was directed to a July 2008 Interdisciplinary Report that cited for example limitations on sitting, walking, standing and bending, which were in
Page: 4 Decision No. 1985/14 significant part related to the low back. We also noted the reporting from the family doctor, Dr. Grossman, who continued into 2014 to report the worker s chronic low back pain since her work accident. The worker s physiatrist, Dr. Amani, also reported the worker s ongoing pain for example in 2009, when it was reported that a back brace was prescribed for chronic low back pain. [12] The Panel acknowledges that the worker has had ongoing low back problems. However, we were not persuaded that the work accident and injury were a significant contributing factor to the worker s ongoing condition. Rather, we noted similar to the ARO decision in 2013 that MRI results in April of 2010 indicated interval worsening at L5-S1 from 2007, along with new discogenic changes at L4-L5. The report also indicated mild to moderate facet degenerative changes and disc bulges. [13] A 2014 MRI was submitted by the worker s representative and in our view confirms the continuing age related changes. We noted there were some mild findings of facet osteoarthritis bilaterally, as well as mild left neural foraminal stenosis. However, it was also noted that the worker now has a broad based central/right disc protrusion displacing the S1 nerve root. The interpretation was also found to support the Panel s conclusion in this case, stating that the worker has Moderate lumbar spondylosis with a moderate sized central disc protrusion at L5-S1. Again, these were very different findings from the 2007 MRI reporting, and just following the work accident. [14] The Panel was of the view that the worker s ongoing degenerative non-compensable changes were evident in more recent MRI results, and had not been evident in or about the time of the worker s original low back strain. In our view, these are normal age related changes and not related to the work injury. Benefits for a permanent low back impairment are therefore denied. (b) Psychotraumatic disability [15] The worker also testified that she also obtained psychiatric help for various problems with sleeping, frustration, concentration, and depression. She attended both a psychotherapist and a psychiatrist, Dr. Barabtarlo. The worker stated she had problems in her retraining with concentration and headaches that caused her to miss a significant portion of the program. She stated she could only tolerate a couple of hours a day. [16] The worker stated her daily life is very sedentary, involving resting and taking medication. She has had psychiatric treatment approximately once a month since 2010, along with prescriptions from her family doctor and psychiatrist that included anti-depressants daily. The worker stated she continues to be depressed with ongoing pain. She noted the impact it has on her and that it had on her retraining. We also noted the submissions from the worker s representative regarding the worker s psychiatric condition, but did not find it necessary to repeat them given our below finding. [17] The Panel noted the findings from the 2012 ARO decision, which denied the worker s psychiatric entitlement largely based on the assessment of Dr. Bail, psychiatrist, in August of 2011. The ARO preferred the comprehensive assessment from Dr. Bail over a number of other reports that were indicated to only reference depression or anxiety, without sufficient evidence the worker suffered from those conditions. The conclusion of Dr. Bail in part stated that the worker was attempting to feign cognitive disfunction, and also stated as follows:
Page: 5 Decision No. 1985/14...It is my opinion that there is no valid reliable or reproducible evidence to support a psychiatric diagnosis for [the worker] at this time. Although she is offering various psychologically related complaints, I do not feel that there is any valid or reliable evidence to support a diagnosis of major depressive disorder, anxiety disorder, or pain disorder associated with psychological factors and general medical condition. It is my opinion that there is evidence to support a diagnosis of Malingering. There were other discrepancies and inconsistencies noted today. [The worker] claimed to have severe impairment with memory and concentration. However, during the formal mental status portion of the examination, she provided a profound pattern of near miss, inconsistent, and non credible responses. Concentration and memory were entirely normal throughout the rest of the interview...it is my opinion that [the worker] therefore has credibility problems regarding her accident related complaints. It is my opinion that the history which she has been providing over time cannot be relied upon. It is likely that various assessors and treating clinicians have been basing their opinions upon misrepresentation. [18] The Panel has noted the report from Dr. Bail and found that it may well go to the extent of the worker s psychiatric condition. However, we did not find it to be consistent with the extensive reporting from the worker s treating doctors. Rather, we were persuaded that the worker does have a Psychotraumatic Disability that is significantly related to her work injuries. In coming to that finding, we noted the following information. [19] The worker s family doctor has indicated the worker s ongoing psychiatric condition is related to her permanent impairments, which we note again have a significant 24% NEL rating. A report from Dr. Grossman in 2014 indicated that the worker had been depressed and seeing a psychiatrist on a regular basis, as well as noting the worker s current medications, including Cymbalta, Respiradon, Lorazepam, as well as sleep and pain medication. The doctor also noted the impact on the worker s functional and employment prospects. [20] The interdisciplinary reporting in 2008 included a psychology report. The worker had by that time already reported ongoing depressive and anxiety related symptomatology. She reported sadness, low energy, sleep disturbance, cognitive difficulties and increased irritability. The worker also described increased frustration as a result of her ongoing pain and physical restrictions, along with worrying about her future health. [21] The worker was also referred for treatment of depression by a psychotherapist, Dr. Bodasing, who reporting in November of 2010 that the worker had been a patient since August of 2009 and had already been receiving antidepressant therapy. The worker had also attended a pain management clinic, with a report in November of 2010 that also noted depression and anxiety. In December of 2010, Dr. Bodasing reported a diagnosis that included chronic pain disorder and major depressive disorder that also included reference to the cervical spine injury, on compensation and loss of job, and a GAF score of 65. [22] The Panel also found particularly persuasive the reporting from Dr. Barabtarlo, the worker s ongoing treating psychiatrist. We noted for example the report from the doctor in January of 2012, which was also cited by the ARO, and that also commented on the report from Dr. Bail. Dr. Barabtarlo disagreed with the conclusion of malingering and reducing the worker s medication. Rather, the doctor emphasized the diagnosis of chronic pain and major depression, stating that the worker was in no way feigning her symptoms. It was also stated that Due to the long lasting nature of her condition and her poor response to treatment so far, her prognosis for
Page: 6 Decision No. 1985/14 the long term remains guarded if not poor. The doctor also confirmed the worker s ongoing anti-depressant medication and low functional level. [23] A more recent June 2014 report from Dr. Barabtarlo indicated he had been seeing the worker since June of 2010. Again, she was diagnosed with chronic pain syndrome and major depression. The doctor noted the worker was exhibiting severe depressive and anxiety symptoms, these being mainly sleep and appetite disturbance, crying spells, decreased energy level, memory impairment, difficulty in concentration associated with anger and irritability. [24] The report form Dr. Barabtarlo continued by noting for example problems with her mood, thinking process, and ongoing pain complaints that included the worker s compensable injuries. Again, the worker was noted to be somewhat unresponsive to treatment despite having been prescribed various medications. Her GAF score was stated to be 50, indicating a significant impact on her level of functioning. The doctor also noted an impact on her employability and again noted a poor long-term prognosis largely due to her work injuries. [25] In summary, we note again the report from Dr. Bail. However, we have also noted the reports from the worker s family doctor, and particularly her treating psychotherapist and psychiatrist. After weighing the medical evidence on file, we found on a balance of probabilities that the worker s psychotraumatic disability was shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly related to the worker s permanent impairments. We find therefore that the worker is entitled to benefits for Psychotraumatic Disability. Further, given the length of time since the worker s original injury and the subsequent onset of psychiatric difficulties, we find she is entitled to a NEL assessment in that regard. [26] Finally, the Panel has found that the worker is entitled to ongoing Psychotraumatic Disability benefits. In our view, the worker ought to have her NEL assessment completed before any further adjudication is conducted in regard to the worker s employability and for the claimed LOE benefits noted above, beyond September 27, 2010. That determination is remitted to the Board once the worker s NEL assessment has been completed.
Page: 7 Decision No. 1985/14 DISPOSITION [27] The appeal is allowed in part. [28] The worker is entitled to benefits for ongoing Psychotraumatic Disability, and a NEL assessment in that regard. [29] The determination of the worker s employability beyond September 27, 2010, including the extent of LOE benefits, is remitted to the Board for further adjudication once the above noted NEL assessment has been completed. DATED: November 7, 2014 SIGNED: A.G. Baker, E. Tracey, C. Salama