SUMMARY. Chronic pain; Significant contribution (of compensable accident to development of condition).

Transcription

1 SUMMARY DECISION NO. 2042/00 Chronic pain; Significant contribution (of compensable accident to development of condition). The worker suffered a low back strain in The worker appealed a decision of the Appeals Resolution Officer denying entitlement for chronic pain. The worker was suffering from chronic pain. She had a preexisting psychiatric disability, which had caused her to lose some time from work. However, the worker was making progress and improving. The accident worsened the worker's condition. The preexisting condition was a significant contributing factor to the worker's chronic pain condition, but the compensable accident was also a significant contributing factor, at least on an aggravation basis. The appeal was allowed. [8 pages] DECIDED BY: Josefo DATE: 30/08/2000 ACT: WCA

2 2000 ONWSIAT 2454 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2042/00 Hearing Date: August 16, 2000 Worker: Participating Worker Representative: Ms. Connie Oliverio, Claims Management Inc. Vice-Chair: J. Josefo Employer: Not Participating Employer Representative: N/A Interpreter: Mrs. E. Pistarelli, Italian language, to assist the worker Decision on Appeal: Mr. V. Rabbito, Appeals Resolution Officer, dated February 8, 1999 Issue(s) on Appeal: Entitlement to benefits for chronic pain disability THE RECORD [1] The following were marked as Exhibits: Case Record prepared by the Tribunal Counsel Office ( TCO ), Exhibit #1, correspondence from the Office of the Vice-Chair Registrar to Ms. Oliverio dated May 23, 2000, Exhibit #2, correspondence dated May 23, 2000 from Ms. Oliverio to the Tribunal attaching additional medical reports, Exhibit #3, correspondence from the Tribunal to Ms. Oliverio dated July 25, 2000, Exhibit #4, correspondence from Ms. Oliverio to the Tribunal dated July 19, 2000 to which was attached a medical report, Exhibit #5. [2] Ms. Oliverio also sought leave to introduce a new medical report, from Dr. B.D. Sood, dated July 24, I was informed that Ms. Oliverio only received this additional medical report towards the end of July, after the deadline for tendering such evidence had expired. [3] Ms. Oliverio was reminded of the importance of obtaining all evidence as soon as possible so that it can be filed in a timely fashion. Notwithstanding the late filing of this aforesaid report, however, it appeared to be relevant to the hearing. Thus, it was admitted as Exhibit #6.

3 Page: 2 Decision No. 2042/00 THE REASONS (i) Background and issues on appeal [4] The Appeals Resolution Officer, in his decision, set out the background of the appeal as follows: The worker, who worked as a meat packer, on May 27, 1996 accidentally tripped over an electric cord and fell on her left side. The initial diagnosis reported was sprained low back and she was prescribed conservative treatment. Entitlement to compensation for health care and lost time benefits was allowed. Entitlement was subsequently extended for the left arm, left shoulder and left hip. The worker attempted to return to modified duties on October 16, 1996 but was not able to continue. Vocational rehabilitation services were initiated in November Arrangements were made for the worker to attend a gradual work trial from April 7, 1997 to May 30, The employer agreed to re-employ the worker following the work trial at no wage loss. The worker stopped attending the work trial on April 17, 1997, and vocational rehabilitation services were discontinued under the category of self-perceived restrictions. The Claims Adjudicator concluded the worker has no entitlement to chronic pain disability, nor entitlement to compensation for health care and lost time benefits subsequent to April 17, Mr. Consiglio [the previous representative of the worker] on the worker s behalf objected and these are the issues before the hearing. [5] After an oral hearing the Appeals Resolution Officer concluded, in part, as follows: The worker, prior to the May 27, 1996 compensable injury, attended psychiatric assessments with Dr. B.D. Sood beginning some time in At the hearing the worker testified circumstances leading to the psychiatric assessments were due to marital problems. Dr. Sood, in a report of July 20, 1997, reported that he saw the worker on a monthly or bi-weekly basis and that the worker was originally diagnosed with major depression. The worker attended the health recovery clinic s pain management program between November 20, 1997 and March 20, 199[8]. On completion of the program it was reported that she was fit for modified work with no lifting over 20 pounds, and it was suggested that she return to modified work on a gradual basis starting with 2 hours per day and gradually increase to eight hours over a period of seven to eight weeks. It was also recommended that she undergo no further treatment. The Board s Operational Policy speaks to the subject of chronic pain disability. Effectively, the policy states that the Board will accept entitlement to chronic pain disability when it results from a work related injury and there is sufficient credible subjective and objective evidence establishing the disability. The worker, prior to the May 27, 1996 compensable injury suffered from non-organic symptoms diagnosed as major depression. Since the May 27, 1996 injury she has also been diagnosed with chronic pain and fibromyalgia. The attending psychiatric consultant s findings have continued to be those of depression. The worker s reported non-organic symptoms prior to and after the May 27, 1996 compensable injury have remained similar if not identical. It therefore cannot be concluded that the worker s non-organic condition is attributable to the compensable injury. [6] Ms. Oliverio, at the outset of the hearing, agreed that there was no issue of an organic impairment in this matter. Organically the worker would be able to perform the modified work. It was agreed that the issue was one of chronic pain disability.

4 Page: 3 Decision No. 2042/00 [7] Specifically, there is no dispute that the worker suffers from chronic pain. The issue is whether the May 27, 1996 work injury was a significant contributing factor to the worker s ongoing disability. If I find that the work accident was a significant contributing factor to the worker s development of a CPD, then the level and duration of benefits would be left to the Board to determine, subject to the worker retaining all her ordinary appeal rights. (ii) Evidence of the worker [8] The worker testified that she became employed with the accident employer some twenty years before the work accident. She described her previous very good attendance record and emphasized that, except for hospitalization for some surgeries, she was always able to attend at work on a regular basis. [9] The worker emphasized that even when she was under the care of Dr. Sood starting in late 1993 for depression, she was still able to work and did not suffer from any pain. [10] The worker began seeing a psychiatrist, Dr. Sood, in She went to him for some counselling in respect of marital problems she was having, along with depression that resulted from those problems. By the summer of 1994 the worker had improved, though she did suffer a re-lapse in the fall of She improved again in early [11] In May 1995 the worker again needed to see her psychiatrist on a regular basis, and was again depressed due to certain problems with her physical health. She noted improvement in the new year of 1996, though she continued to see Dr. Sood, albeit less frequently. [12] During this period of time while the worker was taking treatment except when she was hospitalized for surgeries she emphasized that she was able to perform all her normal activities. She attended work regularly and did not miss time due to depression. She was able to perform her household chores as well as shop for her family. In other words, she continued to function in a normal fashion. She did not, she asserted, suffer from any pain during this time. [13] Indeed, even after her hospitalizations, the worker testified that as soon as she was released from the hospital for her organic (non-compensable) conditions, she would very quickly return to her normal routine at home as well as at work. [14] The worker testified that this changed dramatically after the May 27, 1996 work accident. She simply could not recover from this accident and has suffered ongoing and indeed worsening pain ever since. She has undergone various treatments including physiotherapy, acupuncture and even facet block treatment. Other than some temporary relief, none of this has helped her condition. [15] The worker s day to day routine has also changed dramatically. She is unable to work, though she testified that she wishes she could return to more normal functioning. While she can do some laundry on some days, she is very reliant upon her spouse as well as her daughter. She does not cook meals, has difficulty with walking, cannot lift anything, including her grandchildren and also has become intolerant of noise. She notes that the noise of her grandchildren (whom she cares for) is disturbing. She also cannot abide noise from either television or the radio.

5 Page: 4 Decision No. 2042/00 [16] Instead of socializing on a regular basis as she did before the May 27, 1996 accident (and even while she was under the care of Dr. Sood in the early 1990 s), she is essentially housebound. She depends on her daughter to drive her back and forth to various doctor s appointments. While she did drive previously, because of the medication she takes as well as because of occasional bouts of dizziness, she does not feel that it is safe for her to drive. (iii) Submissions for the worker [17] Ms. Oliverio contrasted the worker s lifestyle and abilities prior to the May 27, 1996 accident with her condition after the accident. It was her submission that the worker s ongoing depression and difficulties were caused, at least in part, and to a significant extent, by the work accident. [18] It is conceded that the worker had some depression and was receiving treatment for this depression prior to the accident. It is submitted, however, that this depression was lifting and was responding to treatment. Moreover, the worker never had ongoing pain problems or a pain syndrome. [19] Accordingly, the workplace accident was a significant causative factor of the worker developing CPD. On that basis, Ms. Oliverio argued that the condition is compensable and that the worker should receive ongoing benefits after these were closed. (iv) Discussion of relevant medical evidence [20] It is clear that the worker has a pain syndrome of some sort. I find her to have testified in a credible fashion and I accept her evidence as to her ongoing difficulties. The issue to determine is whether the work accident was a significant contributing factor to the worker s difficulties; or, as the Appeals Resolution Officer concluded, the worker s condition of depression remained unchanged after the work accident from what it was prior to that time. [21] Having reviewed Policy Document from the Operational Policy Manual, I note that the worker does have the following: 1. Chronic pain, which did not exist before, but only after, the workplace injury, 2. Pain that has persisted beyond the usual healing time, 3. Pain that has persisted for well beyond six months following the usual healing time, 4. Pain that is inconsistent with organic findings, and 5. Pain that does impair earnings capacity. [22] The organic findings are well set out in the Regional Evaluation Centre report of September 30, That report concluded that the worker has functional overlay and no organic explanation for her condition. [23] It is also clear that, as of September 8, 1997, the Board s consulting psychologist, Dr. Helwig, concluded in Memo No. 60 as follows: On the basis of the above, it appears that [the worker] had a least a moderate pre-existing psychological condition in the form of a previously treated major depression. However, Dr. Sood s reports suggest that she had recovered from that and that her condition

6 Page: 5 Decision No. 2042/00 deteriorated following her compensable injury. As such, I think that there is some merit in considering psychotraumatic entitlement on an aggravation basis in this claim. [24] Dr. Sood in his more recent June 17, 1999 report, which was not before the Appeals Resolution Officer when he determined this matter, describes the various treatments the worker had received from Of important note in that report is Dr. Sood s remarks that the worker had been off work since November 11, The worker returned to work on March 14, [25] Thus, it appears that the worker did miss some time for her depressive condition prior to the compensable of May [26] Dr. Sood also notes that the worker was off work in September 1994 through to November 28, There is no notation that she missed work from that point onwards until the compensable accident. [27] Dr. Sood concludes in his report as follows: She has had unipolar and major depression which has been ongoing. She has had relapses of depression in response to various stresses in 1993, 1994, and 1995, in the form of surgical operations and family stresses. She was however able to recover from depression and return to work but she has not been able to do since her accident of May 27, 1996 at work. Had she maintained her improvement which she was showing at the beginning of May [1996] her follow up visits could have been reduced and her discharge to the care of her family doctor could have been considered. Since May 1996 she has not recovered from depression and in my opinion this is because of physical health problems which have not remitted and have left chronic pain and dysfunction. Her health problems and the dysfunction caused by those have been an ongoing stress and it does not seem that this is going to go away. In view of this it is my opinion that she will continue to suffer from depression and will continue to need treatment. Her treatment of depression has been on a regular basis since her initial contact with me in Her depression is an ongoing illness that needs treatment for life. Her depression can get worse spontaneously or in response to stresses eg. physical, familial, financial, vocational or medical. [28] Dr. Sood, in his July 24, 2000 report (Exhibit #6) reviewed the worker s current treatment and concluded as follows: (v) The worker suffers from moderate to severe depression in spite of treatment. It is quite apparent that at long as she is not physically well and is unable to work she would not recover from her depression. It is my opinion that the combination of physical as well as emotional illness interferes with her ability to function at a job. I do not think that she could cope with any gainful employment at this time or in the near foreseeable future. Discussion and conclusions [29] The worker suffered a fairly minor work accident which, organically, should have healed within the normal healing times. Indeed, the REC report referred to earlier notes that there are no ongoing organic problems as of the date of that report that would explain the worker s ongoing symptomatology and pain complaints.

7 Page: 6 Decision No. 2042/00 [30] It is not disputed that the worker has an ongoing problem of mental illness, which manifests itself in a pain condition. But, is that condition truly caused, at least to a significant extent, by the work accident of May 1996? [31] Dr. Sood, in his June 17, 1999 report, notes that the worker has had ongoing depression since 1993, albeit from which she was previously able to recover. He also concludes, in his aforesaid report, however, that the worker s depression can get worse spontaneously or in response to stresses [emphasis added]. [32] At the time prior to the work accident, however, the worker was making progress and improving. The May 1996 work accident unfortunately triggered the worker s depression which had eased to a certain extent. I find the work accident worsened the condition. [33] That the worker has a thin skull there can be little doubt. As Dr. Sood noted, her depression could worsen spontaneously as well in response to particular stressers or triggers. But, even though the worker has a thin skull I do not conclude that she has a crumbling skull. [34] Prior to the May 1996 workplace accident the worker was able to function, albeit not perfectly. While she recalls that she attended work regularly except for her surgeries, in fact according to Dr. Sood she did miss some time. Despite missing some time, however, the worker was able to carry on in her employment, as well as was able to perform her household responsibilities. [35] The workplace accident, however, brought about a major change in that the worker could no longer do any of this. Clearly, the workplace accident was a significant contributing factor to the worker s aggravation or relapse into a serious depression, from which she has unfortunately yet to emerge. [36] To be clear, I do not believe that the workplace accident was the only factor involved in the worker s condition. I agree with Dr. Sood that there are other factors, including familial and financial, at play in this matter. But, of all the factors, the 1996 work accident was a significant contributing one. Thus, the worker is entitled to benefits as determined by the Board to recognize the contribution to her condition played by the work accident of May [37] Level, type and duration of benefits are remitted to the Board to determine, subject to the worker s appeal rights. Type of benefits is specifically left open for the Board to consider given Dr. Helwig s conclusion set out in Memo No. 60, that the worker may well have psychotraumatic entitlement on an aggravation basis.

8 Page: 7 Decision No. 2042/00 THE DECISION [38] The appeal is allowed. The worker is entitled to benefits to be determined by the Board, taking into account the above observations. The worker retains all her ordinary appeal rights. DATED: August 30, 2000 SIGNED: J. Josefo