SUMMARY DECISION NO. 1505/00. Chronic pain. DECIDED BY: Marafioti DATE: 21/03/2001 NUMBER OF PAGES: 6 pages ACT: WCA

Transcription

1 SUMMARY DECISION NO. 1505/00 Chronic pain. DECIDED BY: Marafioti DATE: 21/03/2001 NUMBER OF PAGES: 6 pages ACT: WCA

2 2001 ONWSIAT 869 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1505/00 [1] This appeal was heard on December 19, 2000, by Tribunal Vice-Chair V. Marafioti. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Acting Appeals Resolution Officer, K. Gowans, dated May 6, That decision confirmed the worker s 28% Non-Economic Loss (NEL) and the Future Economic Loss (FEL) awarded at the D1, R1 and R2 stages. [3] The Acting Appeals Resolution Officer denied entitlement to supplementary benefits subsequent to April 1, 1994, and entitlement to further vocational rehabilitation services. [4] Entitlement was also denied for psychiatric disability, as well as chronic pain disability. [5] In addition, entitlement was denied for other areas of injury, including numbness, generalized musculoskeletal pain, neck pain, dizziness or tingling in the left arm. [6] The worker attended and was represented by N. Kapelos, barrister and solicitor. The employer did not participate. Yannis Paravalos assisted by interpreting in the Greek language. THE RECORD [7] I heard oral testimony under oath from the worker and considered the following documents: Exhibit #1: Case Record; Exhibit #2: Hearing ready letter; Exhibit #3: Medical updates; Exhibit #4: Report from Dr. A.A. Mewa, dated July 25, [8] The representative made submissions. THE ISSUES [9] The worker requests entitlement under the Chronic Pain disability criteria, or in the alternative, a higher NEL and entitlement to a psychological disability. THE REASONS (i) Background [10] The worker, a self-employed cleaner, slipped and fell on February 5, He was diagnosed with a disc herniation and underwent surgery in October of He received a 28% Non-Economic Loss benefit for the permanent impairment in his low back. The worker s representative objected to the quantum as he considered the worker totally impaired.

3 Page: 2 Decision No. 1505/00 [11] The worker received a Future Economic Loss benefits from August 1, Future Economic Loss redeterminations were carried out effective August 1, 1993, and August 1, The FEL calculations were based on a vocational objective of envelope stuffer and light assembler, as the worker was considered capable of performing light duty jobs with general low back restrictions. The worker objected to the FEL, stating that he was unable to work and requested a 100% FEL. [12] Vocational rehabilitation services were closed in February 1994, as the worker presented himself as totally impaired and unable to work. Supplementary benefits were closed April 1, 1994, as the worker was no longer involved in a Board approved vocational rehabilitation program. [13] The worker requested chronic pain disability on the basis that his complaints were not consistent with the organic findings. [14] The Claim Adjudicator also denied entitlement for psychological impairment, as it did not appear there was evidence of a psychological condition as a result of this injury. [15] The Appeals Officer denied the worker s objection confirming the 28% NEL, and the FEL award. The Appeals Officer denied supplementary benefits subsequent to April 1, 1994, and further vocational rehabilitation services. Entitlement was denied for psychiatric disability, as well as chronic pain disability, and other areas including numbness, generalized musculoskeletal pain, neck pain and tingling in the left arm. (ii) The law and Board policy [16] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries, which occurred before January 1, All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [17] An important change relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. [18] The Legal Services Division of the Board confirmed that policy packages (revision #4) 30; #31; #61; #64; #65; #71 and #77, would apply to the subject matter of this appeal. The policies are extensive and will not be duplicated here, as it would not be practical to do so. The packages are identified as follows: Package #30: Benefit of Doubt #31: New Disability Related to the Original Accident/Secondary Conditions #61: Increase in NEL Quantum #64: NEL Award for Psychotraumatic/CPD (Accidents from January 2, 1990) to December 21, 1997 Inclusive) #65: Initial NEL Entitlement (Prior to January1, 1998) #71: FEL at R1/R2 #77 General s. 43(9) Supplement

4 Page: 3 Decision No. 1505/00 [19] In arriving at my decision, I considered fully the relevant policies and legislation. (iii) Vice-Chair s findings and conclusions [20] I am satisfied that the worker suffers from chronic pain disability. In my view, the evidence indicates that the chronic pain disability developed gradually over time. In particular, I note the psychiatric reporting from the psychiatrists who examined the worker, including Dr. Ticoll, who provides a causal connection to the work related injury. A review of the medical evidence persuaded me in particular to arrive at my conclusions. [21] Dr. C.M. Godfrey reported as follows on May 13, 1999: I could not convince myself there was a significant organic lesion here, aside from that which had been noted previously. However, the man was in acute distress and I felt he would benefit possibly from some pain counselling. [22] Dr. J. Vavougios reported on June 9, 1999, as follows: The patient s complaints include severe headaches, pain in the neck, pain in the back, personality change and depression. He suffers from degenerative disc disease in the lumbar spine Examination reveals a depressed effect. He has a moderate restriction in range of motion in the lumbar spine. He requires his wife s assistance when dressing and putting on his shoes. He has a slight to moderate limitation in range of motion in the cervical spine. His family states that he has had quite a personality change. He has transformed from an easy going and happy person to an irritable, lethargic and unmotivated individual. He is constantly complaining of headaches and pain all over the body. In summary, [the worker] has developed a chronic pain syndrome in his cervical and lumbar spine. He also has severe headaches, personality change and depression. He has not improved at all over the past few years. I anticipate that he will continue to remain permanently and totally disabled. [23] Dr. A.A. Mewa, a rheumatologist, reported on June 2, 1999, as follows: This gentleman continues to have chronic mechanical neck and back pain, with generalized aches and pains. He requires Tylenol #3 for pain control. He has had secondary depression, for which he was previously on Prozac. There is no change in his status, he continues to be very symptomatic, he cannot do any major exercise program. He is unable to do certain activities of daily living and therefore cannot really work given his educational background and work background. He is disabled by the chronic pain syndrome that he is going through. The treatment will simply be symptomatic again encouragement for exercises, but as far as return to gainful employment is concerned, he is unlikely ever to be able to do so. [24] Dr. Mewa reported again on July 25, 2000, as follows: He presents with generalized aches and pains. He tells me that his disability pension was approved and clearly, he is in no condition to do any gainful employment of any type, as he continues to have chronic pain related to his neck and back, and I think, symptomatic treatment is all that is needed. [25] Dr. B. Ticoll, a consultant psychiatrist, reported on April 2, 1998: [The worker] has been unwell since he suffered an accident at work in February Since that time, he has developed low back, cervical and left extremity pain, as well as

5 Page: 4 Decision No. 1505/00 headaches and numbness in several parts of his body. He has developed a range of emotional symptoms. The diagnosis under DSM-IV that apply to the patient are: Major depressive disorder, associated with both psychological factors and a general medical condition, code Both the chronic pain and the ensuing depression, have their origin in the work accident. [The worker] was treated with a discotomy, but this surgery did not result in lasting improvement. Following the failed surgery, pain generalized, with a significant loss of functioning, and an ensuing depression. The depression was largely responsive to the loss of functioning and the decline in self esteem experienced by [the worker], as a result. Depressive symptoms were exacerbated as marital and family problems developed He continues to have pain that resembles that of the original work related injury. His chronic pain had its origin in the work-related illness and has been present continuously since the onset of the illness Current pain is inconsistent with organic findings. This inconsistency is noted above in Dr. Mewa s statement that there are no focal neurological signs and in Dr. Godfrey s comments about the lack of EMG findings in regard to cervical pain and numbness in the upper extremities. [The worker s] pain condition meets the criteria of the Workers Compensation Board for a chronic pain disorder. He is also suffering from a major depression disorder that began as a response to the injury and has continued until the present time. He has had significant disability as a result of his work injury, unable to return to work, and with significant impairment in all activities of daily living. [26] The worker was seen by Dr. H. Rosenblat for a psychiatric consultation who reported on April 3, 1995, as follows: Diagnostically, this man is suffering from a chronic pain disorder, with associated psychological factors and a medical condition. Secondary to his pain, he has depression as well as marital discord. His injury is the clear cause of his current chronic pain disorder. I feel that the accident that occurred in 1993 plays virtually no role in his current disability. This man has suffered significant changes in his ability to function occupationally, socially and recreationally, as a direct result of this injury. Pronostically, it is unlikely that this man s pain will improve after this long period of time without improvement As a consequence, I do not believe that this depression or marital discord will improve either. [27] Dr. J. Vavougios reported on October 18, 1995, as follows: This gentleman has developed a chronic pain syndrome in the lumbar spine as a result of the prolapsed disc and the effects of unsuccessful surgery. As a result of this chronic pain, he is unable to sit for a prolonged period of time or stand for a prolonged period of time, doing any bending and twisting motion. He was attempted at re-education to do a sedentary job; however, due to his chronic back pain, he was unable to pursue this successfully. As well, he has developed a chronic depression and is very irritable and at times aggressive with his friends and family. He has lost interest in social activities, has difficulty sleeping and is unable to deal with stressful situations. In summary, due to his chronic pain and leg pain, and his secondary depression [the worker] is totally and permanently disabled

6 Page: 5 Decision No. 1505/00 [28] Dr. A.A. Mewa reported on October 7, 1994, as follows: Clearly this gentleman has entered a chronic pain syndrome pattern. I don t think any orthopaedic surgical intervention is required. I think, symptomatic and supportive treatment should suffice [29] Dr. C.M. Godfrey reported on March 12, 1986, that physiotherapy had not been effective with the worker s complaints. [30] In summary, I am satisfied on my review of the evidence, that the worker meets the criteria for entitlement to Chronic Pain Disability. The worker s complaints of pain are not consistent with the organic findings. I also note that the worker did qualify for Canada Pension Plan and in my view the worker will not return to work. In my view, the evidence indicates that the worker is unemployable. The worker s FEL is to be redetermined on the basis of this worker s significant functional impairment. [31] In my view, the worker s complaints will be captured under the Chronic Pain Disability policy. THE DECISION [32] The worker s appeal is allowed. He is to be assessed for a NEL under the Chronic Pain Disability policy and a FEL redetermination. DATED: March 21, SIGNED: V. Marafioti.