WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 737/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 737/15 BEFORE: R. Nairn : Vice-Chair A. D. G. Purdy : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: April 15, 2015 at Toronto Oral DATE OF DECISION: July 20, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1632 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated June 4, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Mr. L. Dillon, Lawyer Did not participate Ms. H. Goel, Punjabi 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

2 Decision No. 737/15 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a setup foreman in the accident employer s manufacturing business. Born in 1964, the worker started with the employer in [2] On April 29, 2009, while working in tight quarters, the worker experienced an onset of pain in his low back. He sought medical attention and the Physician s First Report (Form 8) of May 13, 2009 provided a diagnosis of lumbar strain with sciatica. The WSIB (the Board ) recognized the worker's back injury as compensable and he received various periods of loss of earnings ( LOE ) benefits. In October 2010 the worker was granted a 21% Non-Economic Loss ( NEL ) award for his compensable low back condition diagnosed as lumbar strain with sciatica. [3] The worker was also in receipt of a 22% NEL award for a right hand injury which he had sustained on March 18, This compensable injury had resulted in the amputation of his right thumb. [4] In December 2009 the worker was referred to the Board s Regional Evaluation Center ( REC ) for assessment. In the report which followed that assessment, Dr. B. Malcolm (orthopaedic surgeon) indicated in part: [The worker] presents having had a lumbar strain with a mechanical back dominant pain pattern and a left lower extremity radiculopathy in the S1 distribution with possibly some L5 components. He has sensory loss in L5 and S1. ( ) [The worker s] presentation also contained a significant number of illness behaviours or non-organic signs as described by Dr. Gordon Waddell including positive axial compression and simulated rotation, cogwheel giving way and pain behaviours. His prognosis for timely resolution of complaint and return to function is guarded. His strain was superimposed on pre-existing age degenerative change and congenital spinal stenosis. Diagnosis Injury-Related: 1. Lumbar strain with mechanical back dominant pain pattern. 2. Left S1 and possible L5 radiculopathy. Non-Injury-Related: 3. Lumbar spondylosis and congenital spinal stenosis. Note: Only areas of assessment requested by the WSIB at the time of referral have been addressed in detail. Prognosis [The worker] is significantly pain limited and his prognosis for substantial resolution of complaint and functional improvement is considered guarded at best. Unless he can get a better handle on his pain management, he will not be able to physically rehabilitate.

3 Page: 2 Decision No. 737/15 Recommendations 1. Investigations/Consultations We recommend that [the worker s] family physician discuss with him the possibility of depression and appropriate intervention. 2. Treatment: Sending [the worker] to a facility for musculoskeletal care, given his current presentation and the overwhelming pain would be unsuccessful. The WSIB may consider referring [the worker] to the Functional Restoration Program or an equivalent multidisciplinary assessment for evaluation and determination as to additional pain management strategies which may then permit physical restoration. 3. Medical Restrictions Based on this evaluation, we would not impose any specific medical restrictions on [the worker]. 4. Work Restrictions Based on this evaluation and pending the outcome of any further interventions as discussed above, we recommend ongoing work restrictions or functional/tolerance limitations in prolonged standing, prolonged sitting, prolonged walking, repetitive bending and heavy lifting. [5] Subsequently, the worker was referred to the Board s Functional Restoration Program and in a report dated December 22, 2009, the evaluating team provided a diagnostic impression of 1. Pain disorder with both psychological factors and a general medical condition (chronic) and 2. Adjustment disorder with mixed anxious and depressed mood. [6] In his Comprehensive Psychiatric Assessment Report of March 18, 2010, Dr. J. Nathanson (psychiatrist) of the Functional Restoration Program provided an Axis I diagnosis of Pain Disorder associated with Psychological Factors and a General Medical Condition; Major Depressive Disorder with psychotic features. [7] In 2010 the worker was also referred to Dr. R. Kakar (psychiatrist) and in his report of February 4, 2010, Dr. Kakar provided an Axis I diagnosis of severe major depression psychotic with pseudo dementia; severe psychotraumatic stress disorder; chronic pain syndrome. The worker's GAF was described as 35/100. [8] In 2011 the Board considered the issue of the worker's entitlement for a psychotraumatic condition or Chronic Pain Disability ( CPD ). In Memo #91 of June 17, 2011, the Case Manager denied the worker's request and concluded: Dr. Kakar' s recent rpt of May 2/11 has now been reviewed. The FRP had recommended psychological tx to aid in a rtw. Dr. Kakar indicates worker has chronic pain and he suffers from PTSD. The chronic pain can be attributed to the pre- existing congenital and acquired severe spinal canal stenosis of which the a/e was awarded 90% SIEF. This appears to be worsening noting the medical on file. His constant pain is due to the pre-existing noted above. In relation to the PTSD, the accd. hst. was not traumatic and his depression can be linked to his severe pain and not to the accd. history. Worker has been awarded a 21% NEL for the organic injury in this claim. Worker also has a 22% NEL for the rt. hand/thumb under [a prior claim]

4 Page: 3 Decision No. 737/15 1. Will deny ent. to psyche/cpd as his ongoing pain is related to the low back injury sustained under this claim of which he has been awarded a NEL. 2. With the denial of psyche, worker is now considered partial with [permanent restrictions] based on the FRP rpt. of no heavy lifting, no prolonged or repetitive overhead work, no prolonged forward flexion, no pushing/ pulling and needs to alternate between sit/stand/walking. 3. A/e to be contacted to determine whether the perm. suitable work offered previously computer entry is still available. See rtw hold rpt May 20/10. [9] In a decision dated June 21, 2011, the Board Case Manager confirmed that the worker was not entitled to benefits for a psychotraumatic condition or for CPD. [10] On October 13, 2011, the parties met with a Board Return to Work Specialist to discuss the availability of permanent modified duties. In the memo which followed that meeting, the Return to Work Specialist noted that the employer s is able to offer office/computer work for the worker. The work is available on the first floor so the worker will not have to climb stairs to get to the office. The Return to Work Specialist also noted however, that the worker indicated that he cannot perform the permanent modified duties offered. [11] In a decision dated October 14, 2011, a Case Manager advised the worker that you informed the RTWS that you were not capable of returning to work due to pain. Therefore as suitable work is available at no wage loss, you are not entitled to any further LOE benefits effective October 17/11. [12] The worker objected to the denial of entitlement for a psychotraumatic condition/cpd and to the Board s decision to terminate his LOE benefits effective October 17, 2011, and these issues were eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated June 4, 2012, the ARO denied the worker's appeal and with respect to psychotraumatic entitlement concluded: I find the criterion for entitlement to psycho-traumatic disability has not been met as I am unable to establish the worker's non-organic symptoms and diagnosis of severe major depression psychotic with pseudo dementia and PTSD are directly and clearly the result of the workplace incident, accepted injuries or sequelae. [13] The ARO also denied the worker entitlement for CPD concluding that the criterion for CPD has not been established as the worker s symptoms of pain can be directly attributed to and are in keeping with the organic findings related to his low back injury in conjunction with his non-occupational degenerative conditions and prior right hand injury [14] The ARO also confirmed the denial of LOE benefits after October 17, 2011 being satisfied that there is no evidence to support the worker is totally disabled or unable to participate in WR activities and return to suitable work which is available at no wage loss. (ii) Issues on appeal [15] The issues to be determined in this case are: (a) whether the worker ought to be granted initial entitlement to benefits for a psychotraumatic condition which he claims can be causally related to the compensable accident of April 29, 2009 and

5 Page: 4 Decision No. 737/15 (b) (c) in the alternative, whether the worker ought to be granted entitlement to benefits for CPD and whether the worker is entitled to full LOE benefits beyond October 17, 2011 on the basis that he is competitively unemployable. (iii) The worker's testimony [16] In his testimony the worker confirmed that prior to his accident in 2009, he had never had any psychotraumatic symptoms or required psychiatric treatment. He confirmed that he had suffered the amputation of his right thumb in a workplace accident and was in receipt of a NEL award from the Board. He testified that he started with the accident employer in 1985 and quickly rose to the position of supervisor. He was on-call 24 hours a day in this position and had a role in supervising up to 400 employees. The worker also testified that following his right hand injury, he was able to return to work after about four months of lost time. [17] The worker testified that after his accident in 2009, he was eventually referred to a neurosurgeon, Dr. Schutz, who indicated that while a three level fusion in his lumbar spine was a possibility, he would not recommend this surgery because of the poor chances of success. [18] The worker testified that with the ongoing pain and the realization the condition could not be surgically corrected, he began to experience symptoms of anger and depression. He frequently fought with his wife and three children and after contemplating suicide on one occasion, his wife advised the family doctor that a referral to a psychiatrist ought to be considered. As a result, the family doctor referred the worker to Dr. Kakar. The worker continued to see Dr. Kakar on a regular basis since 2010 with the exception of a short time during which Dr. Kakar was unavailable and he was treated by another psychiatrist, Dr. Dhailwal. [19] The worker testified that part of Dr. Kakar s treatment involved providing him with medication to help him sleep. Even with the medication, the worker is fortunate to get two hours of sleep at night. He wakes up frequently during the night and then will lie on the couch or watch television to pass time. Since the accident, two of his children have moved out of the home because of their frustration with their father s anger. The worker testified that his wife has also left the home on occasion after their arguing. [20] The worker spends virtually all of his day inside the home. He is not able to perform any of the household chores as he once did. He has one friend who will come by and take him to the temple once a month. All of his other friends have stopped coming around to visit. He used to go to the temple every week but is now unable to sit on the floor. [21] The worker also continues to experience nightmares on a frequent basis and often wakes up screaming. Dr. Kakar has provided him with some medication to assist with these. He also takes up to four Tylenol No. 3 a day for pain. [22] The worker does not believe he is capable of performing any type of work. He has difficulty sitting for any length of time and his memory and concentration are poor. There has been no improvement in his condition since [23] The worker also confirmed information on file that he was involved in a motor vehicle accident in His vehicle was stopped at a red light and was struck by another vehicle which

6 Page: 5 Decision No. 737/15 was pushed into him. The worker was taken to hospital but released shortly thereafter. He did not sustain any significant injuries and there is no litigation arising out of the incident. He received about $500 for the damage to his car. (iv) Analysis [24] Since this accident occurred in 2009, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). (a) Psychotraumatic entitlement [25] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has advised the Tribunal that one of the policies that applies to this appeal is Operational Policy Manual ( OPM ) Document No entitled Psychotraumatic Disability. This policy provides in part: [26] Board OPM Document No 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 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.

7 Page: 6 Decision No. 737/15 [27] As the above-mentioned policy provides, psychotraumatic entitlement may be granted if it is established that the disability/impairment can be causally related to a work-related injury and that disability/impairment becomes manifest within five years of the injury or within five years of the last surgical procedure. [28] It is now settled in Tribunal case law that in dealing with matters of causation, the Tribunal employs a significant contributing factor test. In order to be successful, the worker must establish that the compensable accident and its sequalae made a significant contribution to the onset of the psychotraumatic condition. It is not necessary to establish that the workplace accident was the only contributing factor and entitlement may be granted even in situations where there are a number of significant contributing factors as long as the workplace accident also contributed significantly. [29] Having had the opportunity to consider all of the evidence before us, including the worker's testimony, the Panel finds, on a balance of probabilities, that the April 2009 compensable accident did make a significant contribution to the worker's psychotraumatic condition and as such, he is entitled to be compensated. In reaching that conclusion, we have taken particular note of the following: There is no evidence of significance to contradict the worker's testimony to the effect that prior to the accident in 2009, he had never had any problems of a psychotraumatic nature. This conclusion is consistent with the comments from Dr. Kakar in his initial February 4, 2010, report to the effect that he has never seen a psychiatrist before. He is always under the care of his family doctor. He has always been emotionally stable prior to this accident ( ) he has never been treated for a psychiatric illness. He has never been hospitalized for psychiatric problems. In his report of December 8, 2009, Dr. Malcolm of the Regional Evaluation Center had indicated that we recommend that [the worker s] family physician discuss with him the possibility of depression and appropriate intervention. As suggested by Dr. Malcolm, the worker was referred to the Functional Restoration Program and in a report dated March 18, 2010, Dr. Nathanson provided an Axis I diagnosis of Pain Disorder associated with Psychological Factors and a General Medical Condition; Major Depressive Disorder with psychotic features. In a report dated February 4, 2010, Dr. Kakar provided an Axis I diagnosis of severe major depression psychotic with pseudo dementia; severe psychotraumatic stress disorder; chronic pain syndrome. Dr. Kakar provided a GAF of 35/100 and advised after his initial consultation it appears he is suffering from the physical and emotional effects of his workplace injury. In a report dated May 2, 2011, Dr. Kakar provided Axis I diagnoses of severe major depression psychotic with pseudo dementia; severe psychotraumatic stress disorder; chronic pain syndrome. The GAF was 40/100. In his report of August 31, 2011, Dr. Kakar provided similar Axis I diagnoses and a GAF of 40/100 and indicated:

8 Page: 7 Decision No. 737/15 [The worker] has sustained serious and permanent injuries as a direct result of his injuries. The lower back injury is work-related. Prior to the injury, there were no psychological symptoms and he was able to function well. He will require medical treatment for his injuries sustained in the accident in the future. This will help him to cope with his pain and make adjustment to his lifestyle. ( ) A depressive disorder is not the same as a passing blue mood. It is not a sign of personal weakness or a condition that can be willed or wished away. People with a depressive illness cannot merely pull themselves together and get better. Without treatment, symptoms can last for weeks, months or years. Appropriate treatment, however, can help most people who suffer from depression. In a report dated November 25, 2014, Dr. J. Dhaliwal provided an Axis I diagnosis of history of pain caused by the accident, psychotic symptom, hallucination, paranoia, depression major and psychotraumatic stress disorder. Dr. Dhaliwal also noted: The patient said he had injury at work, dates back to He climbed a big tank size of a room, few feet different between roof and tank and he came down after doing a job. He felt as if current went through his body. He has a burning sensation in his back, sat down, rested, and pushed himself behind the wall, got up and he developed injury which are documented by his reports. He said he recalled the accident. He gets the memories. He gets the flashbacks. His life is changed. His life is ruined. He feels no good hope for him. He has become disabled. He cannot help his family. He cannot go out. He was a social person. He is not social anymore. He cannot sit and participate in activities. His back hurts even sitting in my office on the chair. He found very uncomfortable. He could not sit for a few minutes or period of time because of constant pain in the back. He is having flashbacks and memories. He is feeling depressed and sad. He also started hearing voices ( ) In a report dated February 20, 2015, Dr. Kakar provided an Axis I diagnosis of severe major depression; chronic pain syndrome. The GAF was 45/100. Dr. Kakar added: He has been suffering from the physical and emotional effects of his lower back workplace injury in August The response to his treatment has been poor. His mental status remains unchanged and the prognosis for recovery is poor. He continues to require ongoing monitoring for his condition which I feel is severe as it is not improved and has greatly affected his level of functioning and ability to work on a long-term basis. No alternate theory of causation (other than the compensable accident) has been provided to explain the onset of depressive symptoms documented by Dr. Malcolm, Dr. Nathanson, Dr. Dhaliwal and Dr. Kakar. The Board s decision to deny psychotraumatic entitlement does not appear to have been based upon an internal medical opinion. [30] In light of the evidence noted above, we find that the compensable accident in 2009 made a significant contribution to the symptoms of depression first diagnosed by Dr. Kakar in Taking into account the worker's testimony and the continuing reports provided by Dr. Kakar, it is apparent that this condition is permanent and the worker is entitled to be assessed for a NEL award.

9 Page: 8 Decision No. 737/15 [31] Having granted the worker entitlement for his psychotraumatic condition, it is unnecessary for us to deal with the worker's alternate position that he ought to be granted entitlement for CPD. (b) LOE benefits beyond October 17, 2011 [32] Section 43(1) of the WSIA provides: Payments for loss of earnings 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. [33] At the time the Board denied the worker entitlement to LOE benefits beyond October 17, 2011, his only entitlement in this claim was his low back condition recognized by the 21% NEL award. As noted above however, we have now granted the worker entitlement to a NEL assessment for a psychotraumatic condition and after considering all of the worker's personal and vocational characteristics, we find, on a balance of probabilities, that as of October 17, 2011, he ought to have been considered essentially incapable of employment or earning any income from suitably modified duties. In reaching that conclusion, we have taken particular note of the following: The worker has a 22% NEL award to reflect an injury/thumb amputation to his right dominant hand. The worker has a 21% NEL award reflecting a permanent low back impairment under this claim. This injury has left the worker with significant restrictions including prolonged standing, prolonged sitting, prolonged walking and repetitive bending and lifting. In addition to his ongoing low back pain (which Dr. Schutz has suggested not be the subject of surgery) the worker now also has a compensable psychotraumatic condition i.e. depression. The worker's treating psychiatrists have commented upon the effects which this psychotraumatic condition has had on his ability to maintain employment. For example: o In his report of May 2, 2011, Dr. Kakar noted: His depression signs and symptoms are having serious impact on his ability to work and potential for workplace productivity. ( ) it is unlikely that he will ever return to his pre-accident state psychologically. His cognitive function is affected by both the depression and chronic pain. In his report of August 31, 2011, Dr. Kakar noted that the worker's future employment opportunities and competitiveness in the job market have been adversely affected as a result of the accident. He will definitely be less marketable as a future employee.

10 Page: 9 Decision No. 737/15 o In his report of November 25, 2014, Dr. Dhaliwal advised that the patient is unable to work due to severe impairment of his functional capacity caused by the illness or pain and PTSD and major depressive disorder. o In his report of February 20, 2015, Dr. Kakar concluded: He is suffering from a severe and prolonged psychiatric condition of major depression for which he is incapable of regularly pursuing any substantial gainful occupation for which he is qualified considering his age and vocational profile. The worker has few transferrable skills, having spent almost all of his working life in this country with the accident employer. The April 9, 2010, Discharge Summary from the Board s Functional Restoration Program concluded that without taking into account the worker's psychotraumatic condition, he could work, at best, at a sedentary level. According to Dr. Kakar s report of February 4, 2010, the worker has a Grade 10 education. [34] For the reasons noted above, the Panel finds that as of October 17, 2011, the worker ought to have been considered incapable of employment and of earning any income from suitably modified duties. In our view, the loss of earnings which he experienced after October 17, 2011, resulted from the combined effects of his compensable injuries and therefore he is entitled to LOE benefits pursuant to section 43 of the WSIA until age 65.

11 Page: 10 Decision No. 737/15 DISPOSITION [35] The worker's appeal is allowed. [36] The worker is granted initial entitlement to benefits for a psychotraumatic condition i.e. depression. The Board will assess him for a NEL award. [37] The worker is entitled to full LOE benefits from October 17, 2011 to age 65. DATED: July 20, 2015 SIGNED: R. Nairn, A. D. G. Purdy, J. A. Crocker