WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1576/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1576/10 BEFORE: T. Carroll : Vice-Chair HEARING: August 9, 2010, at Kitchener Oral DATE OF DECISION: August 31, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1962 DECISION(S) UNDER APPEAL: WSIB ARO decision dated March 16, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Mr. M. S. Grossman, Lawyer Did not participate Not applicable 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. 1576/10 REASONS (i) Issues [1] The Vice-Chair has to determine whether the worker s quantum of Non-economic Loss (NEL) award for her psychotraumatic disability, currently at 10%, is correct. (ii) Background [2] On July 10, 1998, the worker, who had previous back surgery, reported low back, neck and shoulder pain due to her job duties. The claim was accepted with a diagnosis of lumbar strain. [3] The worker was not able to return to her former employment, as a Human Resources Assistant, due to chronic pain that resulted from her injuries. [4] In July 2002, the worker had a NEL assessment with an accepted medical diagnosis of chronic post-laminectomy lumbar pain. The worker received a 19% permanent impairment award. [5] In August 2002, the worker began receiving assistance under the Workplace Safety and Insurance Board s (WSIB s) Labour Market Re-Entry (LMR) program. After a psychovocational assessment, the selected Suitable Employment or Business (SEB) for the worker was as an employment counsellor. In February 2003, the worker began a Job Search Skills Program. The worker passed the course and LMR assistance ended the following month. [6] After a series of appeals, a Tribunal Vice-Chair (March 2007) determined that the worker was able to work 11.5 hours per week earning $10 per hour. The Vice-Chair also determined that the worker was entitled to benefits for a psychotraumatic disability. The WSIB was to determine the nature and degree of benefits. [7] In January 2008, the worker had a NEL assessment for her psychotraumatic disability and was examined by Dr. L. Gerome, a psychiatrist. Dr. Gerome determined that the worker had a Class 2 mild psychotraumatic impairment. In March 2008, a WSIB NEL Clinical Specialist rated the worker at a 10% permanent impairment. This award increased the worker s previous 19% permanent impairment award for her low back to a whole-person award of 27%. (iii) Psychological assessments [8] In August 2004, Dr. D. Boyd, a psychiatrist, who treated the worker, provided a DSM-IV diagnosis. Under Axis I, he stated: depression, secondary to a medical disorder. Under Axis III he stated: Musculoskeletal chronic pain. Under Axis IV: psychosocial problems with living with her parents, losing self-esteem, not being able to work and not having money. [9] In September 2005, Dr. E. Piccolo, a WSIB psychologist, reviewed the file and stated that he did not believe the worker had a significant psychiatric disorder related to her work injury.

3 Page: 2 Decision No. 1576/10 [10] The worker was examined on two occasions (March/May 2005) by Dr. C. Pierce, a psychologist. Dr. Pierce noted that the worker had repaired her family difficulties. He opined that the worker s symptoms were consistent with the WSIB s criteria for moderate impairment of the total person Category 2. The doctor felt the worker s GAF was 45 (serious symptoms/impairment in social, occupational or school function). However, Dr. Pierce also felt, as the worker had no apparent psychological trauma, her symptoms seemed to fit better with a diagnosis of chronic pain disability. [11] In July 2007, the worker s file was reviewed by Dr. I. Smith, Consultant Psychologist with the WSIB. He concluded there was evidence of a permanent psychiatric impairment in the moderate range. He felt the worker s depressive symptoms resulted in partial disability with no specific psychological restrictions. [12] As noted earlier, in January 2008, Dr. L. Gerome, a psychiatrist, examined the worker and stated that the worker had a mild psychotraumatic impairment in four WSIB policy categories that include: Activities of Daily Living; Social Functioning; Concentration, Persistence and Pace; and Adaptation. Under the heading; Mental Status, Dr. Gerome felt the worker showed no evidence of significant emotional stress or depression. [13] In his summary, Dr. Gerome states that the worker was suffering from Chronic Pain Disorder with an adjustment relative to lifestyle changes. The worker s overall impairment Summary score was Class 2 mild impairment. The doctor felt the worker was adapting well and may return to an alternate form of occupation in the future (i.e., social worker). (iv) The Vice-Chair s analysis [14] The WSIB s Operational Policy Manual, Document No , speaks to Assessing Permanent Impairment due to Mental and Behavioural Disorders. [15] The psychologist assessments, as previously outlined, placed the worker s impairment in Class 2, mild impairment or Class 3, moderate impairment. The WSIB s policy allows an impairment rating of 5% to 15% in Class 2, and an impairment rating of 20% to 45% in Class 3. [16] In considering all the evidence, the Vice-Chair finds that the worker s impairment is in Class 2, mild impairment. [17] In reaching this conclusion, the Vice-Chair put significant weight on the opinion of Dr. Gerome, outlined earlier, who assessed the worker s condition under the four categories required in the WSIB s psychotraumatic policy. Dr. Gerome found the worker s impairment to be mild in all four categories. [18] In considering the other psychologists opinions, the Vice-Chair notes that Dr. Pierce determined that the worker s primary problem is chronic pain. This was his DSM-IV, Axis I, diagnosis. Dr. Smith (July 2007) did not examine the worker. He felt the worker had a moderate permanent psychiatric impairment based, to a significant degree, on the low GAF score (i.e., 45) provided by Dr. Pierce. Dr. Smith did not believe there would be significant improvement in the worker s psychological condition.

4 Page: 3 Decision No. 1576/10 [19] It is evident that Dr. Pierce and Dr. Smith were not aware that the worker was employed at the time they had made their assessments. It is also evident that the worker s psychological condition, and related functional abilities, did improve after she was examined by Dr. Pierce in [20] The worker was able to work (10 to 15 hours a week) from November 2003 to 2007 as a customer service representative at a shopping mall. Some of the worker's duties included answering telephone calls for administration and mall information, providing dispatch for maintenance, cleaners and security, and being a liaison with mall tenants. [21] The worker testified that, after discontinuing her work as a customer service representative in 2007, she enrolled in a part-time program (three hours of classes per week) at a University to obtain a degree in social work. The worker stated that she expects to obtain a degree in social work in She hopes to obtain work in this field, on a part-time basis, after graduation. The worker also testified that, from 2005 to 2007, she instructed troubled teenagers (two hours per week) prior to them starting school. Since the fall of 2009, the worker has been teaching ESL classes (five hours per week) during the school year. [22] In addition, the Vice-Chair finds that many of the stressors affecting the worker, as outlined by Drs. Boyd and Pierce, have been alleviated or eliminated. The worker has been able to purchase a condominium (2004), owns and drives an automobile, has resolved difficulties with her family and now receives approximately $2,400 per month from the WSIB and through the Canada Pension Plan Disability plan. [23] From a psychological point of view, the Vice-Chair concludes, from the facts as noted above, that the worker has adapted well since The worker s present GAF is considerably above 45. The worker s psychological impairment is in the mild range Class 2, as opined by Dr. Gerome. [24] In reaching the conclusion that the worker has a mild impairment, the Vice-Chair also finds that the worker s impairment is at the high end of Class 2. As noted, the worker is only able to work, attend school and instruct to a maximum of 15 hours per week due to her physical and psychological condition (emotional distress under ordinary stress). The worker testified that she takes longer to complete her academic lessons and activities of daily living than she did in the past due to a lack of concentration and fatigue. She has not established a social network or a relationship with a person of the opposite sex due to her physical/psychological difficulties. [25] The worker testified that she is not presently being treated by a psychiatrist or taking antidepressant medication. However, she does receive monthly counselling in regard to some of the difficulties that have arisen from her accident including a continued lack of self-esteem. [26] The Vice-Chair ultimately concludes that the worker is entitled to have her psychotraumatic disability rating increased to 15% based on the applicable WSIB policy criteria contained in Policy No

5 Page: 4 Decision No. 1576/10 DISPOSITION [27] The worker s appeal is allowed. [28] The worker s award for her psychotraumatic impairment is to be increased from 10% to 15%. DATED: August 31, 2010 SIGNED: T. Carroll