WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 631/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 631/10 BEFORE: E.J. Smith: Vice-Chair HEARING: April 16, 2010, at Toronto Written DATE OF DECISION: April 27, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1000 DECISION(S) UNDER APPEAL: ARO decision dated August 20, 2008 APPEARANCES: For the employer: For the worker: Interpreter: Mr. R. Lusk, Office of the Employer Adviser (OEA) Not participating 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. 631/10 REASONS (i) The issue [1] The employer requests an increase in the level of relief granted from the Board s Second Injury and Enhancement Fund (SIEF). It has been granted 50% relief. It submits that the worker had major underlying pre-existing psychological as well as physical conditions and that the recovery period resulting from the compensable accident became prolonged or enhanced because of them. It submits that the severity of the accident was minor. [2] I have awarded 90% SIEF relief for the reasons set out below. (ii) Background: the evidence [3] The worker was injured on September 14, 2006, at about age 47, when he slipped on an oily floor. The worker s Form 6 (worker s report of accident) states: Slipped on oily floor. The Form 8 (doctor s first report of injury) dated September 25, 2006 states: Slipped on oil at work and went down on buttocks but back hurting. [4] The worker was referred for a non-economic loss assessment in 2008, but the results are not included in the file material sent to me. The Board accepted that there was a moderate preexisting condition based on radiographic investigations, for SIEF purposes. [5] The Board has accepted that the worker was competitively unemployable, at least to the date of the ARO decision in issue. There is also the following information about the worker s life history and about his possible psychological vulnerabilities at the time of the accident. (a) The Board s assessment of the evidence about pre-existing psychological vulnerabilities [6] A report of the Board s consulting psychologist, Dr. Levy, dated September 28, 2007, states: This is a file review of [the worker s] file in order to provide an opinion on the possibility of pre-existing for depression/anxiety that may be delaying recovery in this claim, ability to return to work with accommodations or participate in LMR, is this psych condition likely to be temporary or permanent. [7] She notes that she has reviewed the file, although the initial assessment report of Dr. Corbin, the worker s treating psychologist, is missing. She notes that Dr. Corbin has diagnosed a major depressive disorder and possibly an adjustment disorder resulting from the back injury. Dr. Corbin describes that the worker s mother had committed suicide. There was non-compliance with taking anti-depressant medication, to the worker s detriment. Dr. Corbin felt that LMR needed to be deferred until the worker s depression hopefully lifts again. While Dr. Levy states that she sees nothing in any of Dr. Corbin s specific recommendations that documents any specific impairment(s) that would prevent the worker from beginning LMR, provided the process was made suitable for his needs, the worker did not attend vocational rehabilitation. From the file, the Board was proposing literacy training as the first step in the LMR program. However, from the file, the worker did not return to the literacy training that was

3 Page: 2 Decision No. 631/10 proposed in the time period prior to the ARO decision, and the Board accepted that he was competitively unemployable. [8] Dr. Levy continues: Unfortunately, not only does [the worker s] illiteracy result in significant challenges in his LMR, it also significantly compromises his likelihood of benefitting from psychotherapy to alleviate his depressive and anxious symptoms. [9] However, she states that she can see no pre-existing psychological or psychiatric condition that is delaying his recovery. (b) The other medical reporting [10] In a report of Dr. John Clifford, a specialist in rehabilitative medicine, dated February 13, 2008, the worker s social history is described as: He reported being in foster homes as a child and not having formal education. He reported being illiterate. [11] In a report dated January 27, 2007of Dr. Corbin, the worker s treating psychologist, the worker provided a history that he never attended school, and believed he did not even finish grade 1. He provided a history that he went to work in a pulp mill at eight years old and spent a good chunk of his childhood as a street kid (living on the streets for four to five days at a time) as well as in a foster home. There is a history that he spent time in jail in other reports, and Dr. Corbin reports that he had previously seen a counsellor at the Windsor probation and parole office. [12] In a report dated May 22, 2007, Dr. Corbin reports that the worker has some serious trust issues, resulting from a difficult childhood. Factors listed are his belief that his mother committed suicide by overdosing on her psychotropic medication. This made the worker reluctant to try medication, although he agreed to try it. [13] In a report dated September 14, 2007, Dr. Corbin states that prior to the workplace accident the worker never had to face directly the implications of being illiterate, always being able to make due, and to feel good about himself, with what he could do - that is, work hard at physical tasks. [14] In a report dated October 9, 2007, Dr. Cobin states that the worker is having a hard time feeling embarrassed about his lack of education as well as feeling anxious meeting with new people given his social phobia. [15] This history is also found in the assessment of Dr. Brenda Tomini, psychologist, dated July 19, She states that the worker reported that he did not complete any grades in his education. He alluded to a challenging upbringing that included living on the streets, having difficulties with criminal offences, frequent conflicts when he tried to attend school, and living with foster parents who did not require him to attend classes. He dropped out completely in Grade 6, and went to work in a pulp mill with his foster father. [16] She notes anger management problems as well as frustration with the testing process.

4 Page: 3 Decision No. 631/10 [17] The testing indicated low academic results, and the assessor also queried a learning disability, although this was never confirmed. The report also states that, in addition, his very high Neuroticism score suggested that he was likely to experience such feelings as anxiety, anger, guilt and depression. It states: Neuroticism is highly linked to emotional regulation, motivation and interpersonal skills (Cavanough & Blanchard-Fields, 2006.) Additionally, his very low score on Agreeableness suggests that he may have difficulties getting along with others. These personality characteristics may affect his success on his LMR plan. [18] This report describes an extensive history of criminal charges and that the worker spent approximately ten years in jail, starting at age 16 and ending at about age 40. His offenses included two assault charges, assault of a police officer, driving under the influence, driving while suspended, and break/enter theft. The worker is reported as not able to obtain a driver s licence and not to be bondable. [19] In the report of the worker s family doctor, dated September 25, 2006, Dr. Albrecht states: This [patient] is at HIGH RISK for chronic pain (emphasis in the original). (iii) Submissions [20] Mr. Lusk submits that the evidence suggests that the worker had a pre-existing psychological vulnerability. He refers to the statement of the family doctor that the worker was at high risk for chronic pain, The family doctor gave this opinion shortly after the accident and emphasized his opinion by using capital letters in his report. He asks that I schedule an oral hearing, so that the worker s pre-existing psychological vulnerabilities can be explored with the worker in oral testimony. [21] Mr. Lusk has also made submissions that the radiographic findings about the pre-existing low back degeneration are more extensive than suggested by the Board. (iv) Relevant law and policy (a) SIEF [22] Pursuant to subsection 126(1) of the Workplace Safety and Insurance Act (the WSIA), if there is an applicable Board policy with respect to the subject-matter of an appeal, the Tribunal shall apply it when making its decision. [23] In this case, the Board notified the Tribunal that Board Operational Policy Manual (OPM) Document No , entitled Second Injury and Enhancement Fund, applies. This policy defines pre-accident disability as a condition which has produced periods of disability in the past requiring treatment and disrupting employment and pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident. The policy states that both physical and psychological disabilities are included. The policy also provides a table of relief applicable when there is a pre-existing condition or disability that has enhanced or prolonged recovery, as follows:

5 Page: 4 Decision No. 631/10 Medical Significance of Severity of Accident 2 Percentage of Cost Pre-existing Condition 1 Transfer 3 Minor Moderate Major Minor Moderate Major Minor Moderate Major Minor Moderate Major 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% [24] The notes that accompany this chart state: Notes 1) The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. [emphasis added] 2) The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components Mechanics (lift, push, pull, fall blow, etc.) Position (kneeling, standing, sitting, squatting, bending, etc.) Environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident Minor: expected to cause non-disabling and minor disabling Injury Moderate: expected to cause disabling injury Major: expected to cause serious disability probable Permanent disability 3) The percentage of the total cost of the claim transferred to the SIEF.

6 Page: 5 Decision No. 631/10 (b) SIEF: the case law [25] Decision 419/89 addresses how evidence of pre-existing psychological vulnerabilities may be addressed for SIEF purposes. The head-note of the Decision states: Board policy on SIEF provides that for psychological conditions the possibility of prior psychic trauma from life experience could be considered as evidence of vulnerability, even in the absence of pre-existing psychological impairment. The Board policy on SIEF is based on equity and employment considerations. When psychological problems are involved, the evidentiary problems increase, since it may not be possible to make a finding of predisposition to development of a psychiatric disorder based on objective documentation. However, the Board may recommend SIEF relief if there is some evidence to support a predisposition to development of a psychological disorder. This evidence can be gleaned from the length of the legitimate recovery period viewed in conjunction with the nature of the accident and the resulting injury. The Board policy appears to provide a lower threshold for SIEF relief in cases involving non-organic conditions and, thereby, removes any inequity that would result from the evidentiary problems. [26] Decision No. 1811/01 adopts similar reasoning. I agree with the reasoning of Decision No. 431/89. (v) Conclusions (a) Conclusions: the need for an oral hearing [27] Mr. Lusk requests an oral hearing, on the basis that it is necessary for him to question the worker, in order to establish his claim that there was a pre-existing psychological vulnerability. I have some sympathy for this request. It may be difficult in some cases for an employer to establish entitlement to SIEF for pre-existing psychological symptoms in the absence of the type of evidence that may be forthcoming in an oral process. In this case, in my view, there is also other information that might have been helpful: Dr. Corbin s intake assessment report is not on file, and Dr. Albrecht has not been asked to explain why he thought that the worker was at high risk for chronic pain. The Board has not obtained the intake assessment report or Dr. Albrecht s clinical notes or the records of the Windsor psychological treatment. [28] However, in this case, I have determined that an oral process is not necessary and also that it is not necessary for me to conduct post-hearing investigations. I am satisfied that there is sufficient evidence on file to support Mr. Lusk s position that there was a pre-existing psychological vulnerability and that the pre-existing conditions, taken together, were major. (b) Conclusions: SIEF [29] Based on a review of Mr. Lusk s submissions about the radiographic evidence, I am satisfied that the organic pre-existing condition was at least at the high end of the moderate category, if not a major pre-existing condition in itself. Even assuming moderate organic preexisting back factors, taking those factors together with the evidence of psychological factors, I find that the evidence supports the finding that there was a major pre-existing condition.

7 Page: 6 Decision No. 631/10 [30] I note first the evidence that the worker had a difficult childhood and early adult history, including the fact that the worker s mother committed suicide, that he was raised in foster homes, that his foster parents did not ensure that he attended school, that he is therefore illiterate, that he spent time on the streets as a child (or, from the history, I infer as an adolescent), and spent ten years in jail as an adult. He is not bondable and cannot obtain a driver s license. [31] These are vocational characteristics that have proved a barrier to retraining, and have therefore increased the costs of the claim for the employer. However, they are not, in my view, in and of themselves, pre-existing conditions within the terms of the SIEF policy. In my view, the policy addresses medical conditions and not vocational characteristics. I find this apparent from the wording of the policy that states: both physical and psychological disabilities are included. Those words are not broad enough to include vocational characteristics that may be a barrier to vocational rehabilitation, such as a difficult childhood or past jail time, without more. However, in my view, this past history is relevant when considering whether it is likely that there was preexisting psychic trauma within the policy. It is the type of history that might be expected to be associated with psychological vulnerability. However, it is not sufficient in and of itself to establish that vulnerability. Therefore I have considered what evidence there is of a pre-existing psychological condition. [32] In my view, there is evidence of pre-existing psychological vulnerability. Dr. Corbin refers to the fact that the worker s concern about his mother s suicide caused him to be reluctant to try medication. Dr. Corbin also reports that the worker has some serious trust issues, resulting from a difficult childhood, which I infer is a factor that is relevant to his progress in therapy. He has social phobia. Dr. Corbin also refers to the fact that the worker received prior counselling at his probation office, which is evidence of prior psychological issues. [33] Dr. Brenda Tomini noted anger management problems and stated that, in addition, the worker s very high Neuroticism score suggested that he was likely to experience such feelings as anxiety, anger, guilt and depression. She stated that Neuroticism is highly linked to emotional regulation. This is clear evidence of pre-existing psychological factors that affected the course of the worker s recovery. [34] I note also the statement of Dr. Levy that the worker s illiteracy has compromised not only his prospects in LMR, but also significantly compromised his likelihood of benefitting from psychotherapy to alleviate his depressive and anxious symptoms. [35] Finally, Dr. Albrecht described the worker as at high risk for chronic pain. This statement was made shortly after the accident, and so I agree with Mr. Lusk that it reflects Dr. Albrecht s assessment of the worker s pre-existing vulnerabilities. The Board s policy on chronic pain recognizes that psychological factors may impact on how a worker experiences pain. The Board has not adjudicated this claim under its chronic pain policy, because it has not found the psychological aspects of the claim to be predominant. There is considerable evidence of organic injury. However, the Board has allowed benefits for the psychological symptoms of anxiety and depression. Dr. Albrecht s comment is evidence that in his view the worker s pre-existing mental status made him vulnerable to the psychological impacts from his injury.

8 Page: 7 Decision No. 631/10 [36] In my view, when she found that there was no relevant pre-existing condition, Dr Levy appears to have limited her inquiry to ascertaining whether there was evidence of a diagnosable depression or anxiety prior to the compensable injury. However, in the case of psychological disability, the question set out in the policy is whether there is evidence of prior psychic trauma resulting from life experience which could be considered as evidence of vulnerability to psychological illness. It is not necessary for there to have been a prior psychiatric illness or diagnosis. [37] In any event, given the evidence on file, it is not clear how Dr. Levy could exclude such a pre-existing diagnosis without obtaining the initial assessment report of Dr. Corbin, or additional information from the family doctor, or the records of the counsellor at the Windsor probation office. [38] There is evidence that the worker was not able to cope with even the remedial academic training suggested for him after the accident, because of his anxiety and depression, which further suggests a pre-existing vulnerability. [39] In my view, the evidence on file is sufficient for me to find that there was prior psychic trauma indicating a vulnerability to psychological illness. Taking that vulnerability into account, in conjunction with the evidence of at least moderate pre-existing organic factors in the low back, I find that there was a major pre-existing condition for SIEF purposes. [40] I must also consider the severity of the accident. The representative submits that the accident was of minor severity. The Board found that it was of moderate severity. [41] I find that the slip and fall accident was of minor severity. The policy describes a minor accident as one that is expected to result in non-disabling and minor disabling injury, and it describes an accident of moderate severity as one which is expected to cause disabling injury. [42] In my view, a slip and fall accident of the sort described in the medical reporting, without more, is not generally expected to result in a permanently disabling organic injury as well as serious psychological injury precluding or significantly delaying even academic retraining. As Mr. Lusk points out, the medical reporting does not even describe bruising on the worker s buttocks at the time of the accident. Although it is well recognized that a serious slip and fall accident may on occasion cause permanent injury, the type of outcome indicated by these facts, in my view, while a possible outcome, would not be generally expected within the wording of the policy.

9 Page: 8 Decision No. 631/10 DISPOSITION [43] The employer is entitled to 90% SIEF relief. DATED: April 27, 2010 SIGNED: E.J. Smith