WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 896/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 896/16 BEFORE: K. Iima : Vice-Chair J. Blogg : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: April 8, 2016 at Toronto Oral DATE OF DECISION: June 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1720 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated April 10, 2014 APPEARANCES: For the worker: For the employer: Interpreter: J. Johal, Paralegal Not participating W. Kler (Punjabi) 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. 896/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker was not entitled to an increase in the quantum of her non-economic loss (NEL) awards for the neck, upper back, and psychotraumatic disability. The worker also appeals the ARO s determination that the quantum of her loss of earnings (LOE) benefits was to be based on her ability to work 24 hours per week in a direct entry suitable occupation at minimum wage. The worker submits that she is unable to work and has a full loss of earnings. [2] The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [3] The issues under appeal are as follows: 1. Quantum of the worker s NEL award for psychotraumatic disability; 2. Suitability of employment in a direct entry suitable occupation (SO) at 24 hours per week; and 3. Quantum of LOE benefits. [4] At the outset of the hearing, Mr. Johal indicated that the worker was withdrawing her appeal of the quantum of the NEL award for the neck and upper back (i.e., cervical region). Mr. Johal advised that the worker was aware of the consequences of withdrawing the appeal of this issue. The Panel granted the worker s request thus, the appeal of the issue regarding the quantum of the NEL award for the neck and upper back is withdrawn. Any attempt to renew the appeal with respect to this issue will be subject to the time limit provisions set out in section 125(2) of the Workplace Safety and Insurance Act, 1997 (the WSIA). (iii) Background [5] On August 21, 2006, the worker, then 38 years old, was employed as a screening officer at the airport when she developed pain in her neck, shoulders, and back as she attempted to push a baby stroller that was stuck in an x-ray machine. [6] The worker has not returned to work since August 21, [7] The Board allowed initial entitlement for a neck, shoulder, and back injury. The worker received full LOE benefits from the date of accident to November 18, 2006 when the Board determined that the objective medical findings did not support an ongoing compensable impairment involving the neck, shoulders and lower back, and denied ongoing LOE entitlement. The Board also denied entitlement to a chronic pain condition due to the inconsistencies noted by the Regional Evaluation Centre (REC) assessment team during their examination of the worker. With respect to entitlement for a psychiatric condition, the Board concluded that there was a lack of a clear and direct relationship between the psychiatric condition diagnosed and the work accident of August 21, The worker s objection to that decision was upheld at the appeals level of the Board; the worker then appealed to the Tribunal.

3 Page: 2 Decision No. 896/16 [8] At the Appeals Tribunal, the worker s representative at the time withdrew the issue of entitlement for psychotraumatic disability. In Tribunal Decision No. 845/09, the Vice-Chair denied the worker entitlement to benefits for chronic pain disability, but granted entitlement to a labour market re-entry (LMR) assessment and full LOE benefits for the neck and upper back from November 18, 2006 to the date of the LMR assessment; the quantum and duration of benefits from the LMR assessment was remitted to the Board for adjudication. [9] In June 2010, the Board granted the worker a 31% NEL award in recognition of a permanent impairment to the neck and upper back. The worker continued to receive full LOE benefits until April 8, 2010, when the Board determined that the worker had failed to cooperate in a LMR assessment. The worker initially received partial LOE benefits, but when the worker appealed that decision internally at the Board, the ARO concluded that there was no organic basis for the worker s inability to participate in the LMR program or any evidence on file after April 2010 to support that the worker was unable to work due to any organic injuries and impairments. As a result, the ARO terminated the worker s entitlement to LOE benefits effective April 8, The worker s appeal of that decision to the Appeals Tribunal was denied in Tribunal Decision No. 933/11 1. [10] The worker s subsequent request for an extension of time to renew her appeal on the issue of psychotraumatic disability was granted in Tribunal Decision No. 2309/11E. [11] In Tribunal Decision No. 2309/11, the Vice-Chair granted the worker entitlement for psychotraumatic disability, as related to the August 21, 2006 compensable injury. The Vice-Chair also directed the Board to arrange for a NEL assessment regarding the psychotraumatic disability. [12] In July 2013, the Board granted the worker a 30% NEL award for her psychological impairment 2 due to post traumatic stress disorder, panic disorder, and major depression. When combined with her previous NEL award of 31% for the neck and upper back, the worker s total combined 3 NEL benefit was 52%. [13] Following the increase in the worker s NEL award, Mr. Johal requested a review of the worker s LOE benefits. In a decision dated August 28, 2013, the Board case manager concluded that the worker remained partially impaired and capable of cooperating with LMR services. As a result, the worker was not entitled to further LOE benefits. [14] The worker s objection to the quantum of the NEL awards was denied in the ARO decision of April 10, However, the worker s objection to the quantum of LOE benefits was allowed in part, based on the ARO s finding that the LOE benefits should be based on the 1 Notwithstanding these decisions, according to Board memorandum dated April 16, 2014, the worker received full LOE benefits to May 24, 2010, and received partial LOE benefits from May 24, 2010 to September 1, 2012 based on SO (customer services occupation, NOC 1453) earnings of $10.50 per hour at 40 hours per week. At the final LOE review date in September 2012, the Board used wages of $26.00 per hour based on an experienced worker in the SO as such, pre-injury earnings were deemed restored with no further wage loss. 2 The NEL Clinical Specialist determined that the worker s total impairment rating for panic disorder, major depression, and post traumatic stress disorder was 35%, and the impairment rating for her pre-existing impairment of major depression was 5%. In applying Board policy (Effect of a Pre-existing Impairment), the NEL rating for the worker s pre-existing impairment was subtracted from the total impairment rating, resulting in a 30% NEL benefit. 3 According to the AMA Guides, NEL values are not added, but combined using the Combined Values Chart.

4 Page: 3 Decision No. 896/16 worker s ability to work 24 hours a week in a direct entry SO, at minimum wage. Accordingly, the worker s partial LOE benefits from May 24, 2010 to September 1, 2012 were adjusted based on deemed earnings of $10.25 per hour at 24 hours per week, and locked in to age 65. [15] The worker submits that as a result of her compensable psychological and organic conditions, she is entitled to full LOE benefits as of May 24, The worker also submits that her psychological impairment is greater than the 30% NEL awarded. (iv) Law and policy [16] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA), as amended, provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [17] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [18] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [19] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions. (v) Analysis (a) Quantum of NEL award for psychotraumatic disability [20] Operational Policy Manual (OPM) Document No , Assessing Permanent Impairment Due to Mental and Behavioural Disorders, provides the following description for Class 3, a moderate impairment: Class 3, Moderate impairment (20-45%) impairment levels compatible with some but not all useful function There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress. In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies. The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.

5 Page: 4 Decision No. 896/16 In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behavior, tendency to avoid anxiety-creating situations, with everyday activities restricted to such extent that the worker may be homebound or even roombound at frequent intervals. [21] The NEL assessment for the worker s psychological impairment was rated by the NEL Clinical Specialist on July 22, 2013; the maximum medical recovery (MMR) date was January 18, In granting the worker a total psychological impairment rating of 35%, the NEL Clinical Specialist determined that the worker was at the mid-level range of the moderate impairment category. At the hearing, Mr. Johal advised the Panel that there was no dispute with the NEL rating of Class 3, moderate impairment. However, he submitted that the worker s impairment ought to have been rated at the upper rather than the mid-range of the moderate category. [22] As described in the NEL evaluation, the Clinical Specialist relied on the following documents contained in the claim file to determine the NEL rating: 1) FDR Sharma F26 23Sept2006 re depression and acute distress 2) Regional Evaluation Centre assessment and report 18Oct2006 3) Psychiatrist Dr. Sooriabalan assessment 16Nov2006 in report 24Nov2006 4) Psychiatrist Dr. Kakar assessment report 31Aug2007 (with objection form 22Oct2007), 10Apr2008, 19Nov2010 5) Dr. Kakar s report 18Jan2013 (re continued 57 treatments from 2007 until 16Jan2013) 6) Psychovocational assessment and report 08&24Apr2010 7) Dr. M. Pflug s report 29Jul2011 8) Worker s testimony in WSIAT Decision 2309/11 page 10 paragraph 40 [23] In the REC Assessment Report of October 18, 2006, neurosurgeon Dr. J. A. Mayer, and physiotherapist R. Gulhati, noted there were many inconsistencies in their examination of the worker, indicating a marked functional overlay. They expressed doubt as to whether continuing physiotherapy would be of any assistance, and recommended a psychological evaluation of the worker. [24] Following an assessment of the worker on November 16, 2006, psychiatrist Dr. T. Sooriabalan reported that the worker showed most of the symptoms of major depressive disorder, including severe depressed mood, anxiety, excessive worries, nightmares, fear of the unknown, social isolation, and lack of motivation. The worker also complained of having poor anger control/irritability, an inability to tolerate any noises, and poor sleep, resulting in forgetfulness and difficulty with concentration. Dr. Sooriabalan concluded that the worker had major depressive disorder, physical pain, and a global assessment of functioning (GAF) score in the range of 40 to 50. [25] As part of the LMR assessment, the Board referred the worker for a psychovocational assessment. In a report dated April 24, 2010, Dr. M. Luther, psychologist, and G. Jenkins, psychometrist, indicated that the test results might be an underestimate of the worker s abilities, taking into account her work history. However, the worker s physical pain and emotional

6 Page: 5 Decision No. 896/16 distress were likely barriers to her learning trajectory. They recommended the worker see a psychiatrist to help her deal with her emotional problems, as well as a doctor specializing in pain management. [26] According to the July 29, 2011 report of Dr. M. Pflug, internist, the worker s symptoms and findings were far in excess of any organic impairment which may have resulted from the original myofascial injury. The internist stated that the worker was not malingering but [was] pain focused and there [was] a marked functional overlay. Dr. Pflug indicated that prognosis was extremely guarded. [27] The worker received ongoing treatment from psychiatrist Dr. R. Kakar from April 2007 to January The case record contains several reports from Dr. Kakar, which describe the following: the worker s emotional symptoms including depression, irritability, anxiety, and hopelessness; her inability to tolerate noise; her poor sleep, concentration, and memory; her lack of motivation and energy; withdrawal from family and friends; and increasing dependence on family members (i.e., her husband and children) to carry out household and personal tasks. In addition, the worker continued to complain of widespread pain all over her body that was unremitting and severe, and which could not be explained by the limited physical findings. In Dr. Kakar s opinion, the worker had severe major depression, posttraumatic stress disorder, chronic pain syndrome and severe panic disorder, as a direct result of her workplace injury; she was totally disabled and unable to do all or any work. Dr. Kakar s last report on file of January 18, 2013 indicated that he had treated the worker 57 times over the course of nearly six years; the worker had reached MMR and her GAF score remained at 40/90 since his report of April The worker testified that she has since been receiving ongoing treatment from psychiatrist, Dr. J. S. Dhaliwal. [28] In the Panel s view, the above medical reports relied upon by the NEL Clinical Specialist depict the worker as being in the upper range of the moderate impairment category. For instance, according to Dr. Kakar s report of January 18, 2013, the worker scored in the severe range on both the Beck Depression Inventory and the Beck Anxiety Inventory, suggesting the worker displayed more than a moderate anxiety state, as well as continued episodes of depression. The reports also noted the worker s persistent pain, emotional withdrawal, ongoing significant depression, loss of appetite, insomnia, chronic fatigue, severe noise intolerance, diminished stress tolerance, psychomotor retardation, deterioration in family adjustment, and manifest breakdown of social integration. Moreover, the reports documented the worker s lack of interest in everyday activities; she was socially withdrawn and spent most of her time alone at home watching television. The Panel notes that there was no medical evidence before us which contradicted the clinical findings contained in these reports. Thus, based on the medical evidence before us, the Panel finds that the worker is entitled to an increase in the quantum of her NEL award for psychotraumatic disability to reflect a total non-organic impairment rating of 40% as related to her compensable work injury. [29] As there is no conflicting evidence before us in respect of the Board s reduction of the worker s NEL award by 5% for a pre-existing measurable psychological impairment, and the worker s representative did not raise any concerns regarding the application of Board policy on the effect of a pre-existing impairment (OPM Document No ), the Panel is satisfied that the worker s pre-existing psychological impairment was appropriately factored into her NEL award for psychotraumatic disability.

7 Page: 6 Decision No. 896/16 (b) Entitlement to full LOE benefits from May 2010 [30] The Panel agrees with Mr. Johal s submission that the worker is entitled to full LOE benefits from May 2010 onwards for the reasons set out below. [31] Even prior to the increase in the NEL award for psychotraumatic disability allowed in this decision, the worker had a significant combined NEL award of 52% for psychotraumatic disability and organic impairments to the neck and upper back. With the increase in the worker s NEL award for psychotraumatic disability to 40%, the worker s combined NEL award would result in a total NEL award of 59%, which in our view, denotes a significant impairment. [32] Furthermore, the Panel finds that the medical evidence as a whole indicates that the worker was experiencing severe depression and anxiety, had poor coping skills, and had significant persistent pain. Although the worker s pain was found to be consistent with a marked functional overlay, there was no suggestion that the worker did not genuinely experience severe pain. The consensus among the specialists who treated the worker appeared to be that the worker had major depressive disorder and a GAF score ranging from 40 to 50; prognosis ranged from guarded to extremely guarded. In our view, there was no evidence of significance before us which supported a conclusion that the worker was able to return to work. As noted in Board memorandum dated May 11, 2010, the psychovocational testing found the worker was experiencing extreme depression and anxiety, and appeared to be functioning below optimal academic levels: Psychovocational assessment testing as well as the academic assessment indicate that worker is functioning below the academic levels that are considered optimal in competing in today s labour market and specifically what is required with respect to the essential skills necessary to perform both SEB options. [33] As a result of the worker s significant combined organic and non-organic impairments, the Panel finds it unlikely that the worker would be able to maintain any employment, even at part-time hours. Accordingly, we find that the worker is entitled to full LOE benefits from May 2010 onwards.

8 Page: 7 Decision No. 896/16 DISPOSITION [34] The appeal is allowed. [35] The worker is entitled to an increase in the quantum of her NEL rating for psychotraumatic disability to reflect a total non-organic impairment rating of 40% as related to her compensable work injury. [36] The worker is entitled to full LOE benefits from May DATED: June 28, 2016 SIGNED: K. Iima, J. Blogg, A. Grande