WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1396/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1396/15 BEFORE: J. Josefo: Vice-Chair HEARING: July 2, 2015 at Toronto Oral DATE OF DECISION: July 20, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1626 DECISION UNDER APPEAL: WSIB decision of Appeals Resolution Officer ( ARO ) S. Carney, dated May 31, 2013 APPEARANCES: For the worker: For the employer: Interpreter: L. Dillon, Barrister and Solicitor 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. 1396/15 REASONS (i) The worker's appeal [1] The worker appeals the May 31, 2015 decision of Board Appeals Resolution Officer ( ARO ) S. Carney. ARO Carney concluded that the worker was not entitled to: a permanent impairment award for her neck, a non-economic loss ( NEL ) redetermination for the compensable bilateral wrist condition, benefits under the Board s chronic pain disability ( CPD ) policy, benefits pursuant to the Board s psychotraumatic disability policy, full rather than partial future economic loss ( FEL ) benefits. [2] The ARO came to these conclusions after a review of the record, without an oral hearing. (ii) Issues [3] Flowing from the above, the issues in this matter arise out of the worker's compensable accident of September 12, 1992 for her bilateral wrist injuries which the Board concluded arose due to repetitive keyboarding and computer data-entry. The worker seeks the following entitlements denied by the ARO in the May 31, 2015 decision: entitlement for a redetermination of the NEL award for the bilateral wrist injury, entitlement for a permanent impairment to her neck condition, entitlement for psychotraumatic disability, which arose out of the 1992 compensable accident. In the alternative, the worker seeks entitlement based upon CPD, entitlement to a full rather than partial FEL award, to begin after the worker's labour market re-entry ( LMR ) program closed and after the worker was unable to find employment because, it was asserted, the combination of her various compensable conditions. (iii) Background facts [4] The facts which underpin the worker's appeal arise out of the recognized compensable bilateral wrist injuries. The worker, who was an administrative assistant, was found to have sustained those bilateral wrist injuries based upon repetitive strain, with a date of accident of September 12, At that time the worker used an electric typewriter. [5] The worker's recollection, pursuant to her testimony before me, was quite vague. Yet the worker recalled that at some point in the 1990s, after the employer's office location changed, she had a computer and keyboard to use instead of an electric typewriter. [6] Notwithstanding this change, the worker began to experience a loss of time in or about November Until that date the worker may have taken time off for physiotherapy twice weekly, as she testified, yet she returned to work after treatment and continued working. As of

3 Page: 2 Decision No. 1396/15 November 1997, however, it is documented that the worker began to lose time from work because of her compensable bilateral wrist condition. [7] Following ergonomic adjustments to her workstation, the worker continued in employment until November Yet in November 1999 the worker laid off, returning to work on December 20, As of April 2000 when her workload increased, the worker laid off again. As further accommodation was not possible, as the Return to Work Mediator described in a June 19, 2000 memo, the workplace parties agreed that the worker would begin LMR services. [8] LMR services accordingly began in or about 2001 and continued for approximately four years. The worker initially participated in academic upgrading. She then transitioned to a community college where she participated in what was initially a two year but which became a three year program in human resources. This led the worker to a diploma or certificate in human resources. [9] Following the successful completion of that three year community college program, the worker was provided with approximately one year of job search assistance. After the job search assistance program ended, the worker on her own found temporary employment through an employment agency. She recalled in her evidence before me that the temporary job was supposed to last only six weeks, yet she continued in that employment for approximately three months. [10] The worker claimed that she was unable to continue in that employment due to the stress of work and her compensable condition. Yet she sought other employment and obtained two other temporary jobs which she pursued for, in each case, a number of months or weeks, until the worker asserted that those temporary assignments became impossible for her to perform, thus causing her to leave those assignments. [11] The worker subsequently applied for Canada Pension Plan Disability ( CPP-D ) benefits, which she received in or about 2006 or [12] The worker over the years pursued and then withdrew her appeals before the Board s Appeals Branch. It was asserted at one time by her current representative, Mr. Dillon, as was recorded by ARO L. Humphreys in an April 16, 2003 memo, that the worker did not continue to experience emotional difficulties and there would not be a need for a further assessment with a psychiatrist at this time. [13] Subsequent to that memo, however, it appears that the worker and Mr. Dillon came to other conclusions. The worker has asserted that her psychological difficulties stem from the compensable injury of 1992, and that the worker has always experienced psychological difficulties ever since the outset of this claim. This assertion was made notwithstanding the acknowledgement that from 1992 through to 2000, for a period of approximately eight years, the worker did not see a psychologist or psychiatrist. [14] ARO Carney addressed the worker's various issues as described above, denying the worker's various claims. The worker disagrees with those conclusions and appeals further to the Tribunal. (iv) Law and policy [15] Since the worker was injured in 1992, the pre-1997 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1997 Act, as

4 Page: 3 Decision No. 1396/15 amended, unless otherwise stated. The hearing of the appeal commenced after January 1, Therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to this appeal. [16] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, revision #9, would apply to the subject matter of the above appeal: Policy packages 9, 50, 51, 69, 260, 263, 264, 267, 300 [17] I have considered these policies when deciding the issues in this appeal. I have paid particular reference to, amongst others, Operational Policy Manual ( OPM ) Document No , Reviewing FEL Benefits as well as OPM Document No , Psychotraumatic Disability. Indeed, Mr. Dillon thoroughly reviewed OPM Document No in his submissions in this matter. (v) Discussion of the evidence and conclusions General observations and impressions [18] The worker testified in response to questions from Mr. Dillon as well as answered questions of clarification from me. The worker was by no means a precise witness, given that she would state in response to some questions that matters occurred a while ago, without being able to state with specificity when a particular event occurred, or when an event stopped occurring. The worker was in that regard quite hesitant with respect to dates and timelines. [19] Regarding her attendance before a psychologist or psychiatrist, the worker did not believe that there was an eight year gap from 1992 to The worker was of the view that she continued to see a psychiatrist on a very regular basis. Yet the records before me appear to indicate that while the worker many years after the outset of this claim more regularly sought psychiatric or psychological assistance, there earlier were also significant gaps in her treatment. [20] The aforesaid April 16, 2003 memo from ARO Humphries, moreover, seems to indicate that at that time the worker's counsel, then and still Mr. Dillon, was of the view that the worker did not continue to experience emotional difficulties. Mr. Dillon did not seek to clarify this memo or address it in the course of the hearing, so accordingly I consider that this is indeed what he likely stated to the ARO in [21] At present, considering the worker's testimony, she clearly has adopted the disabled role. She testified as to her extremely limited activities in her home, including limited communication with her husband and her two adult children who live with her, and also with her young grandchild who lives with the family on a part-time basis (in a shared custody arrangement with the child s mother). The worker testified that she has difficulty with self-care and with daily activities, although she does try to go for short walks to a local park from time to time. The worker claims that she is very limited because of her pain not only in her wrists but in her shoulder, neck, feet, and in various other parts of her body. She as well asserted that she is limited by her depression. [22] I have carefully considered the worker's testimony. The worker is clearly an interested witness in this matter, as she very much has something to gain depending upon the outcome of her appeal. Therefore, in weighing all the evidence, I must carefully consider the worker's credibility. Assessing credibility is a difficult, although important, issue. See, for example,

5 Page: 4 Decision No. 1396/15 Tribunal Decision No. 684/04 which addresses an approach followed in the assessment of credibility: I have carefully considered the worker s testimony as to her modified work duties, and the alleged lack of assistance she received from the accident employer. While no doubt intending to be a sincere witness, the worker is also indisputably an interested party in this matter. It is thus necessary to assess her credibility. A useful discussion with respect to the weight to be accorded to the testimony of an interested party is found in Tribunal Decision No. 1832/00 as follows: We turn now to the worker s own testimony. Assessing credibility is a delicate exercise. Often, there is genuine disagreement as to facts or their interpretation. An individual may, quite naturally and honestly, wish to provide his or her perspective in the best possible light. This is by way of acknowledging that there are situations where strikingly different versions of events can be presented without loss of credibility to any of those offering a perspective. However in the case before us, certain versions must be preferred as more likely and/or more plausible than others. This is so because certain aspects of the events for the time in question are mutually exclusive and, even allowing for an individual shading of memory or emphasis, cannot all be true. It follows that the Panel must carefully explain why it prefers the evidence that it does. The assessment of the credibility of interested witnesses has been discussed as follows in the following decision of the British Columbia Court of Appeal, Faryna v. Chorney (1951), 4 W.W.R. (N.S.) 171, (which was quoted with approval by the Ontario Court of Appeal in Phillips v. Ford Motor Co., [1971] 2 O.R. 637): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [23] As discussed above, I found the worker to be a vague and imprecise historian. While she has clearly adopted the disabled role and sought to persuade me that she was disabled because of the 1992 compensable injury, plus the other injuries which she asserts arose out of workplace causes, the worker s testimony was often inconsistent with the contemporaneous record. It was in particular inconsistent with the worker's own diligent and quite successful pursuit of academic upgrading for a greater than three year period from approximately 2001 through to [24] Of course, when testifying, the worker was attempting to recall matters from many years ago. It is not expected that anyone would have a perfect memory of what occurred 20 or more years in the past. Yet that is why contemporaneous records are so important. The records before me, in my view, are more likely to be accurate than is the worker's years after-the-fact, vague, and hesitant testimony. This is especially the case given as these records were created at the particular time of events occurring, and were also created by those, in the main, without any particular interest in the outcome of a matter. Thus, if there is any dispute between the worker's memory and the contemporaneous records in this matter, I prefer the contemporaneous records as likely more accurate and more reliable than the worker's faded memory of long-ago events.

6 Page: 5 Decision No. 1396/15 [25] In Mr. Dillon s concluding submissions, he focused almost exclusively on entitlement for psychotraumatic disability or, alternatively, CPD. CPD was, however, discounted because counsel asserted that the worker s pain is explained by her organic condition(s). I will thus turn to the organic medical conditions for which either entitlement or a redetermination is sought. I will then address the non-organic entitlement issues. Given my discussion of the evidence that will flow, there may be some overlap in these sections. (a) A permanent impairment for the neck? [26] Mr. Dillon in his concluding submissions did not address this issue. Yet when I review the January 3, 2013 medical report from the worker's current family physician Dr. A. Martin, I note the worker's diagnoses includes repetitive strain injuring wrists, fibromyalgia, right rotator cuff tendonopathy, and carpal tunnel syndrome. There is no mention in this medical report of any condition involving the neck, or that the neck would be a distinct area of pain source. [27] The earlier history in this matter notes that the worker first complained of neck pain in February There was intermitted reporting of neck pain thereafter, with the last report addressing the neck seemingly by physiatrist Dr. V. Hajek dated December 18, 2002, which was long after the worker laid off from the accident employer. At that time the worker was noted to have a decreased neck range of motion by 5º each side, while extension was decreased 50%. [28] Dr. Hajek s report of September 29, 2004 discussed the worker's repetitive strain injury ( RSI ), tendonitis and tenosynovitis of both wrists and forearms. While noting the pain and inflammation in the worker's wrists, there is no mention of any neck difficulty in this report. A September 28, 2005 report from Dr. Hajek also does not mention the neck but rather focuses on the worker's carpal tunnel syndrome. [29] A March 15, 2007 report from physiatrist Dr. R. Chow discusses the worker's bilateral CTS with at that time no associated weakness of hand grip or tendency to drop things from the hand. He noted that the worker functionally has chronic pain in the neck, yet on a physical examination the worker had normal range of motion of the cervical spine with neck pain but no radicular sign. The impression was that the worker had bilateral mild carpal tunnel syndrome which at that time had progressed slightly since the prior test. [30] A May 7, 2007 report from Dr. Hajek emphasizes the worker s bilateral CTS and treatment for this condition. A May 12, 2007 report from Dr. Hajek documented the worker's left shoulder and left elbow pain and the worker's belief that maybe her carpal tunnel is more symptomatic albeit, Dr. Hajek concludes that on examination the strength seems to be preserved in the hands clinically, no sensory changes were seen. Dr. Hajek notes that there was range of motion in the shoulder albeit with pain. The neck is not discussed in this report. [31] An April 23, 2008 report from yet a different rheumatologist, Dr. A. Kagal, does mention the worker's complaints of chronic neck and shoulder pain as well as diffuse myalgia and carpal tunnel syndrome. Dr. Kagal saw the worker specifically for the right shoulder. He diagnosed fibromyalgia and a chronic pain syndrome, and opined that the worker does have widespread pain from fibromyalgia. In a subsequent report of August 1, 2009 Dr. Kagal reiterates the worker's chronic pain syndrome, fibromyalgia, work-related injury from repetitive use, as well as her depression. [32] Dr. Chen, in a November 30, 2009 report, wrote to Dr. Kagal about the worker's bilateral upper limb discomfort. Dr. Chen, to whom Dr. Kagal referred the worker, noted in a

7 Page: 6 Decision No. 1396/15 December 10, 2012 report that the worker complained of neck pain although the physician was of the view that the worker had full range of motion. Dr. Chen concluded his report with this advice for the worker: The patient was advised to remain active and initiate brisk walking programs, aquatic activities, or use of stationary bicycles/stair steppers. These activities can increase endorphin levels, promoting a sense of well-being, and allow her to perform at a higher level of function before perceiving pain. [33] The physiatrist, however, was not of the view that the worker's neck pain had any specific cause. This is consistent with the aforementioned report dated January 3, 2013 from Dr. Martin. It appears from my consideration of all the evidence most probable that the worker's diffuse pain in various areas, including the neck, stems from her fibromyalgia. [34] Accordingly, I am not able to allow the neck as a distinct area of organic entitlement. There is no medical evidence that persuades me the worker has had ongoing neck pain, or that it would have been causally related to the RSI for which she was granted entitlement in (b) Redetermination of the NEL for the bilateral wrist condition? [35] The worker was allowed a 9% whole person NEL assessment which, as the ARO observed, is near the maximum individual rating for the recognized RSI. Mr. Dillon submitted that the RSI approach was the wrong approach to rate the worker, yet a different approach was not suggested by counsel for the worker. In any case, I am not clear why a different approach should be followed. After all, the worker's condition ostensibly arose out of her repetitive duties of typing and entering data, initially on an electric typewriter. [36] Moreover, the reports referenced above from the various rheumatologists who have assessed the worker seem to be of the consensus view that the worker's problem began due to repetitive strain activity. Accordingly, it would appear that the RSI approach used in this matter is the correct approach. [37] Dr. Chen s assessment of December 10, 2012 seems to indicate that the worker has ongoing abnormal results from the electrodiagnostic study which he conducted. The worker's distal median neuropathy was demonstrated to be severe on the right and moderate on the left. Dr. Chen s narrative report also acknowledged that the worker however also has chronic pain with psychological overlay. Given that, this physician did not recommend carpal tunnel surgery to the worker, but rather urged her to try to be as active as possible, as the above-referenced excerpt from his report states. [38] Dr. Kagal in an August 15, 2012 report discussed the worker's history of fibromyalgia and the worker's ongoing elbow discomfort which he notes may reflect her fibromyalgia condition. Yet, in that report he emphasizes that the worker s ranges of motion (organically) were not within the normal limits, although Dr. Kagal states that neither was the worker's NEL examination upon which her assessment was based. [39] In this matter it is a challenge to separate the fibromyalgia condition from which the worker suffers with the previously recognized compensable bilateral wrist condition. Indeed, Mr. Dillon submitted in passing that the fibromyalgia condition would be within the worker's non-organic entitlement should I grant the worker entitlement to CPD, which was the alternative theory suggested by Mr. Dillon.

8 Page: 7 Decision No. 1396/15 [40] Yet Mr. Dillon urged upon me that the worker's organic condition provides a likely reliable explanation for her symptoms, with the worker's depression truly best recognized pursuant to the Board s psychotraumatic disability policy. I will address whether the worker's depression is compensable ahead in these reasons. In my view, however, I tend to agree with Mr. Dillon that non-organic CPD is not the appropriate way to recognize the worker's ongoing difficulties. After all, as Dr. Kagal and, more specifically, Dr. Chen indicate, there is a clear organic explanation for at least some of the worker's pain complaints in her bilateral wrists. As of May 7, 2007 Dr. Hajek, the physiatrist who had seen the worker before, noted the worker continued to have bilateral mild carpal tunnel syndrome which had progressed slightly since the last test. Dr. Chen specifically noted that the worker's distal medial neuropathy would be graded severe on the right, and moderate on the left. While Dr. Chen was loath to operate on the worker given the various other diagnoses including fibromyalgia, this does negate the organic condition documented by various physicians, from which condition the worker clearly still suffers. Indeed, this is the condition which, since 1992, has impacted the worker. [41] Given the severity recognized by Dr. Chen in his assessment, it would appear likely that there has been some degree of at least fairly significant deterioration. Of course, when the Board reassesses the worker, given the passage of years since 2012 when Dr. Chen provided his report, that same result which Dr. Chen obtained may not again be obtained. The worker may be worse or better. In any event, however, based upon the medical evidence before me, it is appropriate that the worker now be reassessed, with the Board being able to determine if there has (or has not) been deterioration which would, pursuant to policy, lead to an increased NEL rating for the bilateral wrist condition. [42] Thus, the Board will reassess the worker for the bilateral wrist condition, in order to determine if there is recognizable deterioration that would lead to an increased NEL award. Such subsequent decision of the Board is subject to the usual appeal rights of the workplace parties. (c) CPD or psychotraumatic disability? [43] Addressing CPD first, again, this approach was not urged upon me by the worker's counsel. It was submitted in fact that the worker's pain is best described organically, with her depression being a separate issue captured by the psychotraumatic disability policy. [44] I tend to agree with the conclusions of the ARO with respect to the worker's CPD. It was found by the ARO that for many years there was little evidence of pain levels or the need for aggressive pharmaceutical management of the worker's pain. Addressing marked life disruption and impairment of earnings capacity, it is my view that for a number of years the worker was able to continue in normal and indeed increased activities. [45] In particular, after leaving the accident employer the worker was involved in a heavy and sustained level of LMR activities over a period of many years. During this time, as I will discuss further ahead, the reports indicated that there were no foreseeable barriers to the successful completion of this worker's LMR plan (as in Progress Report #22 dated February 10, 2003). [46] During those years the worker was involved in her LMR program on virtually a full-time basis when one includes her travel time to and from the community college in Toronto. The worker, after attending class, also would have to pursue her studies. That she did, and she did her tasks with obvious diligence given her quite successful completion of her academic program.

9 Page: 8 Decision No. 1396/15 [47] This to me demonstrates that there was no marked life disruption or impairment of earnings capacity at least during those years, and there is no evidence of that during the previous years leading up to her periodic layoffs between 1997 and While the worker at that point lost time, the time lost was clearly for the organic bilateral wrist condition. [48] Ultimately, the worker was diagnosed with fibromyalgia. Yet that condition was not seemingly diagnosed until Dr. Kagal s April 23, 2008 report to family physician Dr. Martin. At that time, Dr. Kagal concludes that the worker has 18/18 fibromyalgia tender points. He concluded that the worker has chronic pain syndrome, fibromyalgia and carpal tunnel syndrome as well as right rotator cuff tendonopathy. [49] This is, however, diagnosed only in 2008 after the worker had withdrawn from the workforce and applied for CPP-D benefits. The worker's application for CPP-D benefits indicates that the worker concluded on September 4, 2007 that she could no longer work because of her medical condition. [50] As of May 7, 2007 Dr. Hajek, one of the physiatrists who had seen the worker, noted the worker continued to have bilateral mild carpal tunnel syndrome which had progressed slightly since the last test. Dr. Hajek endorsed the worker's desire expressed at that time to apply for a disability pension. A March 15, 2007 report from Dr. Chow, the other physiatrist whom the worker would regularly see, observed in March 2007, thus approximately three months before Dr. Hajek endorsed the worker's application for CPP-D benefits, that the worker was suffering from bilateral CTS which would preclude her from keyboarding, noting that the worker had completed her job retraining and was looking for a job now. [51] Obviously, the worker s perception changed between March 15, 2007, the date of Dr. Chow s report, and May 7, 2007, when the worker saw Dr. Hajek. By that latter date the worker decided to cease looking for work. Moreover, when the worker completed her CPP-D application, she identified September 4, 2007 as the date from when she was precluded from working because of her medical condition. [52] September 2007, however, is before the worker's seeming diagnosis for fibromyalgia in April It is also before those symptoms were seemingly considered by Dr. Chow or by Dr. Hajek. Again, it was only Dr. Kagal in an April 23, 2008 report who diagnosed the worker with fibromyalgia. [53] While the worker may well have this condition, which appears to explain a significant degree of her ongoing pain issues including in areas quite remote from her original injury such as her feet, it is very difficult in this case to causally link the fibromyalgia condition to a workinjuring process. After all, the worker was removed from any work activities that could have contributed to her diffuse pain complaints when she laid off from the accident employer and began LMR in Thereafter, and while engaged in LMR activities, it is clear that the worker was fully and successfully engaged, with nothing to provoke new organic or non-organic conditions. [54] She dropped one course, yet the worker pursued that course during the summer program, and she was able to continue in her courses and generally do quite well, being quite active without these later-arising complaints of diffuse pain. These complaints of diffuse pain indeed only surfaced years after-the-fact, and after the worker worked for a period of time in temporary and unfortunately limited employment. The limitations in her employment seemingly caused her

10 Page: 9 Decision No. 1396/15 to become discouraged about her employment prospects, leading the worker to decide to withdraw from the workforce. [55] Whether this discouragement explains her pain, and whether this led to fibromyalgia, itself a fairly controversial syndrome, is not an issue I need address in these reasons. It is sufficient that there is a lack of compelling medical or other evidence which would demonstrate that the worker's fibromyalgia condition, which was only diagnosed many years after she left the accident employer and years after she completed her LMR program, likely arose because of a work-injuring process. [56] None of the physicians have offered a compelling opinion addressing causation or contribution in that regard. Moreover, as Dr. Kagal, for example, was not treating the worker when she was employed with the accident employer, it would be difficult for that physician, or indeed any physician who was not treating the worker at the relevant time, to offer an objective opinion which could causally link the worker's fibromyalgia to a remote in time work-injuring process. [57] As such, accepting the medical reports that the fibromyalgia condition likely explains the worker's diffuse pain complaints, I conclude that this condition is not compensable. It in my view cannot be linked to the worker's compensable condition. As such, the worker's does not have entitlement to benefits for CPD (as fibromyalgia is addressed pursuant to the CPD policy). [58] I now address psychotraumatic disability entitlement. The worker has been diagnosed with depression, yet as indicated earlier in these reasons, there are significant gaps in her treatment. There is also the aforesaid statement by Mr. Dillon to ARO Humphries, as recorded by the ARO on April 16, 2003, that the worker did not continue to experience emotional difficulties and there would not be a need for further assessment with the psychiatrist at this time. [59] This is consistent with the medical report of the worker's one-time treating psychiatrist Dr. C. Krishnalingam. In a December 7, 2003 report to the Board, Dr. Krishnalingam states that he has not seen the worker since May 2, He noted that the worker has not called me for any appointment. Dr. Krishnalingam concludes that since I have not seen [the worker] after May 2001 I am unable to elaborate about current levels of impairment, work readiness and any psychologist restrictions. Thus, at that time there was noted to be a 31-month gap in psychiatric care. [60] It is also seemingly without dispute by the worker's counsel that the worker did not obtain psychological or psychiatric treatment between 1992, when the compensable condition arose, and 2000, when she laid off from the accident employer and began the Board-sponsored LMR program. This is thus an eight-year gap in treatment. [61] In support of the worker's condition which Mr. Dillon asserted was manifest, as that word is used in OPM Document No , within five years, I was referred to the Adjudicator s memo of July 16, 1993 to the Board s then Unit Medical Advisor Dr. Walker. In the memo the Adjudicator noted that the worker was prescribed Benzodiazepan. Dr. Walker, in a July 19, 1993 response concluded that Benzodiazepan, a tranquilizer, would not be in order for the worker's recognized bilateral wrist problems. Mr. Dillon suggests that the prescription of a tranquillizer, however, demonstrates that the worker's psychotraumatic disability had manifest as early as the date that that medication was recommended, back in July 1993.

11 Page: 10 Decision No. 1396/15 [62] When asked, however, Mr. Dillon candidly acknowledged that there was no medical report from the worker's then family physician Dr. Kirzner or indeed from any other physician which opined or explained that the worker's need for the tranquillizer was due to work-related factors. In my view, given that the physician had reported the worker's bilateral wrist condition as compensable, if the worker's treating physician(s) believe that the worker's need for the tranquillizer was for compensable reasons, then an explanation likely would have been provided to the Board in that regard. As such was not received by the Board, I conclude that that prescription was not related to the worker's compensable condition. [63] I am fortified in this view by the fact that the worker continued in employment not for one or two but rather for approximately five years, without any significant loss of time other than to attend physiotherapy treatment and return to work, from 1992 until At that time the worker began to lose time from employment, yet she still continued working until she laid off in The significant gap of eight years in seeking medical attention from when the condition first manifest is outside of the five year provision within OPM Document No [64] Moreover, the worker did seek psychiatric care for a period of time from Dr. Krishnalingam, yet the worker did not continue to see that physician as is indicated in the above-noted December 7, 2003 report. Thereafter the worker sought attention from Dr. Hajek and other rheumatologists as discussed herein. She was ultimately seen by psychiatrist Dr. J. Risman. [65] Dr. Risman s February 24, 2011 report indicates that he has seen the worker over the past four years which thus would begin in or about 2007, long after the worker successfully completed her LMR activities and near to when the worker decided that she would not continue in employment but rather would apply for CPP-D benefits. [66] Dr. Risman s February 23, 2011 report to Mr. Dillon described the worker's chronic pain, financial situation and poor self-confidence as the main contributions to her deteriorating mood. Yet, for reasons discussed above, the worker's pain has organic causes and her fibromyalgia, which Dr. Risman does not address in the February 24, 2011 report, likely plays a significant role in her ongoing difficulties. That condition, however, again is not compensable for reasons discussed above. [67] It also does not appear to me that Dr. Risman was aware of the worker's sustained and successful efforts over approximately four years in the LMR program. It does not appear that this physician knew that the worker went to school on an almost daily basis, attending many courses, and that she ultimately graduated successfully in her program. It is also clear that the worker worked for a number of companies on a temporary basis thereafter, about which work history Dr. Risman may also be unaware. The lack of being informed of all this very relevant history in my view renders unreliable any opinion on causation offered, especially to a work accident that occurred many, many years before the physician began treating the worker. [68] I turn briefly to a discussion of the worker's LMR program. As the November 4, 2005 LMR plan closure report describes, initially the worker was thought to be trained for a finance and insurance clerk role. That plan was changed to train the worker for a human resources and business service occupation under NOC #112. The worker attended academic upgrading at Seneca College from December 4, 2000 through to August 31, She then began her formal program at George Brown College in the human resources program. She was in that program from September 4, 2001 until April 30, 2004 given that the program, initially scheduled to be a

12 Page: 11 Decision No. 1396/15 two year program, changed to a three year program. The Board agreed to cover the entirety of the program for the worker to ensure that she was fully trained and qualified in this field. [69] The worker then began job search training from May 3 to May 28, 2004 and had a formalized job search with assistance from the Board, including benefits, through to November 4, The worker s LMR plan completed on November 4, Unfortunately, despite being in my view job-ready, the worker was unemployed until she subsequently found temporary employment. [70] There is no doubt that the worker was concerned about her job prospects. She was diligently applying for work as the September 30, 2005 progress report described. The September 30, 2005 memo recording the worker's discussion with her Vocational Pathways counsellor on September 29, 2005 reads in part as follows: [The worker] reiterated that she was depressed in reference to her ongoing job search. She advised that she was feeling frustrated and depressed on a daily basis as she was unable to secure a position. She reported that she was concerned about her age as a possible barrier. She reported that she did not like sitting at home. Overall, the worker stressed that her job search time was running out and she was feeling pressure to find employment. She said to this case manager, what do I have to do to find a job? [71] In my view, this memo demonstrates that up until the fall of 2005, the worker was active and, as she stated, did not want to sit at home. She was not at that time housebound or roombound, as Mr. Dillon submitted is the worker's present circumstance. To the contrary, the worker was actively pursuing her employment search and indeed she did find a number of temporary jobs. When those came to an end, however, without clear prospect of any ongoing employment, it appears to me, again, that the worker decided to withdraw from the workforce. Perhaps she did not see any potential of becoming employed so decided to seek CPP-D benefits. Yet, whether that is or is not correct, there is nevertheless no evidence before me that would demonstrate that the worker was not able to work because of her compensable condition. [72] Rather, the record before me is compelling that the worker was rendered job-ready and that there were no barriers in her finding employment. For example, the job-find workshop report of June 1, 2004 noted that the worker attended the program each day and was punctual. That report further indicated that the worker's motivation, focus on vocational goals, participation (initiative), dependability (co-operation), and communication skills were all excellent. [73] Progress report #33, the training activity report dated April 1, 2004 noted that the worker was at that time to commence the job search training program in early March The memo of the case worker describes a telephone call which the case worker had with the worker. The memo reads in part as follows: On April 1, 2004 this Case Manager spoke with [the worker] on the telephone. She reported that her schedule was "very busy and crazy", with many assignments due at the same time, and so she would not be able to attend the scheduled appointment with this Case Manager on April 6, [The worker] reported that her exams would commence on April 7, 2004 and would be completed by April 16, This Case Manager confirmed with her that the Job Search Training Program would commence in May. She stated that she would contact the Facilitator of the program to confirm the May 3, 2004 start date and time of the class.[the worker] said that she had no concerns and no further questions. The next meeting was scheduled for May 4, 2004 at Vocational

13 Page: 12 Decision No. 1396/15 Pathways Inc. There are no foreseeable barriers to the successful completion of the worker's LMR plan [emphasis added]. [74] That last sentence above was fairly consistently used in the various progress reports, and in my view that statement was accurate. Again, the worker did well in her program overall. Her grades were quite good including from her initial July 21, 2001 academic upgrading. At that time the worker received a 95.5% in accounting lessons as well as a 100% in a portion of her business math class. It was also discussed that the worker has been reading and listening to Macbeth on tape. She can detect symbolism and foreshadowing has the ability to write a coherent essay in 45 minutes. Clearly, these abilities demonstrated by the worker would not be expected in someone suffering at the time from severe depression, or from fibromyalgia, for that matter. [75] Overall, I find that the worker pursued her LMR activities with vigor, enthusiasm, and she achieved success in the program. [76] The worker then unfortunately had difficulty finding employment notwithstanding the assistance she received to that end. Ultimately she did find employment which the worker claimed, absent any corroboration, that she was unable to continue. Yet she testified that the first assignment was only to be for six weeks and she continued in that employment for three months. She testified that in that first job she had to sort through résumés and then, once she had selected appropriate candidates, obtain her supervisor s approval for those candidates, which approval the worker testified was forthcoming. The worker then conducted telephone interviews of those candidates for various jobs within that company, and then assisted with the in-person interviews. [77] The worker testified that she left that employment because she could not work because of her compensable condition. This reason for leaving is however contradicted by the fact that the worker testified that she found two other temporary assignments. If the worker was truly unable to work because of her compensable condition, then I find it more likely that the worker would not have sought other employment. Again, it appears to me, despite the worker's current recollection otherwise, that the worker became, unfortunately, discouraged by the challenges she faced in finding permanent employment, despite her success in finding a number of temporary jobs. Again, I find that the worker likely decided to leave the active workforce and to that end she sought CPP-D benefits. [78] As Mr. Dillon well knows, the Tribunal is not bound by any decision made by the body which grants CPP-D benefits, as those decisions are based upon different criteria than what the Tribunal considers. For my purposes, if the worker was granted such entitlement because of her fibromyalgia, which seemingly arose remote in time from and unrelated to her compensable condition, then, because of the lack of relationship with her compensable condition, it cannot be said that the worker's disability arose out of the long ago and quite remote in time work accident. [79] The worker was able to demonstrate no psychological difficulties in pursuing her busy LMR activities with great vigor and great success for a good number of years. I am unable to conclude that whatever psychological problems which the worker now has arose out of the remote workplace injuries. If the worker is unfortunately depressed because of her lack of employment, despite being made job-ready, that is not a compensable condition. [80] Accordingly, for these reasons as well as for the reasons well expressed by ARO Carney, the worker does not have entitlement for psychotraumatic disability benefits.

14 Page: 13 Decision No. 1396/15 (d) Full FEL? [81] The above discussion should indicate that it is my conclusion the worker is not entitled to a full rather than a partial FEL award. The R2 FEL decision of January 2007 in my view correctly concluded that the worker could perform the job of a human resources specialist. The LMR program rendered the worker job-ready for such work and the worker demonstrated an ability to perform such work, including with a well-prepared résumé and cover letter which the worker actively used in seeking such employment. Dr. Chow indeed noted in the abovereferenced March 15, 2007 report that the worker was then looking for a job. [82] As discussed above, the worker ultimately found several temporary jobs which she performed. There is no independent corroboration to which I was referred that the worker was unable to continue in such employment because of her compensable condition. I find that the worker decided to withdraw from the workforce and accordingly she claimed CPP-D benefits. [83] Yet the worker in my view could have continued to participate in the workforce. Tellingly, her fibromyalgia condition was only diagnosed around the time of her decision to seek CPP-D benefits and withdraw from employment activities. I need not determine whether the fibromyalgia, and the other conditions which arose subsequently, disabled from the worker from work, as I have found these conditions non-compensable for reasons stated above. (vi) Conclusion [84] To recap, I have, essentially on the benefit of the doubt, allowed the worker a redetermination of her NEL award for the bilateral wrist condition given Dr. Chen s recent reports. The Board will reassess the worker to determine if there has been any significant deterioration. Decisions of the Board pertaining to that issue are subject to the further rights of appeal of the workplace parties. [85] I have denied the worker entitlement to a permanent impairment award for her neck. I have further denied the worker entitlement to benefits based upon CPD or for psychotraumatic disability. [86] The worker is also denied entitlement to a full rather than partial FEL award for reasons stated above.

15 Page: 14 Decision No. 1396/15 DISPOSITION [87] The worker's appeal of the May 31, 2013 decision of ARO Carney is allowed in part. The worker is allowed a redetermination of her NEL award for her bilateral wrist condition, for reasons discussed herein. [88] In all other respects the decision of the ARO is upheld. The worker's other appeals arising out of that decision are denied as set out above in these reasons. DATED: July 20, 2015 SIGNED: J. Josefo