SUMMARY. Significant contribution (of compensable accident to psychological condition).

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1 SUMMARY DECISION NO. 332/95 Significant contribution (of compensable accident to psychological condition). The worker appealed a decision of the Hearings Officer denying entitlement for chronic pain which the worker claimed was related to an accident in 1990 when he hit his head. There were other significant non-compensable events in the worker's life. He fled his home country and sought refugee status, he hit his head while working illegally in 1985, he had non-compensable surgery to remove a cyst. The Panel found that the compensable accident contributed to the worker's overall condition but was not a significant contributing factor. The appeal was dismissed. [8 pages] PANEL: McCombie; Jackson; Howes DATE: 20/09/96 WCAT DECISIONS CONSIDERED: Decision No. 318/90 (1992), 23 W.C.A.T.R. 100 refd to

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 332/95 This appeal was heard in Toronto on May 10, 1995, by a Tribunal Panel consisting of: N. McCombie : Vice-Chair, G.M. Howes : Member representative of employers, F. Jackson : Member representative of workers. THE APPEAL PROCEEDINGS The worker appeals the decision of Hearings Officer G. McCaffrey, dated June 30, That decision concluded that the worker did not have entitlement for a chronic pain disability and that temporary benefits were appropriately closed as of July 15, The worker appeared and was represented by R.D. Telford, a lawyer. The accident employer indicated that it would not be participating in the hearing. R. Thaper attended to translate in the Punjabi language. THE EVIDENCE The Panel considered the material included in the Case Description prepared by the Tribunal Counsel Office (Exhibit #1). In addition, we considered one Addendum at the time of the hearing (Exhibit #2), reports from Dr. G.S. Kainth submitted by Mr. Telford at the hearing (Exhibit #3) and an Addendum of information gathered after the hearing (Exhibit #4). The Panel also heard oral evidence from the worker. It was clear at the time of the hearing that further evidence would be required, so there were no oral submissions. Mr. Telford made written submissions by letter dated December 22, THE ISSUES It is the worker s position that, and the Panel must decide whether, he continued to be disabled subsequent to July 15, Mr. Telford submits that this disability is as a result of his compensable accident of April 3, 1990, and falls into the mixed pain category with elements of both organic and psychotraumatic pain. THE PANEL S REASONS (i) Background (a) The pre-injury condition On November 15, 1989, the worker was admitted to the Etobicoke General Hospital with a history of headache and dizziness. It was determined that he had a right posterior lobe cystic lesion. He was transferred to the Mississauga Hospital where, on November 17, 1989, neurosurgeon Dr. R.G. 1

3 Vanderlinden operated on him. This operation was for the removal of a right temporal lobe cystic lesion. It was determined that the cause of the cyst was a cysticercosis ; that is, a tapeworm. Dr. Vanderlinden noted that a week after the surgery, the worker became drowsy with increased headache. These symptoms cleared with medication. On December 5, 1989, Dr. Vanderlinden reported that the previous night the worker felt vertigo with heavy eyes and a little headache. He did not think he could see very well. On January 25, 1990, the worker again saw Dr. Vanderlinden and reported feeling somewhat better, but still complained of weakness and giddiness. He finds it hard to concentrate and says his eyes are sore. He has some pain and coldness about the left occipital [the back part of the head] incision. At that time Dr. Vanderlinden suggested that some of his symptoms may be psychogenic in origin, and that the worker should return to work within the following three or four weeks. On March 7, 1990, there is a report from Dr. R.S. Yufe, another neurologist who had seen the worker at the Etobicoke Hospital. He had been doing well until a few weeks ago when apparently he suffered a seizure and was taken to Humber Memorial Hospital. He was with friends at the time and was described as being somewhat confused and then went into a tonic clonic [a grand mal epileptic] fit. The worker was complaining of oozing from the site of the operation. As part of the post-hearing evidence, the Panel received a report from Dr. S. Basi, a family doctor, dated August 15, Dr. Basi indicates that he first saw the worker in May Prior to the hospital admission in November 1989, the worker was seen once, in November 1987, for dizziness and headache. Dr. Basi saw the worker on a number of occasions between the time of the operation and his return to work in March. These visits were reported in much the same way as is recorded by Dr. Vanderlinden. The last pre-injury visit to Dr. Basi was on March 15, At that time he had no symptoms and he was taking his medication. There was also reference in the material to a 1985 work-related accident. The worker testified that at this time he was working illegally and that a workers compensation claim was not filed. This injury also involved a blow to the head after falling down some stairs. In a report dated November 7, 1990 from the WCB s Downsview Rehabilitation Centre, it is indicated that at that time, the worker was unconscious for 20 minutes. At that time, apparently blood was issuing through the nose and mouth. He subsequently developed headaches and dizziness, and it is his understanding that he developed a blood clot which was subsequently treated by the 1989 craniotomy. This blood clot, as we have noted above, was in fact diagnosed as a cysticercosis, and there is no suggestion that it was related to a blow to the head. 2

4 (b) The compensable accident The compensable accident took place on April 3, The initial Employer s Report of Accident, dated April 4, 1990, indicated that the worker was working under a container welding, walked out and hit his head. The area of injury was indicated as the top of head. The initial diagnosis provided on the Doctor s First Report, completed by Dr. T. Saeed, was head and neck injury. Dr. Saeed noted the previous surgery, but was of the opinion that the worker had recovered by the time of accident. Entitlement was granted by the WCB and lost time benefits paid until July 15, At that time his benefits were terminated as it was felt by the WCB that the worker was capable of a return to his regular, pre-accident work. In a decision dated October 4, 1991, the Board indicated that, based upon the view that the worker was capable of returning to his pre-accident job, there would be no future economic loss ( FEL ) award. The worker attempted a return to work with the accident employer for approximately one week in September The worker had a note from Dr. Saeed recommending lighter job initially, but the worker testified that, in fact, he returned to his regular work. He stated that he was unable to continue and that he left and did not return to the accident employer. He stated that, after this, he did work for a period of time at a gas station for two or three weeks. He testified that this job pumping gas was for hours per day and that he worked there for two or three weeks until he was laid off. He indicated that he did not think that he could do that sort of a job. The worker testified that since that time he has looked for work elsewhere, but has not been successful. (ii) The medical evidence Mr. Telford is arguing that, as a result of the compensable accident, the worker is suffering from a mixed pain disability; an organic component manifested with his ongoing headaches, a psychotraumatic disability and psychogenic pain. Mr. Telford suggested that the worker was entitled to an organic award for his post-concussive headaches and, in addition, that the worker should be rated at the upper end of Category 4 of the WCB s Psychotraumatic and Behavioural Disorders Rating Schedule. Category 4 is listed as severe impairment of total person (60% - 80%) and reads: In this category, the worker clearly displays a chronic and severe limitation of adaptation and function in the home and outside environment. The worker is withdrawn, forgetful, unable to concentrate, and needs continuous emotional support within the family setting. The worker is incapable of self care and neglects personal hygiene. There may be an obvious loss of interest in the environment and the worker becomes extremely irritable, showing significant emotional liability [sic], changes of mood and uncontrolled outbursts of temper. The worker may be severely depressed with outstanding features of 3

5 psychomotor retardation and psychological regression. The worker is usually homebound or even roombound. Since the time of the accident, the worker has seen a number of doctors. These doctors have included three general practitioners (Dr. Saeed, Dr. Basi and Dr. G. Kainth), three neurologists (Dr. Yufe, Dr. M.S. Zaitlen and Dr. V. Bril), four psychiatrists (Dr. M. Aziz, Dr. R.C. Jain, Dr. M.L. Joshi and Dr. D.E. Payne), an ear, nose and throat specialist (Dr. J. Haight) and a physiatrist (Dr. P.J. Kirwin). Exhibit #4 consists of a number of medical reports obtained from some of these doctors after the hearing. Also, as is noted above, for three weeks in November 1990 the worker was admitted to the WCB s Downsview Rehabilitation Centre, where he was reviewed by a number of medical professionals. There is virtually no medical evidence to support a conclusion that the worker suffered serious organic damage as a result of his compensable accident. Dr. Yufe (October 25, 1993) noted that the compensable accident appeared to have triggered complaints of headache, blurry vision, dizziness, neck pain and ringing in the ears (tinnitus). However, the cause is felt to be a psychogenic etiology and unrelated to any intercranial lesion. One can only speculate that had [the worker] not had to undergo a craniotomy in 1989, the head injury in 1990 may not have caused such a prolonged post-traumatic syndrome. Dr. Yufe went on to give an opinion that, in his view, the entire problem was a result of preexisting personality traits and psychosocial factors. Dr. Bril (October 23, 1991) suggested that, It is uncertain to me if he ever suffered a concussion, but he may well have a post-concussion syndrome. In any event, his symptoms are well controlled when he takes the appropriate medication. Dr. Bril, in her response to the Tribunal s enquiries, dated September 26, 1995, added that at the time that she saw him, she thought that the worker would be able to work normally. The general practitioners involved merely record the worker s complaints and do not provide any organic explanation to for them. This leads us to the question of whether there are non-organic factors at work and, if so, whether the compensable accident was a significant contributing factor in causing or aggravating those factors. As we have noted, since 1990 the worker has been seen by four psychiatrists. In addition, he was seen at the Downsview Rehabilitation Centre by a WCB psychiatrist as well as a psychologist and a social worker. The psychiatric consultation at the Downsview Rehabilitation Centre was carried out by Dr. G.H. Darby, whose report, dated November 20, 1990, notes that the worker was convinced of his head injury being the cause of his problems. Dr. Darby concluded: This patient presents with a rather confusing picture because he is such a poor historian. There are somatoform aspects to his presentation and there are also indications that there are significant failures in his ability to 4

6 maintain good social relations and that he is happier to blame his accident and himself for what is a rather failure prone lifestyle. So, with respect to the accident history, Dr. Aziz s report, dated July 11, 1995, suggests that the 1985 accident was the major event. There is then a reference to the onset of the condition that was ultimately diagnosed as the cysticercosis. There is no mention in Dr. Aziz s report of the April 1990 accident. Dr. Aziz, who only saw the worker one time in August 1992, did not detect any evidence of a major psychiatric disturbance, although he was concerned about his social and workers compensation status. Dr. Jain saw the worker several time during the three month period from the beginning of September to the end of November Dr. Jain noted, in his report dated August 9, 1995, that the worker s self-esteem was low and that he was preoccupied with pain symptom in neck and low back. It is not clear what history was given to Dr. Jain. He was of the opinion that the three significant contributing factors to the worker s complaints were the unsuccessful attempts to return to work, the April 1990 head injury was perceived by him as overwhelming and triggered a psychological reaction, and a possible contribution due to the brain surgery in Dr. Joshi was the psychiatrist who treated the worker the longest, seeing him between March 1991 and, on a fairly regular basis, until October He again began seeing Dr. Joshi at the beginning of May 1995 and attended every two weeks since. Dr. Joshi s understanding of the history and his opinions are outlined in his report to the Tribunal dated July 13, He noted, under previous history, the grand mal seizure in November 1989, and was aware of the exact nature of this operation. The worker denied any history of emotional illness prior to the April 1990 accident. Dr. Joshi notes that the worker pinpoints the 1990 accident as the source of his problems. The complaints were of severe headache, problems with vision, loss of concentration, dizziness, ringing in the ears, loss of power in the body, unable to concentrate, poor memory, sadness and overall he was found unable to function at that time. Dr. Joshi s conclusion was that, as he believed that the worker was functioning fairly well prior to the accident of April there certainly appears to be a connection between the accident and his present problems. There is one other psychiatric report, that from Dr. D.E. Payne, dated May 11, The evidence concerning the worker s non-occupational life, evidence that was not referred to by any of the other doctors and we must assume, was unknown, is that the worker is a refugee claimant. It was for this reason that he was working illegally in Dr. Payne s report was in respect to the worker s claim for refugee status. The history given in this report, concerning events in Canada is that the worker hit his head on a tail gate of a truck, apparently some time in 1985 and that he was subsequently operated on for a blood clot in his head. Several months later he re-injured his head at work, again on the right side where he had had his first injury. According to Dr. Payne s understanding, it was since the re-injury that the worker suffered from headaches and marked problems with his memory and concentration. This report, however, also deals with the worker s concerns about his refugee claim. The worker gave a history of political activity in India and that he had been detained and beaten on two 5

7 occasions for distributing pamphlets. For this reason he left India and sought refugee status in Canada. Dr. Payne refers to this history, as given by the worker. He reported that his symptoms become much worse when he has to remember and talk about his experiences in India. At this time he suffers from increased pain in his head, neck and eyes, and his memory becomes so poor that he forgets everything. He believes that if he were to return to India he would be persecuted by the authorities. He reported that his mother s sister s son has been killed and that a cousin on his father s side of the family was detained and beaten until a bribe was paid for his release. If he were returned to India he would not have the level of medical care which he requires as the level of medical care in his area is very poor... On examination he presented as a tense 38 year old man who appeared to be under great emotional strain when attempting to talk to me about his experiences in India. Dr. Payne did conclude that the worker s difficulty with memory and concentration are consistent with the effect of a head injury with brain damage. (iii) The Panel s conclusions It is clear that there are a number of different areas of emphasis in the stories presented by the worker in this case. As a result, it is extremely difficult to determine the significance of the compensable accident in the development of an emotional condition that we accept is a debilitating one. What is striking is that the various health care providers were not aware of the whole picture. So, the operation in November 1989, which turned out to be a fairly routine and innocuous procedure, was presented by the worker as brain surgery. And some of the doctors were aware of a 1985 blow to the head, others were not. What is also particularly striking is that no-one, apart from Dr. Payne was made aware of the worker s purported experiences in India. It strikes this Panel that political persecution and police beatings to the point of fear for one s life should be considered as emotionally significant experiences. Dr. Payne In summary, while there is a variation in emphasis, the evidence before us is that the worker underwent at least four significant events: the fleeing of his home country and seeking of refugee status; a blow to the head in 1985, while working illegally (there are no medical reports concerning this accident, and the various histories given suggest that this was anywhere from a major event to a fairly innocuous one); the brain surgery carried out in November 1989; the compensable accident of April In considering these events, the Panel accepts that the April 1990 accident contributed to the overall picture, but we cannot accept, given the other events, that it was a significant factor. Mr. Telford argues the thin skull of this worker literally and his frail spirit must be taken into account. We agree that these are important considerations which must be weighed in workers compensation cases. However, we also note, as addressed in Decision No. 318/90 (1992), 23 W.C.A.T.R. 100, 6

8 that there is a point at which the thin skull/frail spirit was so large a factor in causing the subsequent disability that it reduced the role of the work accident to insignificance. Given the nature of the accident in this case, and the significance of the non-compensable factors, we must conclude that the compensable accident s role was a minor one. There was a short term, acute period after the accident, at which time immediate impact of the accident was more significant. The WCB recognized this by awarding benefits until July We find that the complaints subsequent to this, however, were far more related to the various non-compensable factors, to the extent that they, reduced the role of the work accident to insignificance. THE DECISION The appeal is denied. DATED: September 20, 1996 SIGNED: N. McCombie, G.M. Howes, F. Jackson 7