WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2769/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2769/15 BEFORE: R. Nairn : Vice-Chair A.D.G. Purdy : Member Representative of Employers R.W. Briggs : Member Representative of Workers HEARING: December 14, 2015 at Kitchener Oral DATE OF DECISION: March 4, 2016 NEUTRAL CITATION: 2016 ONWSIAT 577 DECISION(S) UNDER APPEAL: WSIB ARO decision dated August 22, 2013 APPEARANCES: For the worker: For the employer: Interpreter: P. Mancini, Paralegal Did not participate G. Abraha, Tigrinyan language 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. 2769/15 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a machine operator in the accident employer s manufacturing business. Born in 1962, the worker started with the employer in [2] On March 3, 2008, the worker injured his low back when he slipped on ice and fell on his way into the workplace. He sought medical attention and the Health Professional s Report (Form 8) provided a diagnosis of MSK back pain. [3] The WSIB (the Board ) recognized the worker s low back strain as compensable and he received various periods of Loss of Earnings ( LOE ) benefits. According to the decision on appeal, the worker returned to modified duties for a while and received chiropractic and physiotherapy treatment. He eventually returned to his regular job on about June 25, 2008 and continued working until he was laid off as a result of a work shortage on August 18, [4] The worker continued to complain of pain in his low back after his layoff and as a result, in October 2008 he was referred for assessment at the Board s Regional Evaluation Center. In the October 29, 2008, report which followed that assessment, Dr. S. Iwan (Neurosurgeon) provided diagnoses of 1. Cervical spondylosis (multilevel); 2. Lumbar spondylosis (mild L4- L5 disc protrusion); 3. Lumbar discogenic back pain; 4. Lumbar strain; 5. Chronic myofascial pain syndrome. Dr. Iwan also noted that when the worker returned to work, his precautions would include limit forward bending, limit lifting (level not determined), carrying, pushing, pulling, reaching and he should have the ability to change positions frequently. [5] As noted in Memo #42 of February 18, 2009, after reviewing the results of the REC assessment, the Claims Adjudicator concluded noting his pre-injury job duties exceed what are likely to be permanent restrictions, his injury would be a barrier to finding work elsewhere and he is entitled to be paid full LOE benefits under the long-term layoff policy. Given the conclusion of the Claims Adjudicator, the worker was granted full LOE benefits effective November 17, [6] On April 17, 2009, the worker was assessed at a WSIB Specialty Program Functional Restoration Program. In the report which followed that assessment, Dr. K. Ibrahiem (consulting physician) provided a diagnostic impression of Chronic Pain Disorder associated with both Psychological Factors and a General Medical Condition and Symptoms of Depression. The worker was discharged from the Functional Restoration Program on July 24, 2009 and the diagnoses at that time remained the same as the initial assessment. [7] The worker returned to the Functional Restoration Program on October 14, 2009 for a booster session and in a report which followed that assessment, Dr. A. Ebrahimian (Psychologist) indicated: In conclusion, [the worker] reported that he continues to experience pain since attending the program. He identified a number of pain management strategies that he was using to assist him in managing his pain. In addition, he sees a psychiatrist in the community at a frequency of once every other week. [8] Subsequently, having recognized the worker s low back condition as compensable, entitlement was extended to include Chronic Pain Disability ( CPD ). As noted in Memo #73 of

3 Page: 2 Decision No. 2769/15 August 24, 2010, having accepted CPD entitlement, the Board made arrangements for the worker to be assessed for a Non-Economic Loss ( NEL ) award. [9] At approximately the same time, the Board, being of the view that the worker would be unable to return to his pre-accident employment, provided him with Labour Market Re-Entry ( LMR ) services. In Memo #75 of September 20, 2010, a Board Adjudicator noted: Prior to determining if the worker should be on full benefits to age 65, it was felt that an 8 week program of ESL should take place to determine if his language skills can improve, to determine if further LMR would be needed. The worker started his training for ESL on 03-Aug-2010 and this would end on 24-Sep The worker then pulled himself out of school on 31-Aug-2010 and has not returned. ( ) In conclusion: 1. The worker was sent to ESL training to determine if he would be employable. 2. The worker] did not cooperate in his classes. 3. The amount of time he missed from school, and it does not seem that he is interested in developmental skills. 4. The medical on file does not support totally disabled, noting that the worker had access to tools to help him while in class. Action required: Send all workplace parties a letter stating that LOE benefits would be reduced to partial LOE based on minimum wage of a potential SEB of elemental service worker which would be reasonable if he would upgraded his English skills and cooperated in LMR and schooling. Benefits will be adjusted seven days from the date of the letter being sent. [10] As noted in Memo #86 of August 3, 2011, the worker was granted CPP disability benefits from approximately July 8, [11] On November 7, 2011, the worker was examined by Dr. J. Nagy (Psychiatrist) for the purposes of his NEL assessment. In the report which followed that assessment, Dr. Nagy provided an Axis I diagnosis of Chronic Pain Disorder associated with psychological factors and a general medical condition; Major Depressive Disorder chronic and related to injury. Dr. Nagy concluded: [The worker] meets the criteria for a Class 4 marked level of impairment. He experiences a very high level of chronic pain which is gradually becoming worse and does not respond well to any type of treatment or pain management techniques. [The worker] has also had some decline in his cognitive functioning, although this is not yet severe. For the most part though, he is completely absorbed by him pain in his attempts to cope with it throughout the day. This limits his activity to the point where he no longer really participates in the management of the household. His psychological state is characterized by chronic depression, irritability, anger outbursts, severe sleep disturbance and depression. [The worker] requires assistance with personal care and he does not really engage even in distraction activities. He does have a very limited social life, and this seemed to be important to him.

4 Page: 3 Decision No. 2769/15 Unfortunately, [the worker] has not responded to any type of intervention to this time. [12] Information on file suggests that in January 2012 (before the quantum of the worker s NEL award was actually determined), the employer provided the Board with some surveillance evidence taken of the worker over a period of five days in October A Board Case Manager reviewed the surveillance material and in Memo #95 of February 7, 2012, indicated CPD entitlement to be denied. I am not disputing the existence of pain, but claims of marked life disruption are not congruent with demonstrated behavior when not presenting self for claim related entitlement. The Case Manager also confirmed that the worker had no entitlement for his neck nor for a psychotraumatic disability. With the reversal of entitlement to CPD, the Board created an overpayment. [13] The worker objected to the Board s decision to reverse his entitlement for CPD and alternatively, with a decision to terminate his entitlement on an organic basis as of October 11, These issues were eventually forwarded to an Appeals Resolution Officer ( ARO ) and in a decision dated August 22, 2013, the ARO denied the worker s appeal. With respect to the issue of CPD entitlement, the ARO concluded: The worker continued to maintain that he was unemployable as he was in a significant amount of pain. However, I find that the evidence provided in the surveillance tape and reports are significantly different than his subjective complaints to various doctors, and in particular to the psychologist who assessed him on November 7, 2011 for the purpose of a NEL assessment. At that time the subjective complaints were of such significance that the psychologist classified him as having Class 4 impairment. In order to determine that the chronic pain is caused by the work injury, there must be evidence of continuous, consistent and genuine complaints of pain since the time of injury. I find that the surveillance reports provide strong evidence that the worker s pain symptoms were not genuine. Accordingly, the worker s claim for benefits under the CPD policy is denied. [14] The ARO also denied the worker ongoing entitlement on an organic basis concluding: My own review would support that the worker did not suffer a permanent physical or functional neck abnormality from this minor accident and the objective findings documented on the MRI are the result of a non-compensable condition. ( ) Having regard for the above, I conclude that the objective findings documented in the MRI study are not related to his minor March 3, 2008 work injury. Rather, I find these findings to be a non-occupational condition. As a result, ongoing entitlement, including the recognition of a PI for this back condition is also denied. [15] The ARO concluded that as the worker does not have ongoing entitlement for either an organic or non-organic condition, he is not entitled to any additional LOE benefits. (ii) Issues on appeal [16] The issues to be determined in this case are: 1. Whether the worker ought to be granted initial entitlement for CPD which he claims can be related to the compensable accident of March 3, 2008;

5 Page: 4 Decision No. 2769/15 2. Whether, in the alternative, the worker ought to be granted ongoing entitlement on an organic basis for his neck and low back; and 3. Whether the worker is entitled to ongoing LOE benefits beyond October 11, (iii) The worker s testimony [17] The worker, along with the Panel and his representative, had the opportunity to review the DVD containing the surveillance evidence provided to the Board. The worker acknowledged that he was in the surveillance video and did not dispute its accuracy. He did testify however, that the surveillance covered his activities for only a very short period of time (about 19 minutes) over the course of five days. He testified that with the assistance of pain medication, he is able to undertake various activities for short periods of time. [18] The worker confirmed that he has not worked since being laid off by the employer in He has not felt capable of even looking for work because of his continuing pain. The worker testified that in addition to experiencing pain in his low back, he also experiences pain in other parts of his body which may differ from day-to-day. He might experience pain in his neck, upper back and down into his legs. He confirmed that he has been granted entitlement for CPP disability. [19] The worker lives in an apartment with his wife and a 20-year-old son. There is very little the worker can do around the home. He takes naps on a daily basis because of his fatigue. His medication, which includes Percocet, Nortriptyline and Gabapentin, frequently leaves him dizzy and requires him to rest. He is able to drive but only does so for short distances. Occasionally he will leave the home to go for a walk or visit a coffee shop. [20] The worker had surgery performed on his low back on April 30, 2014 by Dr. G. Moammer. Dr. Moammer performed a L4 laminoplasty, L5 laminotomy, L5 left foraminotomy, L4-L5 left partial facetectomy. The worker testified that the surgery did not improve the level of his pain and his medication intake remained about the same after the surgery. (iv) Analysis (a) Entitlement to CPD [21] Since this worker was injured in 2008, the applicable legislation is the Workplace Safety and Insurance Act, 1997 ( the WSIA ). [22] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies in this case is Operational Policy Manual (OPM) Document No entitled Chronic Pain Disability. This policy provides that in order for CPD entitlement to be granted, five criteria must be satisfied. The evidence must establish that a work-related injury occurred, that the CPD is caused by the injury, that the pain persists six or more months beyond the usual healing time of the injury, that the degree of pain is inconsistent with organic findings and that the CPD impairs earning capacity.

6 Page: 5 Decision No. 2769/15 [23] Reviewing the medical evidence before us, the Panel accepts there is a general consensus that this worker is suffering from CPD. This diagnosis was made as early as the October 29, 2008 report from the Regional Evaluation Center in which Dr. Iwan provided a diagnosis of Chronic Myofascial Pain Syndrome. That diagnosis has been repeated in the subsequent medical reporting. For example: In the April 17, 2009, Functional Restoration Program report, Dr. K. Ibrahiem provided a diagnostic impression of Chronic Pain Disorder associated with both psychological factors and a general medical condition. In a report dated June 26, 2009, Dr. R. Surapaneni (Psychiatrist) provided an Axis I diagnosis of 1. Chronic Pain Syndrome, 2. Major Affective Disorder Depression. In the CPP disability medical report dated September 10, 2009, Dr. D. Richardson (General Practitioner) provided diagnoses of cervical, thoracic, lumbar dysfunction; chronic pain; depression. In a report dated April 15, 2010, Dr. Surapaneni noted that this patient is on treatment for chronic pain syndrome and depression. In her NEL assessment report of November 7, 2011, Dr. Nagy provided an Axis I diagnosis of Chronic Pain Disorder associated with psychological factors and general medical condition; Major Depressive Disorder, chronic and related to injury. In a report dated April 20, 2012, Dr. Surapaneni provided an Axis I diagnosis of 1. Chronic Pain Syndrome; 2. Major Affective Disorder and Depression. In a report dated June 20, 2013, Dr. Richardson advised that his pain has generalized and has spread throughout the body consistent with fibromyalgia. Also he continues to experience depression and is under the care of Dr. Surapaneni, Psychiatrist. In a report dated June 8, 2015, Dr. Surapaneni noted this is considered a Chronic Pain Syndrome with a very little chance of improvement. [24] With respect to the specific requirements of Board policy, there is no dispute in this case that a work-related injury occurred. The Board recognized the March 3, 2008, accident as compensable and the worker received various periods of LOE benefits and the worker was assessed for a NEL award. [25] The Panel is also satisfied that the pain the worker has experienced has persisted for six or more months beyond the usual healing time for what was initially accepted as a lumbar strain. The initial Health Professional s Report of March 5, 2008, which had provided a diagnosis of MSK back pain, had indicated that there were no limitations imposed by the accident and that the worker did not require a follow-up appointment. [26] The Panel is also prepared to accept that the pain the worker is experiencing is inconsistent with the organic findings accepted in this claim. As indicated above, this claim was initially accepted as a lumbar strain and the worker has testified that he experiences constant pain

7 Page: 6 Decision No. 2769/15 not only in his lower back but also pain which moves around his body and might be present in his upper back, neck and down his legs. An MRI of the worker s lumbar spine performed on May 7, 2008, revealed a small L4-L5 disc protrusion abutting the traversing left L5 nerve root. [27] The Panel is also prepared to accept that the CPD has impaired the worker s earning capacity. The worker has testified that he has felt incapable of even looking for work since being laid off in His testimony is consistent with the fact that he was subsequently granted CPP disability benefits. In a report dated June 20, 2013, Dr. Richardson had indicated that: I believe that [the worker s] impairments are both severe and prolonged. There is very minimal chance of recovery such that he will return to work. The prognosis for chronic pain disorder such as fibromyalgia is generally poor. [28] In her NEL assessment report of November 7, 2011, Dr. Nagy described the affects which the worker s pain had on his activities of daily living. She noted that for the most part though, he is completely absorbed by his pain and his attempts to cope with it throughout the day. Dr. Nagy concluded: This limits his activity to the point where he no longer really participates in the management of the household. His psychological state is characterized by chronic depression, irritability, anger outbursts, severe sleep disturbance and depression. [The worker] requires assistance with personal care and he does not really engage even in distraction activities. He does have a very limited social life, and this seemed to be important to him. [29] Dr. Nagy s comments in her November 7, 2011, report were consistent with the testimony provided by the worker at this hearing. [30] As noted earlier in this decision, the Board initially accepted that the worker was entitled to benefits for CPD and arranged for him to be assessed for a NEL award. He was also offered LMR assistance with the Board being of the view that his chronic pain made it unlikely he would be able to return to his pre-accident employment. The Board subsequently reversed that decision however, after reviewing the surveillance evidence provided by the employer. The Board concluded that CPD entitlement ought to be denied, because what was depicted on the surveillance evidence was inconsistent with the limitations described by the worker to his physicians. [31] At the hearing, the Panel had the opportunity to review the video surveillance evidence. This evidence consists of about 19 minutes of surveillance conducted over a five day period October 11, October 12, October 13, October 18 and October 19, Much of those 19 minutes involve surveillance taken of the worker standing in a parking lot, leaning against his car, smoking and speaking to friends. There is also video of the worker performing activities like getting in and out of his car, walking up some steps and carrying a pillow in a bag for his wife. In our view, the surveillance evidence in this case is not strong enough to refute or undermine the opinions provided by the worker s healthcare professionals. In this case, as Mr. Mancini noted in his submissions, the Board accepted that the worker would be capable of performing minimum wage work. The Board did not suggest the worker was incapable of any and all activity. We find that this surveillance evidence is not persuasive so as to justify rejecting the opinions provided by virtually all of the worker s treating healthcare practitioners that this worker has been left with CPD as a result of his compensable accident. The worker has had this

8 Page: 7 Decision No. 2769/15 condition for some time now and we find his compensable CPD condition is permanent. He is entitled to a NEL determination. [32] We find that the Board s initial adjudication of this claim was correct and that the worker ought to retain the CPD entitlement previously granted to him. This includes his entitlement to LOE benefits and a NEL determination. [33] Having granted the worker entitlement for CPD, it is unnecessary for us to deal with the alternate argument about entitlement being granted on an organic basis. (b) Ongoing LOE benefits after October 11, 2011 [34] Section 43 (1) of the WSIA provides that workers who have a loss of earnings as a result of a compensable injury are entitled to receive LOE benefits until that loss of earnings ceases. [35] In this case, the Board had initially granted the worker entitlement to LOE benefits however that entitlement ceased on October 11, 2011, when the CPD entitlement was revoked. As noted above, the Panel has found that the worker ought to retain his entitlement to CPD and therefore we find that his LOE entitlement should not have been terminated as well on October 11, We find the worker had a loss of earnings after October 2011 under section 43 (1) of the WSIA. The issue of the exact duration and quantum of those benefits is returned to the Board for further adjudication.

9 Page: 8 Decision No. 2769/15 DISPOSITION [36] The worker s appeal is allowed. [37] The worker has initial entitlement to CPD related to the accident of March [38] The worker is entitled to a NEL determination for his compensable CPD condition. [39] The worker has a loss of earnings arising from his injury after October 11, The quantum and duration of benefits is remitted to the Board for determination. DATED: March 4, 2016 SIGNED: R. Nairn, A.D.G. Purdy, R.W. Briggs