WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1875/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1875/14 BEFORE: J. Noble: Vice-Chair HEARING: October 9, 2014 at Toronto Oral DATE OF DECISION: January 5, 2015 NEUTRAL CITATION: 2015 ONWSIAT 8 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated November 12, 2012 APPEARANCES: For the worker: For the employer: Interpreter: L. Tzatzanis, Paralegal Not participating None 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. 1875/14 REASONS (i) Issues [1] The issue to be decided in this appeal is whether the worker should have entitlement for a Psychotraumatic disability, including entitlement for a permanent impairment assessment for Psychotraumatic disability. (ii) Background [2] The worker was employed as an apprentice plumber and on April 30, 2007 the worker sustained a right shoulder injury while carrying a pipe. The diagnosis was right shoulder dislocation. [3] The worker underwent three surgical procedures on the right shoulder and the surgeries occurred in 2008, 2009 and [4] The employer was granted 90 percent Second Injury and Enhancement Fund (SIEF) cost relief in the claim, on the grounds that the worker had a prior shoulder dislocation. [5] The Board determined that the worker had a permanent impairment in the right shoulder, and the worker was seen for a Non-Economic Loss (NEL) assessment for the condition: Right Shoulder: Swelling; Crepitation; Revision Arthroscopy; With Anterior Stabilization, and for Right Shoulder: Dislocation & Surgery. In a letter to the worker dated April 20, 2010, the Board advised that the NEL award was rated at 20 percent. [6] The worker requested entitlement for Psychotraumatic disability. The Board denied the request. In a decision dated April 17, 2012, the Board Case Manager stated that entitlement for Psychotraumatic disability was denied, and stated: I am responding to a letter provided by your representative of April 5, 2012 of which a request for review regarding entitlement to Psychotraumatic disability, associated Health Care Benefits and 10 to 12 sessions of treatment with the treating psychiatrist be addressed. I have reviewed the March 29, 2012 report of Dr. William Look Hong along with information contained in your claim. It should be noted that the psychotherapist s report of August 18, 2011 indicates that you had been on Paxil for ten years and previously completed a CBT group at the [Hospital] a number of years ago. Psychological entitlement remains limited to the initial six treatment sessions prescribed. There remains to be no entitlement to ongoing treatment sessions. In addition, it appears that you had previously obtained treatment to [sic] this prior to your work related injury. Therefore, psychological treatment was limited; there is no entitlement to Psychotraumatic disability. [7] The worker appealed to the ARO. [8] The ARO decision under appeal dated November 12, 2012, considered the issue of whether the worker should have entitlement for Psychotraumatic disability. The worker s appeal was denied. The ARO decision dated November 12, 2012 stated: In reviewing the mechanics of the accident and the medical documentation the incident is not viewed as Psychotraumatic, life threatening and though the worker underwent

3 Page: 2 Decision No. 1875/14 surgical procedures in the form of an anterior stabilization of the right shoulder/arthroscopic debridement, there were no complications. Following the second procedure in September 2008, the attending Surgeon noted that the shoulder was stable and in fact, as documented in the report dated April 9, 2009, the surgery was successful by definition of avoidance of dislocation episodes. By all accounts (medical report dated April 18, 2011) the worker was initially assessed for a differential diagnosis of anxiety disorder, depressive disorder, chronic pain syndrome and painful right shoulder. However, in reviewing the medical documentation, there is a 10 year history of anxiety related complaints for which the worker was prescribed medication and was involved in group therapy. Reviewing the psychotherapist s report dated August 18, 2011, the therapist recommended exposures therapy which would help him get used to the physical sensations which occur when he is feeling anxious or panicky. Essentially the worker s symptoms are a continuation of the ongoing anxiety disorder he has experienced since the age of 19, for which he attended group therapy and was taking medication. Though acknowledging the worker was extended six psychotherapy sessions, this was extended primarily to assist the worker to cope with his anxiety and in turn be beneficial in his Work Transition program. Simply because a physician references depression and or anxiety, this does not constitute sufficient evidence on which to find the worker suffers from a psychological disability as a result of the compensable accident. The Appeals Resolution Officer acknowledges the report from the Psychiatrist dated March 29, 2012, however, one cannot disregard the prior condition (anxiety) for which the worker has been under treatment for approximately 10 years and by the worker s own admission (Work Transition Specialist report dated October 29, 2012) also suffers from Seasonal Affective Disorder. Conclusion In the judgment of the [ARO] considering the work accident which was neither life threatening nor Psychotraumatic, the nature of his injury does not readily explain the ongoing self report of anxiety/depressive disorder. The condition did not manifest from the work injury, but rather, pre-dated the injury. In fact, there was a pre-existing history of dislocations involving the shoulder. Under the circumstances, there is no basis for the granting of Psychotraumatic disability. [9] The worker appeals this decision to the Tribunal. [10] In the final LOE decision dated November 27, 2013, the Board Adjudicator stated that the worker had completed the Work Transition program, with the Suitable Occupation (SO) target of Occupational Health & Safety Officer/Clerk/Technician. The decision stated: I reviewed the earnings information you submitted along with the health (medical) and employment information in your claim file. You remain unemployed. The entry level wages in your field are $20.00 per hour based on a 40 hour work week. Therefore effective November 25, 2013 your [LOE] benefit entitlement will be $ per week. This amount will be locked in (not reviewed) until your 65 th birthday, at which time the LOE will stop. (iii) Testimony [11] The worker testifies that before the first shoulder surgery in 2007 he was advised that he would have a good recovery, and he tried to return to modified duties. The worker states that he had constant pain and less movement in the shoulder, and the pain bothered him while he slept and so he saw a doctor.

4 Page: 3 Decision No. 1875/14 [12] The worker states that the prognosis for recovery after the second surgery of 2008 was good, but he did not return to work after that surgery because the WSIB told him not to, and then he was sent for retraining. [13] The worker states that he had his third shoulder surgery in October of 2010, and between 2008 and 2010 he was in the WSIB retraining program. The worker states that he needed the third surgery because he had even more pain than after the first surgery. The worker states that the doctor would not give a prognosis for recovery before the third surgery. [14] The worker states that he had a new MRI on Monday October 6, 2014, and he is seeing the surgeon next week and there is a chance that another surgery will be recommended because he was told he may have torn the rotator cuff somehow. [15] The worker states that he started seeing the psychiatrist Dr. Look Hong in He states that he was feeling alright at first when he thought he was returning to work, but once the WSIB told him he could not return to work after the second surgery that put him in a downward spiral, and he does not like to stay home. The worker states that he felt depressed and he stayed in his parents basement and did not go to family functions, and he kept feeling worse, so he had to see Dr. Look Hong. [16] The worker states that in April of 2007 he lived with his parents, and he moved out in around 2010 when he was 28 years of age, and moved into his brother s house. He states that he tried to live on his own, but he stayed there about 10 months, and then moved back in with his parents in The worker states that he lives there in the basement now, and the reports that he lives with his brother are incorrect. [17] The worker states that he lost a lot of money as a result of the injury because he would have been a plumber, and would have earned a lot of money. The worker states that when he had the injury in 2007 he was near the end of the first year of the five-year apprenticeship. [18] The worker states that prior to the accident he did not have problems with concentration or memory, as noted in Dr. Look Hong s report dated March [19] The worker states that the first job target that he was training for through the Board was not right for him, because he did not like training to be a social worker. The worker states that they changed his job target to Health and Safety Inspector and he liked that better because at least he was still on the job site. The worker states that he completed the LMR program for Health and Safety Inspector, which included a college program and job search training, and he passed the program. The worker states that the program ended in November The worker states that he has looked for work as a Health and Safety Inspector; however he believes that he did not receive sufficient qualifications from the LMR program, since most employers require that you be a certified safety person, and for that you need 3 years in the field. The worker states that he has not found work in this field. [20] The worker states that his date of birth is October 15, 1981 and he is now 32 years old. [21] The worker states that he agrees with Dr. Look Hong s report dated March 29, 2012, which stated that he was having suicidal ideas. The worker testifies that he was not doing anything and he was taking OxyContin medication. [22] The worker testifies that he had a relationship with a girlfriend and they were planning to marry, but then they broke up because she thought that the worker had no future. The worker

5 Page: 4 Decision No. 1875/14 states that the breakup made his condition worse. The worker states that he has not had a relationship since then. [23] The worker states that he is taking 40 mg of Paxil, 900 mg of Lithium, and 300 mg of Seroquel. The worker states that he was becoming addicted to OxyContin so he went off that in 2010 and got onto medical marijuana. [24] The worker states that he still sees Dr. Look Hong once a month, and he prescribes the medication and does psychotherapy. [25] The worker states that at first seeing Dr. Look Hong was working for him, and then when Dr. Look Hong diagnosed him with bi-polar disorder over a year ago, the worker was devastated. The worker states that this was diagnosed in 2012 or The worker testifies that he was having episodes of mania and then the doctor realized it was a bi-polar disorder. [26] The worker states that he was first diagnosed with a psychological condition in the year 2000 when he was age 19. The worker states that the family doctor diagnosed anxiety at that time, but the worker does not know the cause. The worker states that the family doctor has been Dr. Agate since he was 7 years old in The worker states that the family doctor prescribed Paxil and the worker has been on it ever since he was 19. [27] The worker states that the family doctor did not refer him to a psychiatrist at that time, and at that time he was working as a general labourer in construction. The worker states that he did not miss work due to this condition, or have work problems. [28] The worker states that he saw a counsellor Ms. Van Dyke after a referral from Dr. Look Hong. He states she is a social worker that teaches him techniques of breathing and relaxation. [29] The worker testifies that after the year 2000, the first time he went for therapy was for two months to deal with anxiety, in around He states that his family doctor recommended this group therapy, and he went once a week for 2 months, so he went for 8 classes. The worker testifies that the next time he had psychological treatment was in 2011 with Dr. Look Hong. [30] The worker was asked about documents on file that indicate that there was other treatment for psychological problems between 2001 and [31] The worker was shown a document that indicated that there was an assessment in January of 2006 because the worker was struggling with anxiety, panic attacks and depression. The worker stated that he went there just for Dr. Agate s sake, to make sure he was on the right medication. The worker states that he thinks he just went there once, but he does not recall. [32] The worker was asked about a document that stated that he attended a Group regarding Panic Disorder in The worker states that this was the group therapy that he was talking about. The worker was advised that the treatment notes for this therapy appeared to start in April 2001 and end in June of 2002, and the worker was asked whether he was in the treatment program during that time period. The worker agrees that he was in the treatment program during that time period. [33] The worker was asked about a document from a Mental Health Program outpatient services program dated November 22, 2005, that stated that the worker was referred there for counselling. The worker states that he did go there for one visit, but he did not feel comfortable

6 Page: 5 Decision No. 1875/14 with the counsellor and so he did not go back, as far as he recalls. The worker testifies that he cannot remember what led him to seek a referral for counselling. [34] The worker states that he never saw Ms. Van Dyck prior to the 2007 work accident. [35] The worker was asked about a Medical Assessment form from Dr. Agave, dated April 8, 2002, to a Dr. Shaw that stated that the worker was being referred for an assessment regarding Panic attacks. The worker states that he did not remember what that was about. It was noted that the referral document stated that the worker was seen by Dr. Shaw in 1998 for reactive depression related to a relationship, and the worker responded well to Paxil. The worker states that was because his girlfriend at the time went to the United States for college and he was upset. The worker amended his testimony to state that he did have treatment but he has no idea what it was. [36] The worker was asked about an undated request for assessment for depression and adjustment disorder from Dr. Agate, that stated that the worker was assessed in 1998 with a Major Depressive episode following a relationship break up, and the worker benefitted from counselling, and now was presenting with a similar scenario and that the worker wished to seek counseling as it was very helpful last time. The worker states that he does not recall that counselling, he only recalled the counselling in the group sessions in 2001 or [37] The worker was asked about a document on file from a hospital Mental Health Program dated April 4, 2001, that stated that the worker was seen by crisis in 1998 and treated with Paxil for a Major Depressive Episode, and had a past behaviours of suicide attempts, having overdosed on Tylenol and alcohol. The worker states that he does not recall ever trying to kill himself. The worker states that he was an angry kid, but he does not recall that. [38] The worker s representative asked the worker how he would compare his emotional condition before the 2007 workplace accident to after the accident. The worker testifies that before he was a happy go lucky guy, and now it is different. [39] The worker was asked whether he told Dr. Look Hong that he had previous psychological treatment. The worker states that he did not because he did not even think about it or remember it. The worker states that Dr. Look Hong does not know about his previous treatment as far as he knows, other than he mentioned that he had been for group therapy in around [40] The worker states that before the accident he took Paxil and he continues to take it now. The worker states that Dr. Look Hong also added the medications Seroquel, Ativan and lithium. The worker states that some of the new medication including the Ativan is more for the bipolar condition with the mania. (iv) Law and policy [41] The accident occurred in 2007 and therefore the Workplace Safety and Insurance Act (WSIA) is applicable to this appeal. Section 13 of WSIA is applicable, and provides in part as follows: 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course

7 Page: 6 Decision No. 1875/14 of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. (3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario. [42] Pursuant to section 126 of WSIA, the Board advised that the following Policy Packages (Revision #8) are applicable to this appeal: #9 Psychotraumatic Disability; #107 Aggravation Basis/SIEF; and #300 Decision Making/Benefit of Doubt/Merits and Justice. (v) Conclusions [43] On the issue of whether the worker should have entitlement for a Psychotraumatic disability, including entitlement for a permanent impairment assessment for Psychotraumatic disability, I do not find for the worker. [44] I find that the weight of the evidence, including the medical evidence, indicates that the worker does not likely have a Psychotraumatic disability that is as a result of the compensable accident or its sequelae. I find that the weight of the evidence indicates that whereas there may have been a temporary aggravation of the pre-existing psychological condition, the pre-existing condition has likely returned to the pre-accident state. I also find that it is likely that any ongoing exacerbation of the worker s psychological condition is due to the non-compensable bipolar condition. I find, in accordance with the applicable legislation and policy, that the worker does not have entitlement for a Psychotraumatic disability under this claim. [45] I note at the outset that included in the Policy Packages that the Board advised were applicable to this appeal is Board Operational Policy Manual (OPM) Document No psychotraumatic disability which provides in part as follows: Policy A worker is entitled to benefits when disability/impairment results from a work-related personal injury by accident. Disability/impairment includes both physical and emotional disability/impairment. Guidelines General rule If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure. Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition. Psychotraumatic disability/impairment resulting from organic brain damage is assessed as a permanent disability/impairment.

8 Page: 7 Decision No. 1875/14 Psychotraumatic disability entitlement Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop Other factors Organic brain syndrome secondary to - traumatic head injury - toxic chemicals including gases - hypoxic conditions, or - conditions related to decompression sickness. As an indirect result of a physical injury - emotional reaction to the accident or injury - severe physical disability/impairment, or - reaction to the treatment process. The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury. The following relevant points are evaluated in assessing the extent of psychotraumatic disability entitlement. Prior history In all cases where history of a prior psychiatric condition is shown to exist, the question of allowance on an aggravation basis is considered, having regard for the emotional effect of the occupational occurrence and a condition resulting from the work-related injury (see , Aggravation Basis). [46] Turning to worker s appeal, I note that the worker s representative submits that the worker should have entitlement under this claim for Psychotraumatic disability on the grounds that the worker s pre-existing psychological condition was aggravated by the injury. The worker s representative submits that the aggravation of the worker s pre-existing condition was an indirect result of the injury; it was an emotional reaction to the injury; and it was a reaction to the treatment process, including the three right shoulder surgeries that the worker underwent. The worker s representative submits that the aggravation is permanent, and the worker should be granted entitlement for a Non-Economic Loss (NEL) award. [47] The worker s representative submits that the worker was diagnosed with bi-polar disorder in approximately the last year, however the worker does not seek entitlement for Bipolar disorder; rather the worker seeks entitlement for depression and anxiety disorder. [48] I have considered all of the evidence, including the testimony, and the submissions of the worker s representative. I find that entitlement for Psychotraumatic disability, with a permanent impairment assessment, should not be granted in this case for the following reasons. [49] First, I find that the weight of the medical evidence indicates that the worker had a significant symptomatic pre-existing psychological condition. [50] I note in this regard that the worker testified that he had treatment for a pre-existing psychological condition, and was diagnosed with a psychological condition when he was age 19. The worker testified that the doctor prescribed Paxil at that time as medication therapy, and he has been on it ever since then.

9 Page: 8 Decision No. 1875/14 [51] I further note in this regard that the medical evidence included in the case materials indicates that the worker was seen by crisis services in 1998 and treated with Paxil for a Major Depressive Episode, and had a past history of suicide attempts. The medical evidence also indicates that the worker sought psychological counselling in 2001, and was referred again for counselling in January of 2002 when he required assistance with his anxiety disorder. The medical evidence further indicates that the worker received psychological treatment in a Panic Disorder Group in The medical evidence also indicates that the worker was referred for psychological counselling in November of Finally, a Mental Health Program Multidisciplinary Assessment Form dated January 11, 2006, stated that the worker had major issues with depression, anxiety, and family problems, and had suffered with depression, anxiety and panic attacks for several years and was feeling debilitated. [52] I also note in this regard that the worker s representative submits that the worker has a pre-existing psychological condition, and this issue is not in dispute. [53] I observe that during the worker s testimony at the hearing, the medical documentation on file concerning the worker s pre-existing psychological condition was reviewed with the worker. The worker testified that he did not recall attending some of the treatment sessions that are documented in the file records, as I have noted above; and the worker testified that he did not recall suicide attempts that were documented. I have considered this evidence and I find that the medical documentation on file concerning the worker s pre-existing psychological condition and treatment is likely more reliable than the worker s testimony in this regard since the medical documentation on file was created more contemporaneously with the events recorded, whereas the worker s testimony was provided many years after the events in question and everyone s memory fades with time; since the medical professionals who completed the medical reports on file were qualified to accurately record medical findings and treatment plans; and since the worker has agreed that he has been treated for a psychological conditions since the year 2000 when he was 19 years of age and the medical documentation is more consistent with that testimony. [54] Second, I find that the weight of the evidence indicates that whereas there may have been a temporary aggravation of the pre-existing psychological condition due to the compensable accident and its sequelae, the pre-existing condition has likely returned to the pre-accident state. [55] I note in this regard that in a report dated March 29, 2012, Dr. William Look Hong, the worker s psychiatrist, stated: His symptoms [when initially seen in April 2011] were moderate in severity. At the present time, most or all of these symptoms are still present but with less severity and intensity. [56] I also note in this regard that in a report dated September 14, 2012, Dr. Look Hong stated: As for his anxiety and depression, although there has been some improvement in these symptoms, I think that only the future will tell as to whether or not there will be any permanence to these conditions. [57] I interpret the medical reporting from Dr. Look Hong to mean that the worker s psychological condition as it pertains to depression and anxiety was becoming less severe as of 2012, and that it was not apparent that the worker had a permanent condition, or a permanent aggravation, in that regard. I conclude that this evidence indicates that the worker does not have

10 Page: 9 Decision No. 1875/14 a permanent aggravation of a pre-existing condition since the worker s depression and anxiety condition was becoming less severe by 2012, with no clearly apparent permanent condition. [58] Third, I find that the evidence indicates that it is likely that any ongoing exacerbation of the worker s psychological condition is likely due to the non-compensable bi-polar condition. [59] I note in this regard that the worker testified that in 2012 or 2013, Dr. Look Hong diagnosed the worker with bi-polar disorder and the worker was devastated. I understand from the worker s testimony that the worker was also started on new medication around the time of the diagnosis of bi-polar disorder, and I conclude that the new medication was likely prescribed to treat the bi-polar disorder. The worker testified that he was having episodes of mania and then the doctor realized it was a bi-polar disorder and this was diagnosed. As I have also noted above, the medical evidence indicates that the worker s depression and anxiety conditions were improving as of 2012; however around this time the bi-polar condition was diagnosed. I conclude that the weight of the evidence indicates that any ongoing exacerbation of the worker s psychological condition is likely due to the non-compensable bipolar condition. [60] I am aware that in some of the medical reporting on file, including the report dated report dated September 14, 2012, Dr. Look Hong stated that the worker s psychological condition of depression and anxiety was related to the accident. I find that I am unable to place significant weight on this aspect of Dr. Look Hong s reporting, for the following reasons. I find that the evidence indicates that Dr. Look Hong was not aware of the majority of the worker s prior treatment for psychological difficulties, and was not aware of the nature or severity of the worker s pre-existing psychological condition. [61] I note in this regard that the worker testified that he did not tell Dr. Look Hong that he had previous psychological treatment because he did not even think about it or remember it, and the worker testified that Dr. Look Hong does not know about the worker s previous treatment as far as the worker knows, other than he mentioned he attended group therapy in around [62] I also note in this regard that in his report dated April 18, 2011 Dr. Look Hong stated that the worker had no previous attempts at self harm; and had no previous psychiatric contacts or hospitalizations. In my view the evidence indicates that this history is inaccurate, since the worker was apparently referred to a psychiatrist in 2002 by the family doctor, according to a medical assessment form on file dated February 8, 2002; and since the worker was seen in hospital in 2001 for a psychological assessment, and in 1998 by the hospital crisis unit. [63] I am also aware that in his report dated September 14, 2012 Dr. Look Hong stated that the worker s GAF score prior to the workplace injury was 90 95, and after was I am unable to place significant weight on Dr. Look Hong s assessment of the worker s GAF score prior to the workplace injury, since Dr. Look Hong did not see or treat the worker prior to the workplace injury and started seeing the worker only in 2011; and since for the reasons I have noted above, I find that Dr. Look Hong was not aware of the nature and extent of the worker s pre-existing psychological condition and treatment. [64] In summary I conclude that the worker does not have entitlement for a Psychotraumatic disability, including entitlement for a permanent impairment assessment for Psychotraumatic disability. [65] Based on all of the foregoing, the appeal is denied.

11 Page: 10 Decision No. 1875/14 DISPOSITION [66] The appeal is denied. [67] The worker does not have entitlement for a Psychotraumatic disability, including entitlement for a permanent impairment assessment for Psychotraumatic disability. DATED: January 5, 2015 SIGNED: J. Noble