FD: DT:D DN: 1204/87 STY: PANEL: McIntosh-Janis; Beattie; Jago DDATE: ACT: none KEYW: Psychotraumatic disability. SUM: Worker fell from

Transcription

1 FD: DT:D DN: 1204/87 STY: PANEL: McIntosh-Janis; Beattie; Jago DDATE: ACT: none KEYW: Psychotraumatic disability. SUM: Worker fell from scaffolding, six or seven feet to a lower level of scaffolding which was ten feet off ground. Worker received permanent disability award for low back. Worker appealed denial of entitlement to benefits for psychotraumatic disability. Evidence established main focus of worker's disability resulted from inability to resume his pre-accident work for any appreciable length of time, his prolonged recovery from low back injury, apprehension about health and lack of work, and discomfort from being in position of dependency. This all fit within Board's policy on psychological disability. Accident was significant contributing factor to development of psychiatric condition. PDCON: TYPE:A DIST: BDG:Claims Services Division Manual, s.71(3), p.207, Directive 22 IDATE: HDATE: TCO:J. Siegel KEYPER:S. Spano XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 1204/87 This appeal was heard on November 27, 1987, by: F.W. McIntosh-Janis: Panel Chairman, W.D. Jago : Tribunal Member representative of employers, D.B. Beattie : Tribunal Member representative of workers. Post-hearing written submissions were completed on November 24, THE APPEAL PROCEEDINGS The worker appeals the decision of the Hearings Officer, M.L. Crapper, dated June 3, The Hearings Officer found that the accident of March 20, 1975, or its sequelae, did not significantly contribute to the non-organic aspect of the worker's disability. Accordingly, entitlement to psycho-traumatic disability benefits was denied. The worker appeared and was represented by S. Spano, Community Legal Worker with the Industrial Accident Victims Group of Ontario. The Panel was informed that the accident employer is no longer in operation. J. Siegel of the Tribunal Counsel Office assisted the Panel at the hearing. The worker's son attended as observer. THE EVIDENCE 1. The Case Description, marked as Exhibit #1; 2. A letter from Dr. DeLucas dated June 22, 1987, marked as Exhibit #2; 3. Dr. Doyle's medical opinion found in WCB Memo #16, dated September 23, 1976, marked as Exhibit #3; 4. The worker's oral testimony under oath, with the assistance of M. Gracile, an interpreter in the Italian language; 5. A letter dated April 14, 1988, from the Tribunal's Medical Liaison Officer to Dr. Allodi; 6. Dr. Allodi's report dated October 7, 1988, after his examination of the worker on May 31, 1988; 7. Post-hearing written submissions from the worker's representative dated November 10, 1988.

3 2 THE NATURE OF THE CASE The issue before the Panel is whether the worker is entitled to benefits for a psychiatric disability resulting from his compensable accident on March 20, 1975, or its sequelae. THE PANEL S REASON (i) General background On March 20, 1975, the worker, now 63, was working on a scaffold when he slipped and fell off the scaffold, hurting his back and left shoulder. The worker had been working in a 17-floor stairwell in an apartment building on the second level of scaffolding about ten feet off the ground. He landed six or seven feet below on another scaffold. Had he missed the scaffold below him, he would have toppled to the ground. The worker was first assessed by the WCB Pensions Department in January It was felt that the degree of his organic disability in his low back was 10% at that time. However, this pension was never instituted and temporary total benefits were continued. The worker was eventually awarded a permanent partial disability award of 15% in December A reassessment in January 1983 increased his pension to 20%. Since the accident, the worker has attempted two returns to work. He worked in 1978 and 1979 for one year and again in He left both jobs because of increasing pain. He last worked in April Prior to the worker's fall, he had worked as a plasterer for 23 years. He has a Grade 3 education. He is married and now has two children aged 32 and 26. (ii) Medical reports on file Within months of the worker's accident, treating physicians noted "elements of overlay". As early as March 1976 Dr. Mitchell diagnosed an hysterical sensory loss over the worker's whole right leg. The worker was therefore booked for examination at the WCB's Psychological and Social Evaluation Module. Dr. Sutherland's Discharge Report concerning the worker on May 19, 1976, concluded as follows: It is felt that the patient's psychological symptoms are related to the accident under this claim at this time. It is, however, felt that if the patient does not return to work within three months this file should be reviewed regarding psychological entitlement at that time. Despite clear findings of what was referred to as "situational anxiety" by Dr. Sutherland, the worker apparently did not exhibit any psychiatric disability when examined by Dr. Jones of the WCB in March Dr. Jones concluded his report as follows:

4 3...I find no evidence of psychiatric disability at the present time, and presume that the reactive anxiety which was in evidence during the patient's admission to the Centre has since been resolved. This report appears to be contrary to the majority of the other reports of examining physicians on file. For example, Dr. Ritchie of the WCB noted "a moderate amount of functional overlay" when he examined the worker on September 13, Dr. Whitty examined the worker on March 19, 1980, and stated that "the major problem would appear to be psychiatric and/or psychogenic" problems. The reports of other treating physicians throughout 1982 and 1983 refer to "large" or "very large" functional overlays. The worker was finally referred to a psychiatrist, Dr. Figlioli, in November Dr. Figlioli's first report diagnosed the worker as suffering from "a post-traumatic neurosis with some depressive undertones". The worker continued to see Dr. Figlioli twice a month at first, and more recently one a month. Dr. Figlioli concluded a more recent report dated February 4, 1986, as follows: In summary the diagnosis remains unchanged. The prognosis is also unchanged. With medication and some support one can only try to prevent the deterioration of the patient's conditions but cannot improve them significantly. In view of that it is my opinion that in this case there is at least a moderate impairment of the total person with "episodical anxiety state" and "nurturing strong passive tendencies" and he should be compensated accordingly. Dr. Murray, a psychiatric consultant employed by the WCB, examined the worker on March 26, Dr. Murray described the accident in March 1975 as "not being capable of being considered by any stretch of the imagination to have been psychopathogenic". He concluded his report as follows: After a full review of the file and a good deal of deliberation, noting that the accident in itself was not psycho-traumatic, that he has had only conservative management, and the level of his organic award, I find it impossible to relate his present declared condition of anxiety and depression to be primarily accident related. I do not think that psychiatric entitlement is in order. It would appear that the Hearings Officer, in denying the worker's claim, relied largely on Dr. Murray's report. (iii) Post-hearing examination and medical report After the oral hearing the Panel requested the worker to be examined by Dr. Allodi, an Italian-speaking psychiatrist at Toronto Western Hospital. Dr. Allodi examined the worker on March 31, His interview lasted approximately two hours. The interview was conducted in Italian without any need for the assistance of an interpreter.

5 4 Dr. Allodi had been supplied with all the medical reports on file concerning the worker and was asked by the Panel to comment on whether the worker had a psychiatric diagnosis; if one existed, how it was manifested; the most significant contributing factors to the worker's present condition; and the evidence demonstrating the onset of the worker's condition. Dr. Allodi described the worker's symptoms which he found in March 1988 as follows:... nervousness, tiredness, irritability, insomnia, restlessness, headaches, mental confusion, and pain in the lower back, of a constant nature and exacerbated by exertion and lately radiating to both heels, but to the right more than to the left. (Apart from the radiation of pain to the worker's heels, these symptoms appear to have been relatively consistent since the date of the accident.) Dr. Allodi confirmed Dr. Figlioli's assessment of the worker's "moderate symptoms of an affective disorder". Dr. Allodi described the worker as being "worried and apprehensive about his own health and about having no work and being in a position of dependency". He agreed with Dr. Figlioli's psychiatric diagnosis of post-traumatic neurosis: Post-traumatic neurosis definitely means a condition of pathology, a recognized clinical entity and diagnostic category (300.1). Of course, it may show hysterical, depressive, or phobic or any other type of symptomatology, but the key diagnostic feature is that it is related in a sequencial [sic] and causative manner to a trauma in question. This trauma is almost universal experience and not to be confused with post-traumatic stress disorder (PTSD), which is reserved for an individual affected by very severe or massive conditions of stress, not of universal experience, such as concentration camps, being a victim of crime such as rape or torture, or being also involved in some natural disaster like floods and hurricanes. This condition is referred to with code 308 in ICD-9 [International Classification of Diseases] or DSM-III [The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders]. I make this point because lawyers in civil courts are using inappropriately this diagnosis to defend cases of even trivial road accidents. With regard to the six clinical entities referred to in the WCB's directive 23 signifying "impairment due to post-traumatic neurosis" or following industrial injuries, those cases of neurosis following injuries at work would be manifested most commonly by conversion or hysterical symptoms, anxiety or depressive features and other psychosomatic manifestations, and coded with as hysterical or post-traumatic neurosis. The term

6 5 post-traumatic neurosis is the appropriate one... The presence of an industrial accident and the process of seeking primary or psychological gains and secondary or material gains would be the main diagnostic point, and regardless of the specific symptom the diagnosis should be post-traumatic neurosis (i.e ). With respect to the degree of the worker's disability resulting from this diagnosis, he describes the worker as suffering from "very moderate symptoms of a hysterical and depressive reaction to a lower back pain syndrome of a mixed post-traumatic and a degenerative disease origin". As to the cause of the worker's post-traumatic neurosis, Dr. Allodi states: The main factor that originated peculiarities in [the worker's] behaviour and his presentation to clinical examiners within three months of the accident was the accident of March 20, It was not a serious accident, but by no means trivial, since it involved a fall from one level to another and not what is most commonly found in a trivial accident, i.e., fall from a standing position to the ground, bumping or straining. It is clear that Dr. Allodi is of the opinion that the worker's "neurotic process" commenced with his March 1975 accident but was also accelerated or increased by the advance of his degenerative disc disease and, to a much smaller degree, his hypertensive disease which resulted in a heart attack in February (iv) The Panel's conclusions In our view, the reports of Dr. Figlioli (the worker's treating psychiatrist since 1984), Dr. Allodi (who examined the worker at the Panel's request) and Dr. Sutherland (who diagnosed psychiatric problems as early as May 1976) all support the worker's claim that he has a psychiatric condition and that his March 1975 accident was a significant contributing factor to the development of this condition. Our reasons follow. Dr. Murray of the WCB, who did not support a causal connection, appears to have considered the accident to be of a rather trivial nature. In this regard, we prefer Dr. Allodi's assessment of the accident as involving a fall from one level to another and "by no means trivial". We note also the early recognition of a psychological disability. Although a formal psychiatric diagnosis does not appear to have been made until 1984, what Dr. Allodi refers to as "peculiarities in the worker's behaviour" were noted within three months of his accident. There is no evidence of any psychiatric disorder prior to the 1975 accident. The medical evidence establishes to our satisfaction that the main focus of the worker's disability results from his inability to resume his pre-accident work for any appreciable length of time, his prolonged recovery from his low back injury, his worry and apprehension about his own health and

7 6 about having no work, and his discomfort from being in a position of dependency. In our view, all this fits within the WCB's policy on psychological disability. Reference is made to entitlement for psychological disability where the disability is "an indirect result of a physical injury", such as an "emotional reaction to the accident or injury". In particular, section 2.3 of Directive 22 concerning the adjudication of claims for psycho-traumatic disability refers to entitlement where the disability "is shown to be related to extended disablement and to non-medical, socio-economic factors, the majority of which can be directly and clearly related to the compensable injury". In response to the Panel's questions concerning the onset of the worker's psychiatric condition, Dr. Allodi stated his view that up to 1982 the worker's psychiatric symptoms represented no psychiatric disability. This finding appears to be dependent largely upon Dr. Allodi's understanding concerning the worker's post-accident returns to work. The worker's representative pointed out, in post-hearing submissions, that Dr. Allodi seems to be assuming that the worker was continuously employed between 1975 and Dr. Allodi referred to the worker having "continued his work from the time of the accident in 1975 until 1982". In actual fact, the worker's returns to work after the 1975 accident were for brief and intermittent periods. Reference is made by Dr. Allodi to the possible causative role played by the progression of the worker's degenerative disc disease and, to a much lesser extent, his non-compensable health problems concerning his heart and a cyst on his right lateral meniscus. We note, however, that the worker's organic claim appears to have been accepted as a lumbar strain with degenerative disc disease. It would appear that the degenerative disc disease referred to by Dr. Allodi as a "non-compensable factor" was part of the clinical assessment and acknowledged by the WCB as an element in the worker's overall disabling organic condition. It would also appear that the increase in the worker's permanent disability ratings from 10% (in January 1977) to 20% (in January 1983) recognizes the significant deterioration in his condition over time. With respect to the role played by the worker's heart attack in February 1978, it is our understanding that this was a minor, acute and one-time episode of atrial fibrillation. Dr. Allodi appears to have over-estimated the degree of the worker's heart condition. In summary, it is our view that the worker's appeal should be allowed.

8 7 THE DECISION The appeal is allowed. We find that the worker is entitled to benefits for a psychiatric disability which we find to be related to his compensable accident of March 20, 1975, and its sequelae. We remit the file to the WCB for the determination and calculation of the benefits to which the worker is entitled in view of this conclusion. DATED at Toronto, this 14th day of December, SIGNED: F.W. McIntosh-Janis, W.D. Jago, D.B. Beattie.