WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 18/17

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 18/17 BEFORE: J. P. Moore : Vice-Chair E. Tracey : Member Representative of Employers S. Roth : Member Representative of Workers HEARING: January 4, 2017 at Toronto Oral DATE OF DECISION: February 6, 2017 NEUTRAL CITATION: 2017 ONWSIAT 403 DECISIONS UNDER APPEAL: WSIB ARO decisions dated April 25, 2013 and January 28, 2015 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Not participating L. Velliaris 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. 18/17 REASONS (i) Introduction [1] This appeal arises out of a workplace accident that occurred on March 1, On that date, the worker was struck in the head and face by a heavy piece of marble. The worker was employed as a marble polisher and was 50 years of age when the accident happened. [2] The Workplace Safety and Insurance Board (the Board ) accepted that the worker was left with a permanent organic impairment involving his face, his vision, and his low back. The worker was granted a 23% non-economic loss ( NEL ) award for this condition in May [3] The accident employer was able to offer the worker permanent modified duties. However, in December 2008, the employer laid the worker off permanently. The Board extended Labour Market Re-entry ( LMR ) Services, now called Work Transition Services. A suitable employment or business ( SEB ) of private math tutor, a self-employed position, was selected by the Board. The worker was to be provided with training. However, his LMR program was suspended in November 2009 because the worker was experiencing psychological difficulties. [4] The Board provided the worker with psychological counselling services until December 1, 2011, when those services were discontinued on the basis that the worker had recovered from his psychotraumatic disability. The Board reinitiated Work Transition ( WT ) Services but terminated those services on May 7, 2011, on the basis that the worker had selfperceived limitations. The Board then initiated a final review of the worker s LOE entitlement and granted the worker partial LOE benefits from June 6, 2012 onward, based on likely full-time earnings of $11.50 per hour as a private math tutor. [5] The worker filed an appeal with the Board s Appeals Branch seeking entitlement for his neck and shoulders, for a psychotraumatic disability/chronic pain disability, and a review of his LOE entitlement. In a decision dated April 25, 2013, an Appeals Resolution Officer ( ARO ) allowed the worker s appeal, in part. The ARO denied entitlement for the neck and shoulders and for chronic pain disability, but allowed entitlement for a psychotraumatic disability. The ARO referred the file back to the Board s operating level for a NEL assessment and for reconsideration of the selected SEB and LOE entitlement in light of the additional impairment. [6] The Board subsequently granted the worker a 15% NEL award for a psychotraumatic disability but confirmed all previous decisions regarding WT, the selected SEB, and LOE entitlement. The Board also denied a request by the worker to entitlement for headaches. [7] The worker appealed these decisions to the Appeals Branch. His appeal was denied by an ARO in a decision dated January 28, [8] The worker has appealed that latter decision to the Tribunal. The worker has also appealed the ARO decision of April 25, 2013, with respect to the denial of entitlement for the neck and shoulders. (ii) The issues [9] The issues in this appeal are: 1. whether the worker has initial entitlement to benefits from the Insurance Plan for a neck and left shoulder condition;

3 Page: 2 Decision No. 18/17 2. whether the worker has initial entitlement to benefits for headaches; 3. whether the Board correctly determined the quantum of the worker s NEL award for a psychotraumatic disability; 4. whether the Board correctly determined the worker s LOE entitlement from June 6, 2012 onward. (iii) The decision [10] On the evidence and submissions presented to us, the Panel is persuaded on the balance of probabilities that: 1. the worker does not have initial entitlement to benefits for a neck and shoulder condition; 2. the worker does not have separate entitlement for headaches because entitlement for that condition is considered in the NEL quantum for the worker s psychotraumatic disability; 3. the worker is entitled to a 30% NEL award for a psychotraumatic disability; 4. the worker is entitled to full LOE benefits from June 6, 2012 onward. (iv) Analysis (a) Summary of the facts [11] As noted above, after the 2004 workplace injury, the worker was able to return to modified work with the accident employer and remained there until December 2008 when he lost that job. Prior to then, the worker had begun experiencing psychological symptoms related to the pain he was experiencing from his organic condition. As noted above, when he lost his job, the worker was offered LMR services, which were later discontinued to enable the worker to get counselling for his psychological symptoms. Coverage for this treatment was discontinued effective December 1, 2011, largely on the basis of a report from the worker s treating psychologist, Dr. J. Pilowsky. In a letter dated December 1, 2011, Dr. Pilowsky noted that she had been treating the worker for approximately one month but was going to close his file because of the worker s antagonistic attitude. The Board interpreted the worker s response to Dr. Pilowsky as evidence of non-cooperation in medical treatment and terminated reimbursement for psychological counselling. [12] However, in the Panel s opinion, it is important to note Dr. Pilowsky s description of the source of the worker s antagonism: According to his reporting during sessions, it seems that he is desperate to return to work, and when we try to explain that he did not seem able to do so, he was quite angry about it, and insisted that WSIB should find him a job immediately. However, when we explored the type of job he wants, it is evident that his aspirations are beyond his skills.

4 Page: 3 Decision No. 18/17 [13] After terminating payment for counselling, the Board offered the worker WT services to facilitate engaging in the SEB previously selected for him, private math tutor. The worker declined to participate on the basis that the SEB was not suitable. [14] In his testimony, the worker indicated that, while he was able to do modified work with the accident employer, he had recurring difficulties with his physical condition, which affected his work. He testified that he began to develop psychological symptoms before he lost his job and that the symptoms worsened after he lost his job. He agreed with Dr. Pilowsky s assessment that he was desperate to return to work. He said that, without having a meaningful occupation, he felt like there was no point to life. [15] He agreed that he was initially excited about the prospect of becoming a math tutor. However, when he investigated the requirements for becoming a private math tutor, he realized that he lacked several important qualifications, such as facility in English, and academic certification such as a University Bachelor s Degree, certification as a teacher, or a diploma in child and youth work. He said it was also apparent that relevant experience was a pre-requisite for obtaining work as a private math tutor and he had none. He said that, when he realized that he was not qualified to become a private math tutor, his depression worsened, particularly when the Board continued to insist that he had the qualifications to perform the selected SEB. He testified that, despite his strong desire to return to the workforce, doing so was unlikely. He noted that, as of June 2012 when his final LOE entitlement review was done, he was almost 57 years of age with significant organic and non-organic conditions that made it unlikely that he could obtain and maintain employment in any field in which he was qualified to work. [16] With respect to the additional organic areas of entitlement, he stated that he injured his neck and left shoulder in the initial accident and had experienced headaches on an ongoing basis since the accident. [17] Finally, the worker and his spouse gave testimony on the day-to-day impact of the worker s injury. They spoke of recurring sleeplessness, anger and frustration, constant fatigue, social isolation, self-care limitations, forgetfulness, and deterioration in family relations. (b) Entitlement for the neck and left shoulder [18] On this issue, the Panel is persuaded that the worker does not have initial entitlement to benefits for the neck and left shoulder. In so concluding, we agree with the ARO in finding that there was no proof, in the contemporaneous evidence, of an injury in the initial accident to the neck and left shoulder. We agree with the Board that, in subsequent medical evidence, the first reference to complaints of back and left shoulder pain appears in April 2009, five years after the initial accident. [19] The worker testified that he did, in fact, report symptoms of neck and left shoulder pain to his treating physicians. However, there is no documentation of such reports until the worker underwent a psychovocational assessment in April 2009, when he prepared a diagram showing areas of pain. That diagram showed pain in the neck and left shoulder. [20] More significantly, when the worker was seen by a specialist, Dr. Veillette, in September 2009 for an assessment of left shoulder pain, the worker informed Dr. Veillette of a history described as follows in a report dated September 18, 2009: The patient states that he has had left neck and shoulder pain for the past few years getting worse over the past few months.

5 Page: 4 Decision No. 18/17 [21] Dr. Veillette went on to conclude that the left shoulder pain was of unclear etiology likely related in part to shoulder joint degeneration as well as some neck radiculopathy. There is no reference in that report to the accident as the cause of the worker s pain. And the history given by the worker implies an onset several years after the initial accident. [22] On that evidence, therefore, we are persuaded that the worker does not have entitlement to benefits for the neck and left shoulder. (c) Entitlement for headaches [23] On this issue, the Panel is persuaded that the worker does not have independent entitlement for headaches. In so concluding, we are persuaded that the worker s headache complaints are part of his psychological impairment and are to be considered in determining the quantum of the NEL award the worker receives for that condition. We note, in this regard, a report from a psychiatrist, Dr. F. Yaroshevsky, dated November 23, 2011, which describes the worker s presenting problems as follows: aches and pains, headaches, insomnia, loss of memory, difficulties to function, etc. [24] Dr. Yaroshevsky diagnosed these symptoms as part of chronic depression. [25] The worker was subsequently assessed at the Toronto Western Hospital by a clinical psychologist, Dr. J. Mitsopulos. In a report dated May 1, 2012, Dr. Mitsopulos described the worker s psychological symptoms as including daily headaches. [26] In our opinion, therefore, it is unlikely that the headaches have a separate organic source. In our opinion, the headaches are part of the worker s psychological impairment and are to be addressed in determining the quantum of the worker s NEL entitlement for a psychotraumatic disability. (d) NEL entitlement for a psychotraumatic disability [27] On this issue, the Panel is persuaded that the Board has underestimated the extent of the worker s NEL entitlement for a psychotraumatic disability. The Board set that entitlement at 15%, which reflects a finding by the Board that the worker has a mild impairment described in Class 2 of the Board s rating schedule for Mental Behavioural Disorders. That schedule is found in Document No of the Board s Operational Policy Manual. In the Panel s opinion, the medical evidence establishes that the worker s impairment better fits in Class 3 of the rating schedule, which describes a Moderate Impairment with a rating range of 20% to 45%. In determining the appropriate quantum of the worker s NEL award, we cite and rely on the report of Dr. Mitsopulos, dated May 1, 2012, and an earlier report prepared on March 8, 2011 by Dr. K. Kamkar, a psychologist with the Centre for Addiction and Mental Health ( CAMH ). On the basis of those reports, the Panel notes the following features described in Class 3: diminished confidence increasing dependence on family members episodic anxiety fear of reinjury persistent pain (including headaches) emotional withdrawal

6 Page: 5 Decision No. 18/17 depressive features insomnia chronic fatigue mild noise intolerance social and personal adjustment within the family. [28] These are all features found in the lower range of Class 3. In our view, they reflect approximately 40% of the features described in Class 3. Since the range for a Class 3 impairment is 20% to 45%, having 40% of the features in Class 3 would appropriately place the worker at a 30% level of impairment. We so find. The worker is entitled to a revised NEL award reflecting a 30% award retroactive to the date of the initial NEL award for a psychotraumatic disability. (e) LOE entitlement [29] On this issue, the Panel is persuaded that the worker is entitled to full LOE benefits from June 6, 2012 to the date those benefits were reduced. [30] The worker s entitlement to LOE benefits after that date is governed by sections 42 and 43 of the Workplace Safety and Insurance Act, Pursuant to that legislation, the Board has developed policy regarding the determination of a suitable occupation. OPM Document No defines a suitable occupation as a job suited to a worker s transferable skills that: is safe is consistent with the worker s functional abilities reduces or eliminates the loss of earnings resulting from the injury is available in the labour market. [31] In the Panel s opinion, the occupation of private math tutor was not a suitable occupation for the worker because it was not consistent with the worker s functional abilities and, given the worker s limited qualification, was not available in the labour market. We are also persuaded that, in light of the worker s age, his various compensable conditions, and his lack of training, it was unlikely that the worker would be able to obtain and maintain employment in the competitive workforce as of June 6, [32] In coming to these conclusions, the Panel feels that it is important to note the full extent of the worker s impairment. The worker has a low back condition that is a source of chronic pain. He also has visual problems caused by nerve damage that cause him to experience blurring and double vision. In our opinion, the former condition precludes any physical employment; the latter condition would be a significant impediment to working as a tutor. [33] However, in our opinion, the primary impediment to working as a math tutor or to a return to the competitive labour market is the psychological condition the worker developed subsequent to the workplace injury. In our opinion, by June 2012, that condition compounded the worker s overall level of impairment to the point where he was effectively disabled from returning to the workforce.

7 Page: 6 Decision No. 18/17 [34] It is also important, in our view, to note that there is no evidence that the worker has failed to cooperate. It is particularly noteworthy, in our view, that the basis for the Board s decision to discontinue coverage for psychological treatment was the worker s conflict with a treating psychologist, Dr. Pilowsky. The Board viewed the worker s antagonism to Dr. Pilowsky as evidence of non-cooperation. However, as we noted above, Dr. Pilowsky s elaboration on the cause of that antagonism is telling. We reiterate: According to his reporting during sessions, it seems that he is desperate to return to work, and when we try to explain that he did not seem able to do so, he was quite angry about it, and insisted that WSIB should find him a job immediately. However, when we explored the type of job he wants, it is evident that his aspirations are beyond his skills. [35] That paragraph is important in three ways. First, it shows that the worker truly wanted to return to work and would have done so had he been properly assessed and trained. Second, it shows that Dr. Pilowsky was of the opinion, as of December 2011, that a return to employment was highly unlikely, given the worker s condition. Third, it shows that, in the opinion of Dr. Pilowsky, the worker did not have the skills to achieve the type of employment he wanted. [36] It is also important to note, in our opinion, that the Board previously suspended the worker s LMR program, in 2009, when it became apparent that the worker was experiencing psychological problems. The Board then initiated several years of psychological treatment. In our view, this reflects a belief on the part of the Board that the worker was not, at that time, ready to return to either employment or vocational rehabilitation. In our opinion, nothing changed between 2009 and 2012 that would have warranted reinitiating work transition services and assuming the worker was then capable of performing the SEB that the Board had previously determined that he could not perform because of ongoing psychological problems. [37] When the Board made its determination regarding final LOE entitlement, in June 2012, entitlement for a psychotraumatic disability had not yet been allowed. That occurred in April 2013 when an ARO granted that entitlement and directed the Board s operating level to reconsider its previous determinations regarding LOE entitlement. The Board s operating level seems to have ignored the apparent suggestion by the ARO and simply confirmed all the previous decisions made regarding LOE entitlement and suitable employment. [38] However, in the Panel s view, there was ample evidence, both before and after the final review date, of an inability to return to competitive employment. [39] In February 2011, the worker underwent an extensive psychiatric evaluation by a psychiatrist, Dr. J. Farewell, a psychiatrist with the CAMH. In a report dated April 5, 2011, Dr. Farewell wrote (at page 31 of the report): The prognosis for [the worker] returning to some type of gainful employment at this juncture appears guarded to poor. [The worker] has difficulties with the language. His current advancing age is a potential barrier. His ongoing pain focused behavior, selfreport of visual problems and ongoing mood and anxiety difficulties all affect prognosis. [40] On April 5, 2011, Dr. Kamkar, a clinical psychologist with the CAMH, reported that the worker was able to participate in modified/alternative work or retraining. The Board relied on that opinion. However, further in the same report, regarding the prognosis for a return to work, Dr. Kamkar wrote: The prognosis is guarded for return to any kind of work.

8 Page: 7 Decision No. 18/17 [41] As we noted above, in December 2011, Dr. Pilowsky was of the view that the worker did not seem able to return to work. [42] Dr. Mitsopulos report of April 2, 2012, found a Global Assessment of Functioning of 50, which she described as reflecting a: Serious impairment in social, occupational and family functioning. [43] She went on to state: In terms of prognosis [the worker s] prognosis is considered to be guarded due to the complexity of his injuries and the length of time that has passed since his accident. Not providing him with psychological treatment will likely result in further deterioration in his psychological status. [44] We note that the Board had decided, at that point, that the worker no longer required psychological treatment because he had recovered. [45] We also note a report dated October 11, 2012, by Dr. B. Kirsh, a psychiatrist with the Toronto Western Hospital, which stated: It was clear that he was in both physical and emotional distress. [I]t is clear that [the worker] is suffering with significant chronic depression and anxiety. Along with this, he has very difficult chronic pain conditions in which both physical and psychological always get wrapped together. He is clearly not managing well at all. [46] Dr. Kirsh assigned the worker a Global Assessment of Functioning rating of which Dr. Kirsh described as representing a severe and catastrophic impairment. Dr. Kirsh also indicated that he did not believe the worker was malingering. [47] Finally, in a report dated August 27, 2013, Dr. Mitsopulos wrote: From a psychological perspective, MMR has probably been reached. Although modest psychological improvement is possible, the extent of this improvement will likely not be at the level to allow for a return to the workforce. [48] On that evidence, the Panel is persuaded on the balance of probabilities that, as of June 6, 2012, the worker was not able to qualify for employment in the SEB of private math tutor because of a lack of qualifications and the combined impact of his organic and non-organic conditions. We are further persuaded that, as of that date, because of those work-related conditions, as well as the worker s age and his lack of qualifications, the worker was unlikely to find employment in the competitive workforce. Consequently, we allow the worker full LOE benefits from June 6, 2012 onward.

9 Page: 8 Decision No. 18/17 DISPOSITION [49] The worker s appeal is allowed in part: 1. The worker does not have initial entitlement to benefits for a neck and left-shoulder disability. The decision of the ARO dated April 25, 2013, is confirmed. 2. The decision of the ARO dated January 28, 2015 is varied as follows: (a) (b) (c) entitlement for headaches is denied on an organic basis; the worker s headaches are part of his psychological condition. the NEL award for the worker s psychotraumatic disability is increased from 15% to 30%. the worker is entitled to full LOE benefits from June 6, 2012 onward on the basis that the SEB selected for him was not suitable and because, as of that date, he had no likely prospect of obtaining and maintaining employment in the competitive workforce due to age and disability, and his personal and vocational characteristics on that date. DATED: February 6, 2017 SIGNED: J. P. Moore, E. Tracey, S. Roth