SUMMARY DECISION NO. 1015/01 Psychotraumatic disability. DECIDED BY: McIntosh-Janis DATE: 05/04/2001 NUMBER OF PAGES: 8 pages ACT: WCA
2001 ONWSIAT 1207 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1015/01 [1] This appeal was heard in Toronto on April 5, 2001, by Tribunal Vice-Chair F.W. McIntosh-Janis. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer, dated November 30, 1999, which concluded that the worker was not entitled to benefits for a psychotraumatic or chronic pain disability (CPD), to a 100% Future Economic Loss (FEL) award, to further FEL supplementary benefits after February 1998, or to a re-determination of his Non-Economic Los (NEL) award. [3] The worker appeared and was represented by G. Lakusta, consultant. The worker s daughter attended to assist her father. The employer was advised of the worker's appeal but chose not to participate. THE RECORD [4] I had before me the Case Record, correspondence dated July 11, 2000, and a report dated March 24, 2001, from Dr. Nynkowski. The worker was available to give oral testimony under oath. THE ISSUES [5] The worker injured his low back in a work-related injury on January 21, 1996. The Board has accepted that the subsequent diagnosis of disc herniation is related to this injury. The worker has been awarded a 23% NEL award for his organic impairment. [6] When the worker's FEL entitlement was first considered at D1 in March 1997, the Board considered that an appropriate vocational rehabilitation (VR) objective was a small parts assembler. His FEL benefits since then have been based upon this finding. [7] In the spring of 1997, the worker commenced English-as-a-Second-Language (ESL) training. He continued these studies until late 1997, when he commenced a job search program with the Board's assistance. In late 1997, he began to receive psychiatric treatment and was diagnosed with a major depressive disorder and adjustment disorder. [8] The worker claimed that his disability from this diagnosis was related to his compensable accident and rendered him totally disabled. He therefore claimed that he should be granted initial entitlement for his inorganic disability, that his NEL award should be re-determined to reflect this additional impairment, and that he should be entitled to full FEL benefits after February 1998 when the Board terminated his FEL supplement.
Page: 2 Decision No. 1015/01 [9] The Board denied the worker's claims for additional entitlement. The Board found that the worker s psychiatric diagnosis was not related to his compensable accident, that there was no evidence to indicate a deterioration in his compensable lower back impairment to justify a re-determination of his NEL, and that there was no evidence to indicate that the Board's FEL determination and termination of his FEL supplement in February 1998 were incorrect. The worker has appealed. THE REASONS (i) The worker' claim of a compensable inorganic disability [10] The major issue in this appeal relates to the worker's claim for benefits for an inorganic disability under either the Board's psychotraumatic disability policy or its CPD policy. The resolution of this issue focuses on the differing opinions of the worker's treating psychiatrist, Dr. Nynkowski, since October 1997 and the Board's Unit Medical Advisor. (a) Dr. Nynkowski's reports [11] The worker first saw Dr. Nynkowski, a psychiatrist, on October 30, 1997, complaining of numbness of his left side, pain all over his body and an inability to perform activities of daily living, e.g., dressing himself. The worker was described as having "a rather depressed, anxious affect" and crying throughout the interview. He admitted to suicidal thoughts and felt that "his life is over". Dr. Nynkowski's physical and psychiatric examination of the worker led him to conclude as follows: In my opinion [the worker] is suffering from Major Depressive Disorder due to considerable loss of functioning brought about by his accident at work. The accident affected both his psychological as well as physiological functioning that he is a mere shadow of the person he used to be. He suffers as well from Adjustment Disorder with depressed and anxious mood. I have placed him on a higher dosage of Amitryptyline at bedtime to 25-50 mg and added Zoloft 100 mg. in the mornings. [The worker] is presently unable to perform any type of work nor participate in any rehabilitation courses. I will be re-assessing him in about 6-9 months. [12] Dr. Nynkowski filled out the worker's application for CPP benefits in June 1999 and confirmed his earlier diagnosis of "major depressive disorder as a result of loss of his functioning" and his earlier opinion that the worker was "unemployable and will probably remain so for the rest of his life". In a report dated June 4, 1999, he reported that each time he had seen the worker since his original examination in October 1997 the worker "seemed to have decompensated further". [13] In his more recent report dated March 24, 2001, Dr. Nynkowski confirmed his earlier diagnoses. He considered that the worker was totally disabled to do any type of work or consider any type of rehabilitation or retraining. He described the worker s condition as follows:
Page: 3 Decision No. 1015/01 He is severely depressed and withdrawn from family and personal activities. He has persistent pain; his cognitive functioning shows decreased concentration and attention. He almost constantly presents psychomotor retardation and definite limitations in social activities and within the family. He becomes suicidal frequently, he is most of the time homebound and displays severe limitations of adaptation and functioning in the home and outside environment. I would categorize him as category 4 Severe Impairment of Total Person. (b) Dr. Mastrelli's report [14] The Claims Adjudicator referred the worker's claim for benefits related to an inorganic disability to Dr. Mastrilli in February 1998. Dr. Mastrilli responded as follows: (ii) The non-organic psychological problems are unrelated to the original injury. The original injury was not psychotraumatic. The non-organic symptomatology did not become clearly established until after the non-compensable accident in Sept/96 [sic this should be a reference to 1997, not 1996]. Surprisingly, this accident is not even mentioned in the report of 11Nov97 from Dr. P. Nynkowski. Until then the clinical picture was "essentially unchanged" (Dr. Fisher, 09Jul97). Finally, noting the various inconsistencies observed by Drs. Fleming and Vanderlinden, I would not consider this claim for a CPD. Earlier or other references on file to the worker's inorganic disability? [15] Dr. Mastrilli's opinion appears to be premised in part upon his view of the worker's disability as being unchanged and accurately reflected in his 23% organic NEL award prior to Dr. Nynkowski's examination of the worker in October 1997. It is therefore important to review the file to ascertain whether there were other references by other treating specialists to an inorganic disability. [16] I note the following references on file: In November 1996, Dr. Fleming, the worker's treating neurosurgeon, noted that the worker had developed an "established pattern of pain behaviour" beyond what could be explained by his organic findings. In February 1997, Dr. Vanderlinden, another neurosurgeon, referred to the worker's examination findings as being "suggestive of a functional disturbance" and to his sensory loss as "non-organic". In July 1997, Dr. Fischer, the worker's treating neurologist, reported that the worker was "getting depressed and frustrated by the ongoing discomfort". In December 1997, shortly after the worker first saw Dr. Nynkowski, Dr. Vanderlinden reported that the worker's complaints were "out of proportion to these radiological findings, and although there may be some small degree of organicity, there is ample evidence of psychogenic pain magnification syndrome on the basis of depression". He considered that the worker was "unemployable and will probably remain so in the foreseeable future, if not for the rest of his life".
Page: 4 Decision No. 1015/01 [17] In view of these references on file, I cannot agree with Dr. Mastrilli's implied finding that there was no evidence of the development of an inorganic disability until after a non-compensable incident in mid-september 1997. (See the more detailed discussion below concerning this further "accident".) (iii) September 1997 - an intervening event? [18] Dr. Mastrilli's opinion was also based upon his view that there had been a further injury in September 1997 which was an intervening event that more probably than not led to the worker's need for psychiatric care. He was concerned that Dr. Nynkowski's opinion in favour of a connection between the worker's psychiatric condition in late October 1997 and his January 1996 accident had been made without reference to this additional injury. It is therefore important to understand fully what occurred in September 1997 and the effect, if any, that it had on the worker's total impairment. [19] Reference is made in Board Memo #48 to the worker's injury to his left shoulder and neck while enroute to school on public transport (presumably on the way to his ESL classes arranged and paid for by the Board). [20] Dr. Fischer reported on October 8, 1997, that the worker had been "badly jolted" in the bus, had felt some increase in his lower back pain initially, and then had had increased stiffness in his neck and pain in his left shoulder blade and joint the next morning. Dr. Fischer referred to the worker's need for additional physiotherapy for his "neck muscle spasm related discomfort". [21] The worker was involved with his VR Caseworker in late September and October 1997, reviewing the results of his ESL training and deciding on the next steps in his VR. It is therefore worth reviewing the VR reports on file for references to an additional injury or injuries from the "bus incident". In this regard, I note the following: At the meeting on September 25, 1997, i.e., after the bus incident, the Caseworker noted that the worker had missed the last three days of his ESL training "due to increased pain in his back from a recent bus ride that was uncomfortable and required bed rest" (emphasis added). No mention is made of additional complaints of pain in the neck and/or shoulder. The Caseworker and the worker updated the worker's VR plan, reflecting job search activities. There is no indication in this report of any new injuries affecting the worker's level of disability. At the next meeting on October 15, 1997, the Caseworker again made no reference to additional complaints of pain involving non-compensable injuries. However, she did note that the worker had "presented verbally as pain focused throughout many VR follow-up appointments" (emphasis added). The Caseworker raised concerns that, if the worker presented with "pain behaviours that would interfere with his employability". The emphasized portion of the
Page: 5 Decision No. 1015/01 above-quoted passage indicates to me that the worker did not present as pain-focused only after the bus incident but had been doing so ever since the Caseworker had become involved with him (the VR file was opened in July 1996). Reports on file indicate that the worker did as the Caseworker requested and commenced his job search activities. There are 10 pages of job contacts on file, covering the period at the end of October and start of November 1997. The worker attended a creative job search program on November 26 to 28, 1997. The assessors assisted the worker in developing a new resume and fine-tuning his interview skills. No mention is made of additional complaints of pain in areas other than the worker's lower back. [22] The information noted above on the worker's VR file and in the medical reports indicates to me that whatever additional injuries, if any, the worker might have sustained when he was "jolted" on the bus on September 16, 1997, they did not constitute the major intervening event which Dr. Mastrilli appears to have assumed they did. Given the absence of significant references to additional injuries to the worker's left shoulder and neck in the VR file and the medical reports, I therefore do not share Dr. Mastrilli's concerns that Dr. Nynkowski might not have considered the "bus incident" when he opined on the connection between the worker's psychiatric condition in late 1997 and his 1996 compensable accident. (iv) My conclusions (a) The worker s psychiatric condition [23] The Appeals Resolution Officer's denial of the worker's various claims was dependent upon her acceptance of Dr. Mastrilli's opinion against a connection between the worker's psychiatric condition as diagnosed by Dr. Nynkowski and his 1996 compensable accident. For the reasons described in more detail above, I cannot give much weight to Dr. Mastrilli's opinion. Put simply, it is my view that Dr. Mastrilli incorrectly assessed the worker's "bus incident" as significant and also incorrectly assumed that there had been no references on file to the worker's developing inorganic condition prior to his attending Dr. Nynkowski. [24] In my view, Dr. Nynkowski's medical reports support the worker's claim that he is entitled to benefits under the Board's psychotraumatic disability policy, which provides for 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 clearly and directly related to the work-elated injury". The worker is therefore entitled to a re-determination of his NEL benefits to reflect the addition of this impairment which the doctors now find to be permanent. [25] Given my conclusion concerning the worker s psychiatric entitlement, I need not comment further on the issue of CPD.
Page: 6 Decision No. 1015/01 (b) NEL benefits [26] With respect to the appropriate level of the worker s NEL benefits, I have no reason to doubt the correctness of Dr. Nynkowski s recent assessment of the worker s impairment as now falling within Category 4 of the Board s Rating Schedule for psychotraumatic disabilities. I therefore find that the worker s NEL award should be within Category 4 from at least March 2001. However, I leave to the Board the initial assessment of exactly where within Category 4 the worker s current impairment should be rated. (The Board policy provides for a range of ratings in Category 4 between 60% and 80%.) [27] I also leave to the Board the initial assessment of where within the Board s Rating Schedule the worker s impairment best fit prior to March 2001, the date of Dr. Nynkowski s most recent report. The worker s representative and/or the Board may wish to contact Dr. Nynkowski for further information as to his view of the worker s condition and how it fit within the Rating Schedule since October 1997 when he first saw the worker. [28] Given the nature and extent of the worker s current psychiatric impairment, the Board may wish to consider assessing his NEL benefits for his psychiatric impairment on the basis of a review of the medical reports (and perhaps additional information from Dr. Nynkowski if the Board considers that necessary), rather than requiring the worker to attend for an examination. (c) FEL benefits [29] The Board's denials of the worker's claim for full FEL benefits (either on the basis of a FEL supplement after February 1998 because of a medical rehabilitation program or on the basis of a finding of total disability and unemployability after April 1999, the R2 date) were based upon the Board's denial of entitlement for an inorganic disability. [30] Given my view that the worker's psychiatric disability is compensable, I find that the worker is entitled to a FEL supplement from February 1998 when his benefits were first terminated until April 1999 when his FEL benefits were re-assessed at R1. I find that the evidence indicates that the worker's medical treatment at the time was required to address a serious and unanticipated deterioration in his condition, i.e., the manifestation of a psychiatric condition which had been suspected prior to October 1997 but which had not interfered with the worker's ability to participate, for example, in his VR plan until October 1997. He is therefore entitled to a FEL supplement under section 43(9)(b) of the Act, which refers to a medical rehabilitation program relating to "an unanticipated deterioration in the worker's condition". [31] With respect to the worker's entitlement to further FEL benefits after April 1999 (the R1 review date), I find that the medical evidence on file at that time establishes that the worker was unemployable because of a combination of his organic and psychiatric disabilities, both of which are compensable. The reports of both Dr. Nynkowski, the worker's treating psychiatrist, and Dr. Vanderlinden, his consulting neurosurgeon, which are quoted above make it clear that, in their view, the worker was "unemployable" and probably would be for the balance of his life. The worker is therefore entitled to full FEL benefits at R1.
Page: 7 Decision No. 1015/01 THE DECISION [32] The appeal is allowed. [33] I find the worker entitled to benefits under the Board's psychotraumatic disability policy. I find that the worker s NEL award should be within Category 4 from at least March 2001. However, I leave to the Board the initial assessment of exactly where within Category 4 the worker s current impairment should be rated. I also leave to the Board the initial assessment of where within the Board s Rating Schedule the worker s impairment best fit prior to March 2001. [34] I find the worker entitled to a FEL supplement from when it was terminated in February 1998 until April 1999 when the R1 review was done. [35] I find the worker entitled to full FEL benefits from April 1999 on the basis of my finding that he is unemployable. DATED: This 5 th day of April 2001. SIGNED: F.W. McIntosh-Janis.