WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1056/10 BEFORE: T. Mitchinson: Vice-Chair HEARING: May 31, 2010 at Toronto Oral DATE OF DECISION: June 2, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1316 DECISION(S) UNDER APPEAL: WSIB ARO decision dated February 29, 2008 APPEARANCES: For the worker: Ms. Fatima Goncalves, Paralegal For the employer: Not Participating Interpreter: Anna Ventura, Portuguese 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
Decision No. 1056/10 REASONS (i) Introduction [1] This appeal was heard in Toronto on May 31, 2010. The worker appeals the February 29, 2008 decision of Appeals Resolution Officer (ARO) S. McKinnon. The ARO denied the worker entitlement to a redetermination of her current 30% Non-Economic Loss (NEL) award for chronic pain disability (CPD). [2] The worker attended the hearing and was represented by Ms. Fatima Goncalves, a paralegal. The employer did not attend. The worker testified, with the assistance of Portuguese interpreter, Ann Ventura, and Ms. Goncalves made submissions on behalf of her client. (ii) The issue on appeal [3] The only issue in this appeal is whether the worker has entitlement to a redetermination of her NEL award for CPD. (iii) Applicable law [4] The workplace injury giving rise to the worker s claim occurred in 1995. Therefore, the pre-1997 Workers Compensation Act (the Act) applies. (iv) Background [5] The worker sustained a compensable injury on December 31, 1995 when she slipped and fell while performing regular job duties as hotel room cleaner. Her claim was initially accepted on the basis of organic injuries to her head, chest, neck and back, and was later adjusted on the basis of the worker s diagnosed CPD condition. She was granted a 30% NEL award for CPD, based on an assessment by psychologist, Dr. Morris, conducted on November 22, 1999. [6] In April 2007, Ms. Goncalves wrote to the Board asking for a NEL redetermination. [7] After consulting with a Board Medical Advisor, the Claims Adjudicator assigned to the worker s file, denied entitlement on the basis that there had been no significant deterioration in the worker s condition since the original NEL assessment. [8] The Adjudicator s decision was upheld by ARO McKinnon in her February 29, 2008 ruling. (v) The worker s position [9] Ms. Goncalves takes the position that the worker suffered a permanent significant worsening of her CPD condition as of February 13, 2003 and should be entitled to a NEL redetermination on that basis. [10] The worker testified that she had to stop work in 1998 following her workplace injury due to pain throughout her body. She identified the areas of pain as her head, ears, neck, spine, arms, hands, legs and ankles. According to the worker, all of these body parts were hurting at the time of her NEL assessment in 1999.
Page: 2 Decision No. 1056/10 [11] The worker testified that she began to receive psychiatric care from Dr. Sanchez shortly after her injury, and she continues to see him on a monthly basis for prescription drug medication and counselling. [12] She has also been under the care of family doctor, Dr. Fernandez, since the time of her workplace accident, and has received periodic assessments over the years from physiatrist, Dr. Kerwin. [13] During her testimony, the worker attempted to recall her physical and psychological condition at the time of the original NEL assessment in 1999. In addition to identifying the body parts described above, the worker testified that she was able to walk for short distances, sometimes needing the assistance of a cane. She was seeing Dr. Fernandez on a bi-weekly basis, and he was treating her with pain relief medication. Her sessions with Dr. Sanchez and Dr. Kerwin were held on a monthly basis, and Dr. Sanchez was prescribing drugs to ease anxiety and to help her sleep. The worker was married at the time of the original NEL assessment, but separated from her husband shortly after that. She then lived on her own, but family members would drop by frequently with prepared food and to make sure she was coping on her own. She was able to look after most household tasks herself, but was assisted regularly by her sister and daughter-in-law. She occasionally drove a car. Pain prevented her from getting a full night s rest, and she was reliant on sleeping pills. [14] The worker also described her current condition. According to her, she continues to suffer pain in the same body parts, and she described the intensity of pain as approximately the same as it was in 1999. She also continues to use a cane on an occasional basis. The worker now sees Dr. Fernandez and Dr. Sanchez both on a monthly basis, primarily for drug management purposes, but is no longer treated by Dr. Kerwin. Her sister and daughter-in-law continue to be actively involved in the worker s life, dropping by most days to bring food, clean the home and do the worker s laundry. They also take the worker out on excursions approximately three to four times per week, which she enjoys. She sees her three grandchildren, ages 15, 12 and 7, approximately two to three times per month when they come to visit her, and she enjoys the time she spends with them. According to the worker, although she continues to live alone, she has had a relationship with a man for the past two years. They are not intimate, but spend quite a bit of time together and she describes him as very helpful. The worker testified that she continues to be able to look after personal hygiene on her own, with occasional assistance from her sister or daughter-in-law. They also continue to provide most of her meals. She continues to have difficulty sleeping due to pain. [15] The worker described being involved in a motor vehicle accident in December 2005. Her car was hit from behind while stopped at a stop sign. The other driver helped the worker get back home, and she did not go to the hospital after the accident. According to the worker, she consulted with Dr. Fernandez who referred her for physiotherapy treatments for her head and lower back. The treatments helped and, in the worker s view, she fully recovered from the accident-related injuries. She testified that she was in a great deal of pain before the motor vehicle accident due to her workplace injuries, and this has never resolved, but the specific head and low back pain associated with the car accident cleared up after a short period of treatment.
Page: 3 Decision No. 1056/10 [16] Ms. Goncalves submits that medical evidence in the Case Record substantiates a marked deterioration in the worker s condition since the time of her December 1999 NEL assessment. [17] Specifically, Ms. Goncalves points to increases in both dosage levels and the number of different drugs prescribed by treating physicians, as well as more serious descriptions of the worker s overall health condition and psychological diagnoses over time. [18] Ms. Goncalves also submits that the December 2005 motor vehicle accident was not the cause of any permanent deterioration in the worker s medical condition, as found by the Board Medical Advisor and relied on by ARO McKinnon in her ruling. In Ms. Goncalves view, the accident was minor and any injuries attributable to that incident resolved quickly with physiotherapy treatment. [19] As far as the appropriate permanent worsening date is concerned, Ms. Goncalves submits that it should be either February 18, 2003 when Dr. Fernandez assessed the worker s condition as severer and substantial, or May 3, 2004 when Dr. Kerwin described the worker s cervical and lumbar pain as increasing in severity. (vi) Analysis and findings [20] In determining whether the worker is entitled to a NEL redetermination, I must first look to the medical evidence that was taken into account at the time of her initial NEL assessment in 1999, and compare it to the relevant medical evidence on file since then. If the worker has suffered a significant deterioration of her CPD condition since the original assessment, I will refer the worker s file back to the Board for reassessment. If, on the other hand, this situation is not established on the evidence, then I will confirm the current NEL award level as appropriate and dismiss the worker s appeal. [21] Board OPM Document No. 18-05-09 states: A significant deterioration is a permanent worsening of the work-related medical condition occurring after the most recent NEL medical assessment. The significant deterioration must be demonstrated by a substantial change in medical findings. [22] Were I to decide this case on the basis of the worker s description of changes to her overall health and activities of daily living between 1999 and the present, I would be hard pressed to find in her favour. In my view, the worker s description of her condition today was not significantly different that it was 11 years earlier. [23] However, the worker s testimony is not the only relevant evidence in this regard. OPM Document No. 18-05-09 requires me to look to medical findings gathered since the time of the original 1999 NEL assessment and to determine whether they demonstrate a permanent worsening. [24] As Ms. Goncalves points out, the worker s drug medications have increased in both dosage and quantity since 1999. In December 2000, Dr. Sanchez prescribed 150 milligrams of Bupropion, an anti-depressant. This dosage stayed the same in May 2001, but he added new anti-psychotic medication, Nozinan. In July 2001 a second anti-depressant drug, Northriphtylene, was also added, and by October 2004, drug dosages had been increased.
Page: 4 Decision No. 1056/10 [25] The worker s pain relief medication also increased during this period. When Dr. Kerwin first examined the worker in 1999, she was taking Tylenol #2 two-to-three times per day, 37.5 milligrams of Effexor as well as single doses of Naprosyn and Arthrotec daily. By July 2001, Tylenol dosage had increased to Tylenol 3, and in April 2003, Dr. Kerwin was reporting that Vasotec, Ranitidine and Celebrex drugs had been added to the worker s treatment regime. Advair and Nasonex were also added in July 2003, and by May 2004, the worker was also taking Atenolol for hypertension, Methoprazine for anxiety and Zostrix HP cream for topical pain relief. [26] When the worker was examined by Dr. Morris in December 1999 in the context of her original NEL assessment, he found that she met the criteria for a diagnosis of Pain Disorder Associated With Both Psychological Factors And A General Medical Condition. He pointed out that the worker was showing some symptoms of depression, and that she was suffering an impairment of moderate severity. [27] In July 2000, treating psychiatrist, Dr. Sanchez, agreed with Dr. Morris diagnosis, adding that she was also suffering from a Dysthymic Disorder as a consequence of her pain disorder. He continued with this diagnosis through various reports up to May 17, 2004. At that point Dr. Sanchez began to conclude that the worker s symptoms were more serious and changed his diagnosis to Pain Disorder Associated with a General Medical Condition and A Secondary Major Depressive Disorder. He described the worker s symptoms as severe and assessed her impairment at the high range of moderate and marked impairment. In his most recent report, dated August 10, 2009, Dr. Sanchez alters the order in which he lists the worker s diagnoses, leading with Major Depressive Disorder, and describes her symptoms as having deteriorated significantly since 1999. [28] In his February 18, 2003 report, family doctor, Dr. Fernandez also described the worker s overall health status as having deteriorated over time. He offered his medical opinion that the worker was suffering from a prolonged severe and substantial disability and described her as being severely disabled on the basis of both her physical and psychological complaints. [29] Dr. Kerwin, who treated the worker for physical pain symptoms during the 1999-2007 period does not identify many significant changes in the worker s overall pain symptoms. However, as pointed out by Ms. Goncalves, he does indicate in a May 3, 2004 report that the worker s cervical and lumbar pain systems were becoming increasingly severe. [30] Based on the medical reporting since the time of the 1999 NEL assessment, I am persuaded that the worker has experienced a permanent worsening of her CPD condition. She requires increased levels of various drug therapies to control both pain and psychological impairments. As well, treating physicians, in particular psychiatrist Dr. Sanchez, have diagnosed the worker s condition as deteriorating over time to the point where her pain disorder is no longer just associated with psychological factors and general medical conditions, but she is now suffering from a Major Depressive Disorder, a more significant and serious diagnosis that evidences a marked deterioration in her condition. [31] As far as the effective date for permanent worsening is concerned, I find that Dr. Sanchez s May 17, 2004 report best reflects evidence of significant change in the worker s
Page: 5 Decision No. 1056/10 health status. It was at that point that Major Depressive Disorder was first diagnosed and Dr. Sanchez began to describe the worker s symptoms as severe. This is in marked contrast to Dr. Morris December 1999 assessment, when he diagnosed some symptoms of depression and impairment of moderate severity. [32] Finally, I note that the worker s motor vehicle accident took place in December 2005, approximately 18 months after evidence would suggest that her CPD condition had significantly deteriorated. It would appear on the evidence that this accident was minor in nature and did not result in any permanent injuries, but in any event it took place after May 14, 2004 so has no bearing on my finding that the worker is entitled to a redetermination of her NEL award. [33] In summary, I find that the worker has suffered a significant deterioration in her CPD, effective May 14, 2004, and is therefore entitled to a redetermination of her NEL award pursuant to OPM Document No. 18-05-09.
Page: 6 Decision No. 1056/10 DISPOSITION [34] The appeal is allowed. [35] The worker has entitlement for a redetermination of her 30% NEL award for CPD, with a permanent worsening date of May 14, 2004. [36] The Board is directed to provide the worker with a NEL reassessment to determine whether she is entitled to an increase in her current NEL award. DATED: June 2, 2010 SIGNED: T. Mitchinson