WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision NUMBER: 2009-0001
OBJECTION BY: Worker
HEARING DATE: April 7, 2009
ATTENDEES: Worker, Worker Representative
ISSUES
The worker is objecting to the denial of entitlement for fibromyalgia; the discontinuation of temporary disability benefits effective October 28, 1993; the finding that the work offered by the employer was within her functional abilities; the quantum of the non-economic loss (NEL) redetermination and the associated permanent worsening date (PWD). The relevant decisions are dated November 16, 1993, March 3, 2008, and February 2, 2009.
HOW THE ISSUES ARISE
On August 26, 1991 this worker slipped and fell, sustaining a compression fracture of the L2 vertebral body. A non-contrast CT scan from the T12 to L2 level was carried out April 3, 1992 and demonstrated well marked wedging of the body of L2 anteriorly with loss of approximately two centimetres in height. There was no evidence of encroachment on the spinal canal and the spinal canal diameters were normal.
Arrangements were made for the worker to undergo a multi-disciplinary health care assessment at a Regional Evaluation Centre (REC) and the worker attended June 15, 1992. The impression was that in addition to the compression fracture there was a large emotional overlay with reactive depression and arrangements were made for a psychological assessment. The psychological assessment was carried out July 2, 1992. The psychologist confirmed reactive depression and recommended activities that would distract the worker and force her to focus on something other than the pain and its effects. The psychologist acknowledged that it may be difficult for the worker to obtain psychotherapeutic services in her language and suggested the possibility of medication being considered.
In a decision dated March 29, 1993 the adjudicator advised the employer representative that entitlement was accepted for “psychiatric disability”.
From April 13, 1993 to April 23, 1993 the worker attended the former Occupational Recovery Program (ORP). The discharge diagnoses were:
Major injury diagnosis: thoracolumbar strain
Other diagnosis: compression fracture L1 vertebrae
Secondary diagnosis: somatoform pain disorder
Following discharge from the ORP the worker was immediately admitted to hospital in her local town for observation and consultation by a gastroenterologist due to abdominal distention, nausea and vomiting. Gastroscopy and biopsy was carried out April 28, 1993 and revealed single antral erosion. On the basis of her clinical symptoms the gastroenterologist’s impression was that the vomiting was the result of reflux and the worker was discharged from hospital.
On October 25, 1993 the vocational rehabilitation caseworker met with the worker and advised that the employer had offered suitable work within her functional abilities and the worker was to start work on October 27, 1993. The worker refused this offer citing pain levels. In the decision dated November 16, 1993 the adjudicator advised the worker that she was not entitled to temporary disability benefits effective October 28, 1993 as she refused suitable work within her functional abilities.
In the decision dated July 14, 1994 the adjudicator granted entitlement under the Chronic Pain Disability (CPD) policy but confirmed that despite this additional entitlement the work offered by the employer remained suitable and within the worker’s functional abilities.
The worker attended a NEL assessment May 2, 1995 and based on the findings her impairment of the whole person resulting from the CPD was rated at 10%. The worker was advised of this in the decision form letter dated June 23, 1995.
The adjudicator denied a NEL redetermination in the decision dated February 18, 2002. The worker objected and the file was referred to the Appeals Branch to consider the worker’s objection to that decision as well as the decision dated November 16, 1993. Following a preliminary review of the file evidence the Appeals Resolution Officer (ARO) returned the file to the operating area for further enquiry and action.
In the decision dated March 3, 2008 the adjudicator denied entitlement for fibromyalgia; granted a NEL redetermination with a PWD of April 1, 2000; and confirmed the work offered by the employer remained within the worker’s functional abilities.
The worker underwent the NEL redetermination and her NEL benefit was increased to 20%. She was advised of this in the decision form letter dated February 2, 2009.
The file was referred back to the Appeals Branch and to this ARO to consider the worker’s objections to the decisions dated November 16, 1993, March 2, 2008, and February 2, 2009.
AUTHORITY REFERENCES
Policy Document 11-01-05, Determining Maximum Medical Recovery
Policy Document 11-01-14, Reconsiderations of Decisions
Policy Document 15-04-03, Chronic Pain Disability
Policy Document 18-04-02, FEL Presumption
Policy Document 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders
Policy Document 18-06-03, Definitions for Adjudicating Pre-1998 Claims
ASSESSMENT OF THE EVIDENCE
The substantive issue in this claim is the worker’s entitlement to temporary total (TT) disability benefits from October 28, 1993 to December 1, 1994 and future economic loss (FEL) benefits from December 1, 1994 to date and continuing. The worker was denied TT disability benefits from October 28, 1993 to December 1, 1994 on the basis that she refused suitable work within her functional abilities. The FEL adjudicator accepted the operating area’s opinion about the work offered and found the worker was only entitled to a FEL sustainability benefit effective December 1, 1994. The FEL sustainability benefit decision was confirmed in December 1996 and December 1999. The worker’s functional abilities are critical to the substantive issue and for this reason I will first address her non-organic entitlement.
On August 26, 1991 the worker sustained a compression fracture of the L2 vertebral body. This type of fracture generally does not result in permanent impairment. The worker has been examined by various specialists who are consistent in their opinions that the worker’s complaints of pain are far in excess of objective findings.
The worker has also been assessed by various psychologists and psychiatrists and their opinions are varied. The initial psychological assessment was requested by the REC assessment team. The July 2, 1992 report from Psychologist A states,
“...(The worker) was accompanied to the interview by her brother, who is quite proficient in the English language, and acted as translator for his sister. She can understand a little English but this was not adequate for the present screening requirements. (The worker) is married but her husband has not as yet been able to join her in Canada.
It was apparent during the screening that this woman is quite depressed. Through her brother, she indicated that she cries very easily, does not feel that she is as strong as she used to be and is in fact grieving the loss of her previous level of functioning. She worries that she might never be able to have children, which would be quite traumatic for her. She tends to spend a great deal of time preoccupied with her physical difficulties. In addition (the worker) misses her husband and feels lonely. The duration of the problem is another cause for concern and worry. As is often the case, she tends to be reclusive, to be less interested in others as well as avoid certain activities. Her brother takes a rather stern approach which he feels she needs in order to more quickly adjust to the situation. She receives support from her sister and so he sees his role as one of problem solver. He admitted to being fed up with her crying and “self pity”.
It was my impression that (the worker’s) emotional reaction to her pain is more than likely having a negative effect on her ability to deal with the situation effectively. She is experiencing a reactive depression which could persist unless she makes definite attempts to become more involved in life again. Her brother is going away for approximately two months and he plans to take her to their uncle’s house where she will be forced to interact with more people and be exposed to their children. She sees this as a good idea since she is aware of her depression, and would like to fight it.
(The worker) needs to find activities which would distract her from herself and force her to focus on something other than the pain and its effects.
Since it might be difficult to obtain psychotherapeutic services in her language, the possibility of medication should be considered.”
The file was reviewed by a psychological consultant and memo #38 dated December 17, 1992 states, in part,
“We now have a recent psychological report (2 July 1992) on file from (Psychologist A). She indicates that (the worker) is suffering reactive depression related to her pain.
(Psychologist A) recommended that, if (the worker) cannot be referred for psychotherapy with a practitioner who speaks her language, medication should be considered.
Based on the above, it appears that this patient is experiencing some degree of psychological disability in the form of a depression which, in my opinion, is compatible with her injury and its sequelae. In other words, there appears to be definite justification for considering psychotraumatic entitlement in this case.
Whether there is a permanent psychological impairment in this case will depend upon the outcome of the treatment recommended by the psychologist.”
The worker testified that she did not receive any psychotherapeutic services nor was she prescribed medications for the reactive depression.
While attending the ORP the worker was assessed April 15, 1993 and April 16, 1993 by Psychologist B. His report states,
“She has been living with her mother and sister. She has been divorced after her husband learned that she would not be able to have children because of her broken back…
…No testing was possible in view of her limited linguistic ability in English. She presented in a co-operative and friendly manner, but her mood was low.
This patient suffers from a significant level of depression. She has made some progress, but not sufficient enough to allow her participation in the program even though would like to improve and she claims to be willing to exercise. Most likely her involvement would be at a very low level…”
The DMS III-R diagnoses were:
Axis I Major depression, single episode, moderate
Axis II Deferred
Axis III Work-related injury
Axis IV Psychological stressors: difficulties in coping with the pain, divorce, poor
Prospect for adjustment compatible with education
The global assessment of functioning (GAF) was “in the 50’s”.
On April 21, 1993 the worker was assessed by Psychiatrist A. His report states,
“…Her routine at home is one in which she is very well supported by her mother and sister. They constantly attend to her…Emotionally she describes more depression in close proximity to the accident when she thought she would never be able to sit down again. Now she describes anxiety and depression really in proportion to her pain. If her pain is not too bad her mood is not too bad. If her pain is worse she does get frustrated and somewhat depressed. She does not report a pervasive depression…
Within the household she is responsible for cleaning her room and attending to her clothes and she is able to do this. Socially she does not have much in the way of friends although there is a friend of her brother who is taking an interest in her. He apparently visits her every day and chats with her and takes her out for walks…
The patient was found lying flat on the couch in the waiting area. She walks in the interview room quite slowly grimacing a great deal. In the interview she is only able to sit for short periods and then needs to stand. She is quite focused on her pain symptoms. She does not look overly depressed but rather more once again focused on her pain. She describes some anxiety and frustration and some depression but relates these very directly to the degree of pain she is feeling…
This patient suffered a injury on August 26, 1991. This occurred in the context of some major life changes. She came to Canada in March of 1991 and took a menial job after teaching biology in Lebanon for four years. There was the difficult situation with her husband and trying to get him to come to Canada. There was a lot for her to cope with. In this context she slipped and fell and has developed chronic pain problems. There has been some anxiety and depression that seems in proportion with her pain symptoms. There has clearly been a good deal of regression with her being taken care of in the context of her family by her mother and sister…Diagnostically I would view her as suffering from a somatoform pain disorder with some anxiety and depression…”
With respect to the “major life changes” reported by Psychiatrist A, the file was reviewed by a psychological consultant. Memo #58 dated July 20, 1993 states, in part,
“In (the worker’s) case, there does not appear to be any evidence of a pre-existing psychological impairment…However, as noted by (Psychiatrist A), her injury did occur in the context of some major life changes. Most notably, (the worker) immigrated to Canada in March 1991. She came here without her husband. It was her intention to have him join her later. However, he never did come here. Apparently once she injured herself, he lost interest in her and she received divorce papers in the mail in August of 1992.
There are few details available regarding the relative timing of the major life changes and (the worker’s) injury. Therefore, it is difficult to say there her life experiences occurred prior to her accident and, hence, could serve to make an argument for SIEF. However, immigrating and losing one’s husband to divorce are fairly significant life stressors which could conceivably make one more vulnerable to the development of psychological problems, or at the very least, might be prolonging the period of disability.
…The severity of the pre-existing condition would be considered minor in this instance.”
It does not appear that the psychological consultant fully considered the July 2, 1992 report from Psychologist A. At the time of that psychological assessment the worker was not in the midst of divorce; she was still waiting for her husband to join her in Canada.
On April 19, 1994 Psychologist C provided a detailed report. This states,
“(The worker) presented as a rather severely debilitated, physically rigid, constricted, slow and cautious moving individual. She reported being approximately eight months pregnant and clearly experienced continuous pain and discomfort in even the most simple of movements. She was not able to either sit or stand for long periods and had great difficulty managing the stairs in my office…Bodily and non verbal expressions of pain and discomfort were noted continuously throughout the interview.
…Her pain was reported to be more intense at this time in view of being pregnant and unable to take pain medication on a regular basis. Her activities around her apartment were extremely limited at this time. She was able to take short walks but required much rest and support after even brief physical exertions. She seemed quite dependent upon her significant other and her sister for help around her apartment even to the point of occasionally needing assistance for bathroom activities.
…She reports experiencing an increasing isolation and withdrawal from others…
…Test responses reveal (the worker) to be a strongly submissive and conforming individual. She appears to be quite dependent upon others for leadership and approval. In situations where she perceives herself as non-complaint or uncooperative she likely experiences high levels of stress and anxiety. She clearly tends to keep troubling issues to herself and turns her feelings inward which may lead to psychosomatic ailments. It would appear that she may even tend to deny the full impact of her physical ailments in order to avoid presenting herself as problematic or interfering of the comfort of others. Her sensitivity to the appraisals of others is likely a major factor in the high stress levels that she seems to experience at this time. Generally she presents as a passive-dependent personality. She is particularly dependent at this time upon family but I would also expect that she may present to them as a persevering, courageous woman who is handling a very bad situation in a most impressive and courageous manner.
Symptomatic distress levels are clearly in the clinical range. She evidences clear obsessive-compulsive tendencies and these symptoms may clearly be geared to avoid dealing with her chronic pain. Indications of personal inadequacy and a devalued self worth are prominent. High levels of phobic anxiety (agoraphobic in nature) and clinical depression are clearly noted across all measures. A high level of somatisation is also clearly indicated.
Although her initial injury was medically identified there is a very high likelihood that the continuation of excessive, debilitating pain is reflective of somatization tendencies on her part. This woman is clearly not a malingerer but seems to have responded to her initial injury with a strong overlay of anxiety and depression which have led to a chronic pain disorder. Her tendency to internalize personal hardships coupled with the demands of a new country and job, some interpersonal problems, and a strong support system of caring and concerned family members have unfortunately likely exacerbated her symptomatology although I would believe this to be beyond the aware of (the worker).
Her pregnancy obviously complicates her present difficulties considerably, both with respect to the intensity of her physical pain and the stress level that she is experiencing. At this specific time, it is not possible to determine how much pain or suffering is due to the injury and how much is related to her fears and stresses relating to her pregnancy. What is clear is that this woman is experiencing emotional difficulties and an emotional style that clearly influences the presence and the severity of her pain.
Assessing the presentation of symptoms and the nature of the personality characteristics and coping style presented by this woman I believe that she might respond to a program of traditional outpatient psychotherapy with focus on pain management strategies. The longevity of the symptoms and the limited language skills however would suggest a very guarded prognosis of change and slow progress would be expected…”
This report is based upon an interview with the worker and her husband, the completion of a series of psychometric tests, and review of relevant medical/clinical reports. The psychological consultant gave weight to the opinions expressed as stated in memo #77 dated April 26, 1994,
“Please refer to (Psychologist C’s) 19 April 1994 psychological report. In it, he notes that (the worker) displayed considerable non-verbal pain behaviour and that psychological testing suggested a moderate level of depression. He concludes that her injury had produced a strong overlay of anxiety and depression which has led to a chronic pain disorder.
Based on the above report, it now appears that (the worker’s) disability is primarily related to her pain, with her anxiety and depression being secondary to that. Therefore, there may be some merit in considering whether this patient now fulfils the necessary criteria for CPD entitlement. Otherwise, given that (Psychologist C) does mention ongoing depression, there does appear to be an assessable degree of permanent psychological impairment.”
Entitlement was subsequently accepted under the CPD policy and arrangements were made for a NEL assessment.
I have considered all of the relevant evidence and conclude that entitlement was appropriately accepted under the CPD policy. The worker is completely pain-focused and although there may be some remaining organic impairment, it is impossible to evaluate the true degree of this organic impairment due to the worker’s pain behaviour.
On May 2, 1995 the worker underwent the NEL assessment. The report is generally consistent with what Psychologist C reported in his report; however, the NEL psychiatrist rated the worker’s behavioural disorder as being a mild impairment only and the NEL adjudicator rated the impairment of the whole person at 10%.
The degree of impairment for mental and behavioural disorders is based on the Mental and Behavioural Disorders Rating Scale and this is found within policy document 18-05-11.
Class 2, Mild impairment (5-15%) – impairment levels compatible with most useful function is described as,
“There is a degree of impairment of complex integrated cerebral functions, but the worker remains able to carry out most activities of daily living as well as before. There is also some loss in personal or social efficacy and the secondary psychogenic aggravations are caused by the emotional impact of the accident.
There is mild to moderate emotional disturbance under ordinary stress. A mild anxiety reaction may be apparent. The display of symptoms indicates a form of restlessness, some degree of subjective uneasiness, and tension caused by anxiety. There are subjective limitations in functioning as a result of the emotional impact of the accident.”
Class 3, Moderate impairment (20-45%) – impairment levels compatible with some but not all useful function is described as,
“There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress.
In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.
In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.”
In my assessment of the relevant evidence, in particular the April 19, 1994 report from Psychologist C and the NEL assessment narrative report, the worker’s impairment of the whole person would be more appropriately represented by Class 3, Moderate impairment. In particular I note:
While she was capable of looking after some personal needs in the home environment, the worker was extremely dependent on family members in most activities. Whether there was a cultural influence in this regard is not particularly relevant.
She demonstrated mild to moderate anxiety state, excessive fear of re-injury, and nurturing of strong passive dependency tendencies.
The worker’s emotional state was compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, and definite limitations in social and personal adjustment within the family.
Psychiatrist A, in his report of April 21, 1993, reported a clear indication of psychological regression.
The degree of impairment within Class 3 ranges from 20 to 45%. While I am not convinced that the worker’s impairment falls within the lower range of impairment, I am also not persuaded that her impairment is in the higher range. In assessing and weighing the evidence I conclude that her impairment falls within the mid range and is representative of a 30% impairment of the whole person.
At the time of the referral for the initial NEL assessment the operating area determined that the worker’s condition reached maximum medical recovery (MMR) October 28, 1993. There is no rationale on file for choosing this date; however, I must assume this date was chosen as it was the date TT disability benefits were discontinued.
A worker reaches MMR when significant improvement in the condition is not likely. In this particular case entitlement was accepted under the CPD policy. Entitlement is accepted under this policy when the pain arises predominantly from psychological sources. The behavioural disorder was first diagnosed July 2, 1992 but due to the language barrier the worker never received psychotherapy/behavioural modification/pain management treatment. As such I must conclude that her condition reached MMR July 2, 1992.
The worker was assessed by Psychiatrist B April 20, 2000. His report is not very detailed but states, in part,
“This woman is suffering from a dysthymic disorder with high anxiety as a result of chronic pain syndrome. I have decided to give her a trial with Desyrel to improve her insomnia and described daytime drowsiness and the need to refrain from alcohol and to be cautious if operating machinery or vehicles and she has understood. She may benefit from counselling, cognitive behaviour therapy, and relaxation techniques, however with this kind of case as long as she has chronic pain and physical limitation despite whatever psychological interventions we might undertake there may not be a significant improvement of her psychological condition or functioning…”
In response to the ARO’s return of the file to the operating area the file was again reviewed by a psychological consultant. His report dated August 9, 2007 states,
“As the most recent medical report on file is dated over seven years, I cannot offer comment on the current level of impairment and whether this would reflect worsening beyond the Minor range difficulties identified by (the NEL psychologist). (Psychiatrist B’s) April 2000 report does indicate the possibility of worsening, perhaps to the Moderate range of impairment, although the worker’s response to the medication recommendations is unknown…”
Arrangements were subsequently made for the worker to undergo another psychological assessment. The November 12, 2007 report from Psychologist D states, in part,
“…No psychological tests were administered because the difference in language and culture…
(The worker) would likely benefit from psychotherapy focussed upon pain management, reduction of depression and anxiety and improvement of her sleep. Her understanding of English remains limited so progress is likely to be slow.”
Again the file was reviewed by a WSIB psychological consultant and the February 18, 2008 report states, in part,
“…Based on available documents, the accepted diagnosis would likely be Dysthymic Disorder (Pain Disorder is not “covered” by the psychotraumatic disability policy). Her level of impairment appears to fall within Category 2 – moderate impairment.
(Psychologist D) has estimated the GAF score at 50, which suggests that (the worker) might have difficulty focusing effectively on day-to-day tasks. As such, her level of emotional distress might interfere with her ability to perform her job tasks. Although there are no specific psychological restrictions (this was not a phobia-producing injury), there is evidence of psychological symptomatology that might interfere in (the worker’s) ability to work effectively and prognosis appear to be guarded. I agree with (the psychological consultant) that there is evidence of worsening to the moderate range as of April 2000.”
The operating area concluded, based on the opinions of the psychological consultants, that there had been a worsening in the worker’s condition dating back to April 1, 2000 and on January 9, 2009 the worker attended another NEL assessment for the purpose of NEL redetermination. Based on that assessment, the NEL clinical specialist rated the worker’s impairment of the whole person at 20%.
I have carefully considered and weighed all of the relevant medical and clinical reporting and am not convinced, on balance, that there has been a significant change in the worker’s behavioural disorder since she was initially assessed for NEL. In other words, the 30% impairment of the whole person continues to date.
With respect to the diagnosis of fibromyalgia provided in the October 15, 2002 report from the specialist in internal medicine, I am not satisfied that there is sufficient evidence of this condition. The worker testified that her pain in centred across her low back with radiation down both legs. She denied experiencing pain in any other areas, except for occasional neck pain which, I suspect, is likely due to the rigid posture she has adopted. The classification criteria developed by the American College of Rheumatology requires that there be widespread pain in all four quadrants. Although there may have been evidence of trigger points, there is no evidence of widespread pain.
That brings us to the substantive issue and whether the work offered by the employer was suitable and within the worker’s functional abilities. At no time in the adjudication of this claim have pain limitations been taken into consideration. It appears, from my review of the memorandums, that there is a lack of knowledge and understanding of pain disorders and how pain limitations affect a worker’s ability to return to work. Consideration must be given to the limitations/challenges recognized in the Mental and Behavioural Disorders Rating Scale and in my assessment of the evidence, the work offered and the conditions under which the worker was expected to travel to and from work, were not within her functional abilities.
Policy document 18-04-02 states,
“When a worker is unable to return to pre-injury employment because of a work-related injury and is not working at any job at the time of the initial FEL determination, the WSIB presumes that the worker’s future loss of earnings is work-related. However, this presumption can be disproven by
an actual job offer
suitable and available employment or business (SEB), or
a worker’s lack of co-operation in a medical rehabilitation (MR) program, early and safe return to work (ESRTW) program, or labour market re-entry (LMR) assessment or plan.”
Although there was a job offer this was not within the worker’s functional abilities. I am unable to identify a SEB. The worker is now firmly entrenched in her pain behaviour. This is in part due to the lack of adequate and available treatment. Any behavioural therapy at this point is likely to achieve limited results. There has been no significant improvement in her condition since July 2, 1992. Given her current situation I find it highly unlikely that she would benefit from a LMR assessment or plan. After considering the evidence and policy requirements, I must presume that the worker’s FEL is work-related.
CONCLUSION
I conclude that:
The worker’s initial NEL determination and NEL redetermination do not appropriately reflect the impairment of the whole person resulting from the CPD. The worker’s NEL benefit is to be adjusted to 30% retroactive to July 2, 1992. Please refer to the body of this decision for a complete explanation and rationale.
The work offered by the employer was not within the worker’s functional abilities.
The worker is entitled to TT disability benefits from October 28, 1993 up to but not including December 1, 1994.
The worker is entitled to full FEL benefits from December 1, 1994 to date and continuing.
The worker’s objection is allowed, in part.
DATED this 8^th^ day of April, 2009.
L. Lum (Mrs.)
Appeals Resolution Officer
Appeals Branch