WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090052
OBJECTION BY: Worker
WORKER:
EMPLOYER: Did Not Participate
HEARING LOCATION:
DATE: July 10, 2009
ATTENDEES:
Worker:
Worker Representative:
ISSUES
The worker claims full loss of earnings (LOE) benefits on the basis that he is unemployable.
The worker claims entitlement for psychotraumatic disability.
HOW THE ISSUES ARISE
The worker reported on April 23, 2002 that he had suffered a left shoulder and right hip injury on the previous shift. According to the information contained on the Health Professional’s Report (Form 8), the worker related that he was attempting to fix a jamb and he slipped and fell approximately 6 feet. Apparently, as he fell, he hit his left shoulder and hit his right hip.
The worker was treated conservatively and eventually accepted back to work on a modified job. The worker was subsequently advised that the job was no longer available after January 28, 2003. The Workplace Safety and Insurance Board (WSIB) then offered labour market re-entry (LMR) services. The worker was placed in educational upgrading and subsequently obtained his AZ driving license. Following a period of job search, the worker was unable to locate suitable employment and benefits were terminated.
The worker subsequently claimed entitlement under the WSIB psychotraumatic disability Operational Policy Manual (OPM) document however. The worker was referred to the psychological trauma program (PTP) and the claim was also reviewed by the WSIB psychological consultant. The psychological consultant recommended that there was “mildly convincing evidence of some bonafide psychiatric disturbance (possibly major depressive disorder) dating from 2005 with moderate pre-existing and coexisting risk factors.”
Based on the opinion of the WSIB psychological consultant, it was concluded that the worker’s psychological problems were not related to the injury under the claim.
At the hearing, the worker provided testimony.
AUTHORITY REFERENCE
Operational Policy Manual (OPM) document(s):
18-03-02 – Payment of LOE Benefits
19-03-05 – LMR Plans
15-04-02 – Psychotraumatic Disability
ASSESSMENT OF THE EVIDENCE
Full LOE
It is the submission of the worker’s representative that the worker should be entitled to full LOE as his psychotraumatic condition renders him totally unemployable. In addition, she submitted that the job of a delivery or courier driver is not physically suitable for the worker’s left shoulder disability for which he receives a non-economic loss (NEL) award of 5 per cent.
The worker testified that he did complete the AZ driver training program, however, was unable to obtain a suitable placement or job because of his lack of driving experience. He noted that there were insurance coverage difficulties with any prospective employers due to his lack of driving experience.
In terms of other driving jobs, the worker states that he has applied for lighter jobs, such as pizza driver, without success. He stated that in addition, he did obtain employment through a temporary agency. He recalled working with a furniture company; however, the heavy lifting bothered his shoulder. He worked there for about two months and had to quit because of increased left shoulder pain. He then tried working in a factory on a chair making line and lasted two to three days. He had to leave that work because it required above shoulder movements. He also recalled working for some two to three days at a job unloading trucks, however, was unable to continue because of left shoulder pain.
The worker states that he stopped looking for work in June 2008. His sources of income are his WSIB benefits and his wife’s income.
In looking at the available medical evidence on file, the worker does not have significant physical restrictions which would prevent him from working at a suitable job.
The family physician, in a note of March 14, 2005 stated; “he may do the heavy equipment operator training program. His shoulder appears to be well healed and the program should not be harmful to his shoulder.”
He has no other medical report on file with regards to the worker’s organic left shoulder disability with any other limitations or recommendations. The available medical evidence therefore supports that from an organic perspective, the worker is capable of seeking suitable employment.
I do note that the WSIB provided extensive labour market re-entry (LMR) training for the worker and he was able to successfully complete the AZ truck driving program and obtained the requisite license. I also note that the worker was unable to obtain a job placement for permanent employment because of the insurance issue.
However, as noted by the other information on file, there is no reason to indicate that the worker is incapable of obtaining any other type of driving job. There are other types of jobs that the worker can perform that would include light delivery. Such jobs as pizza delivery, pharmacy delivery, or even light courier duties would all be suitable to the worker’s left shoulder restrictions. I therefore do not accept that the worker is unemployable due to his organic left shoulder disability.
The available evidence does not support that the worker is totally unemployable. The worker is relatively young and has transferable skills. He is fully capable and does continue to drive.
With respect to the worker’s psychotraumatic disability, this will be dealt with later in the decision, however, the evidence does not support that the worker has entitlement for psychotraumatic disability. Therefore, I do not accept that his totally incapable of working as a result of a work-related psychotraumatic disability.
Psychotraumatic Disability Entitlement
The worker provided testimony at the hearing with regards to prior psychosocial issues as follows:
In 1994, he had a separation from his then partner (she later became his wife in May 1995 after they reconciled). In 1994, he separated for approximately one month.
Prior to his 2002 accident, he had a disagreement with his wife when he was charged and issued a restraining order. They separated for some two months and he was ordered to take an anger management course.
In 2004, he applied for his daughter to emigrate from Jamaica to Toronto and at that time he had money issues as his wife was on maternity leave and needed to look for a larger (3 bedroom) apartment which he could not afford at the time. The worker confirmed in his testimony at the hearing that he has continually been in receipt of full benefits from the WSIB up to October 2005.
In 2005, he was charged by his landlord for breaking his apartment lease and for damage to the apartment. In 2006, he was ordered to pay $2000.00 to the landlord. In 2006, he was behind on his rent and was ordered to pay, which he did in 2007.
The PTP report dated October 22, 2007 (page 9 of 17) notes other psychological stressors throughout the worker’s life, including; witnessing a fatal accident in which a pedestrian was killed in 1991 and having to identify a friend’s body at a morgue in 1987 or 1988. Marital tension, financial difficulties, unemployment, family discord, separation from his wife, change in residency and legal problems.
The report of the PTP dated October 22, 2007 noted on page 16 that the results from the assessment clearly indicate that the worker was exaggeration or fabricating the presence of his psychological symptoms. The discrepancies are outlined on page 16. The conclusion was that the worker’s presentation style during the assessment does not allow for an accurate determination of presence or severity of any current psychological symptoms. It was noted that this does not preclude the possibility that the worker is simultaneously experiencing bonafide symptoms. The report concluded that given the worker’s presentation style during the current assessment, it did not allow for an accurate determination of the presence or severity of any current psychological symptoms. The Axes 1 diagnosis was noted as malingering.
- The worker’s treating Psychiatrist, Dr. Kiraly responded to the PTP conclusions in his letter of May 21, 2008 to the worker’s representative. In it, he noted that it was his opinion that the worker was suffering from major depression and chronic pain syndrome and was not malingering.
It is important to note that in the reports on file, the worker did not have ongoing entitlement for his right hip or low back as the WSIB has accepted that these conditions had resolved. The only area of ongoing disability accepted by the WSIB was the left shoulder. However, it appears that the worker has sporadically mentioned his back as an ongoing area of disability and this as having an impact on his psychological condition and the perpetuation of the nonorganic symptoms. Given that the WSIB has not accepted the ongoing right hip or low back conditions as related to the claim, the opinion of Dr. Kiraly that these conditions have contributed to the ongoing perpetuation of the psychological symptoms is not accepted.
In addition, I note that there are multiple discrepancies with regards to the question of whether the worker hears voices (some of the medical reports on file indicate that this does not occur and others indicate that this occurs multiple times on a daily basis).
The claim was reviewed by Dr. Smith, Psychologist, and his opinion is contained in memo 189. Dr. Smith concluded that there is mildly convincing evidence of some bonafide psychiatric disturbance (possibly major depressive disorder) dating 2005 with moderate pre-existing and coexisting risk factors. He also noted that there is little evidence of total disability based on the impact of psychiatric symptoms alone.
The worker’s representative submitted the opinion that there is “mildly convincing evidence” meets the test for entitlement in WSIB cases. The test of entitlement is not one of there being a mild relationship but rather one of the workplace accident/injuries being a significant contributing factor to the onset of the disability.
In this case, the worker has a relatively minor left shoulder injury which is recognized by the 5 per cent NEL award. In addition, there are multiple non-compensable stressors previously identified which have contributed significantly to the onset and perpetuation of the worker’s depression. The workplace injury and its sequelae in this case, are in my opinion, a relatively minor contributing factor to the perpetuation of the worker’s depression.
The available evidence therefore does not support that the workplace accident/injury and its sequelae are a significant contributing factor to the development of the worker’s depression. The worker therefore does not have entitlement under the WSIB psychotraumatic disability policy.
CONCLUSION
The worker is not entitled to full LOE as the evidence does not support that he is totally unable to earn.
The worker does not have entitlement under the WSIB psychotraumatic disability policy.
The objection is denied.
DATED August 10, 2009
N. Kissoore Appeals Resolution Officer Appeals Branch