Worker v. Employer, 2010 CanLII 52787

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100118

OBJECTION BY: The Worker

EMPLOYER: Participant

HEARING DATE: June 02, 2010

PARTICIPANTS: Worker, Employer, Worker Representative, Employer Representative, Punjabi Interpreter

ISSUES

The worker requests:

1. An increase in the non-economic loss (NEL) permanent impairment rating for his left hand currently assessed at 4%.

2. Recognition that his high blood pressure condition is accident-related under this claim.

3. Recognition that his accident-related impairments interfered with his ability to fully participate in his labour market re-entry (LMR) plan in the fall of 2009.

4. The continuation of the psychotherapy treatment provided by his psychiatrist.

5. The re-instatement of his LMR plan.

6. The re-instatement of full loss of earnings benefits from October 15, 2009.

HOW THE ISSUES ARISE

This claim recognizes a workplace accident on August 12, 2005, in which the worker received a crushing injury to the 5^th finger of his left hand. The attending health care practitioners diagnosed lacerations and fractures of the left 5^th finger; they provided emergency care and ultimately carried out a partial amputation of the distal phalanx of the left 5^th finger on September 12, 2005.

The worker developed problems with depression and anxiety following this workplace accident, which the operating area recognized as accident-related. The employer appealed this decision and the matter came before an appeals resolution officer on November 8, 2006. She also considered issues relating to the worker's requests for LOE benefits in September and October 2005 during the hearing. The appeals resolution officer denied the employer's appeal and granted the worker's appeal in her decision of November 20, 2006.

The operating area also arranged for the worker to undergo assessment for his psychological conditions through CAMH starting in March 2006. He also came under the care of a psychologist from March 2007 with limited results. The worker received a 4% permanent impairment rating for the injury to his the left 5^th finger on September 2, 2008. Follow-up assessments through CAMH continued into 2009 with little improvement noted in his psychological condition.

The operating area had also arranged for the worker to attend a LMR assessment in May 2008 because his psychological conditions precluded a return to the pre-accident work environment. The assessment identified the need for extensive English language training to prepare him for any possible suitable employment or business (SEB). The operating area used the assessment results to approve a LMR plan to train the worker for the SEB of retail cashier on June 6, 2008.

The worker commenced the English language training on June 16, 2008. He experienced difficulties with memory, concentration and knowledge application on tests. In fact, the worker showed little if any improvement in his English language skills as of the February 23, 2009 LMR service provider report. These learning difficulties continued into the summer of 2009 and the worker’s English language skills actually regressed.

The worker attributed his learning difficulties to his psychological conditions and the associated memory and concentration problems. The LMR service provider recommended ending the English language training component and directing the worker to the customer service training component of his LMR plan. The worker did not wish to do so because he did not feel confident in his English language skills.

The worker's representative asked the operating area to recognize the worker's elevated blood pressure levels as accident-related. It denied the request on September 23, 2009. He apparently became involved in a verbal altercation with a fellow student on October 7, 2009 and the operating area closed out his LMR plan and reduced his LOE benefits on October 15, 2009.

The worker had also come under the care of a second psychiatrist in March of 2009. This health care practitioner continued to treat him into late 2009 and into 2010. The operating area noted that he was not benefiting from these treatments and it curtailed approval of the treatment on January 6, 2010. The worker's representative objected to all of these adverse decisions and the operating area referred all issues to the Appeals Branch for further review.

AUTHORITY

Operational Policy Manual documents:

• 15-05-01 Resulting from Work-Related Disability
• 17-01-02 Entitlement to Health Care
• 18-03-02 Payment of LOE Benefits
• 18-03-03 Reviewing LOE Benefits (Prior to Final Review)
• 19-03-01 Labour Market Re-entry (LMR) Overview
• 19-03-02 LMR Assessments
• 19-03-03 Determining Suitable and Available Employment or Business, and Earnings
• 19-03-04 Entitlement to LMR Plans
• 19-03-05 LMR Plans
• 19-03-10 Co-operating in LMR
• 22-01-03 Workers' Co-operation Obligations

ASSESSMENT OF THE EVIDENCE

The worker provided testimony at the hearing about:

• Coming under the care of a Punjabi-speaking psychiatrist shortly after his workplace accident and left hand injury of August 12, 2005 and continuing with regular follow-up (two to four times per month) until his retirement in 2006.
• Not actually achieving much improvement in his psychological state through this treatment program.
• Coming under the care of a psychologist in 2006; not benefitting from his treatment program either and being advised by this individual to locate another Punjabi-speaking psychiatrist or in-home therapist.
• Continuing to have pain and numbness in his left hand; recurring headaches, feeling anxious and depressed since the workplace accident.
• Also developing problems with high blood pressure since the workplace accident.
• Becoming easily irritated with his spouse and family and spending a lot of time on his own, as a result.
• Taking medications for pain, depression, to sleep better and for his high blood pressure condition.
• Having difficulty sleeping well in spite of the medication and feeling fatigued most of the time.
• Attending his LMR programs for four hours per day and commuting to the instruction sites by bus.
• Feeling under a significant amount of pressure to succeed in the LMR programs; becoming easily confused when learning and interacting with his teachers and becoming quite discouraged with his poor progress.
• Feeling that his English language skills improved somewhat in spite of all these difficulties.
• He and his last English teacher having disagreements and how this likely affected his performance and her attitude towards him.
• Not becoming involved in a verbal altercation with a fellow student on October 7, 2009; recalling only that he sat next to him on that date and being asked to leave the premises by the school administrators.
• Not having consumed alcohol prior to coming to school on that date as has been reported and believing the school staff fabricated this and the alleged school incident.
• Coming under the care of a second Punjabi-speaking psychiatrist since May 2009; seeing him on a monthly basis without any improvement in his psychological condition and actually feeling worse since October 2009.
• Wanting to get better and willing to put forth his best effort in any further LMR or medical activities directed.

The worker's representative notes that the first Punjabi-speaking psychiatrist prescribed Effexor for the worker's depression; his family doctor continued this drug and it can cause weight gain and result in high blood pressure. When the psychiatrist retired, the worker did not have access to a Punjabi-speaking psychiatrist again until 2009. Regardless of who treated him, he developed a major depressive disorder following his workplace accident and it has had a significant effect on his emotional, social and mental functioning.

The worker's representative believes that the teacher at the English language training centre likely exacerbated the events on October 7, 2009. She asserts that she understands Punjabi and interpreted threatening commentary between the worker and the fellow student. An individual who was there has provided a written statement confirming they were only conversing loudly in Punjabi and the worker did not smell of alcohol. Lastly, the worker cannot intake alcohol because of the medications he takes for his conditions.

The worker's representative asserts that the worker's English language did improve with the training he received. He is now willing to attempt the LMR program again and deserves a further opportunity. The treatment under the second Punjabi-speaking psychiatrist is progressing well and it is worthwhile to continue if only for the worker's long term health. Lastly, the NEL 4% permanent impairment rating did not take the hand and upper extremity numbness into account. For these reasons, the worker's representative requests the allowance of the worker's appeal.

The employer's representative asserts that the NEL rating accurately took into account all of the verifiable organic symptoms. The connection between his use of Effexor and his high blood pressure is unlikely. The worker is more physically active than he presents, noting the video surveillance conducted by the employer in May 2007.

The employer's representative notes that there is conflicting reporting about the incident at the school on October 7, 2009. The circumstances merit a thorough review before drawing conclusions. The employer's representative asserts that the school teacher or the LMR service provider have no reason to fabricate stories about the worker or others. He received extensive English language training without benefit and there is credible evidence that he has consumed alcohol resulting in the suspension of his driving licence.

Lastly, the employer's representative has reservations about whether further psychiatric treatment will assist the worker in coping with his situation or being more successful in his LMR. He has received treatment for his psychological condition since 2006 with very limited results. For these reasons, the employer's representative asks for the denial of the worker's appeal.

NEL RATING FOR LEFT HAND

The NEL clinical specialist used the range of movement (ROM) findings from the Roster physician report and she concluded they were consistent with the other file reports. The NEL clinical specialist also took into account lack of feeling at the tip of the left 5^th finger in providing a 7% rating for the left hand. This translates into a 6% rating of the left upper extremity and a 4% whole person rating.

The worker's representative asserts that the rating did not take into account the numbness experienced by the worker in his left hand and upper extremity. The employer's representative believes that the rating remains correct.

The NEL clinical specialist used the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition (revised), (the AMA Guides) to arrive at this permanent impairment rating. She referenced the appropriate tables within the AMA Guides as recorded on the itemized rating sheet. I have reviewed the ROM findings provided by the Roster physician and I accept that they are consistent with the file medical evidence as a whole.

The Roster physician report also details any other symptoms reported and those involving the worker's whole hand and left upper extremity are clearly missing. I note that he has mentioned these matters to other assessors and health care practitioners in the past. However, they are only of significance, if they represent true organic deficit or impairment. The medical consensus is that these symptoms are psychological manifestations. For these reasons, I am satisfied the 4% permanent impairment rating for the worker's left hand is appropriate and it is confirmed as correct.

BLOOD PRESSURE CONDITION

The operating area has concluded that the worker's elevated blood pressure is not accident-related. The worker's representative believes the condition relates to the side effects associated with the three year use of Effexor – weight gain from lack of activity and the onset of increased blood pressure levels. The employer's representative does not believe a connection exists.

The worker's representative has inferred a causal connection between the drug and the onset of high blood pressure is reported in the corresponding medication guide provided by the drug maker to regulatory agencies and to the public. I have reviewed the reports from the attending health care practitioners on file for support of this assertion and I cannot locate it.

The second Punjabi-speaking psychiatrist makes note of the condition in his clinical note of September 8, 2009 and defers to the family doctor for assessment and monitoring. The family doctor provided a medical note on September 15, 2009 setting out his accident-related conditions and simply stating that the worker had developed high blood pressure and been on medications since 2006.

One could read this to say the worker has used medication for high blood pressure since 2006. Alternatively, one could interpret this to say medication use since 2006 is a factor, as the worker's representative clearly has. This one questionable reference by the family doctor is not proof enough in my view. As the worker's representative has not provided a drug guide to support his request, I have checked the MedlinePlus internet site for the known side effects of Effexor (Venlafaxine) and note these listed:

• drowsiness
• weakness or tiredness
• dizziness
• headache
• nightmares
• nausea
• vomiting
• stomach pain
• constipation
• diarrhea
• gas
• heartburn
• burping
• dry mouth
• change in ability to taste food
• loss of appetite
• weight loss
• uncontrollable shaking of a part of the body
• pain, burning, numbness, or tingling in part of the body
• muscle tightness
• twitching
• yawning
• sweating
• hot flashes or flushing
• frequent urination
• difficulty urinating
• sore throat, chills, or other signs of infection
• ringing in the ears
• changes in sexual desire or ability
• enlarged pupils (black circles in the middle of the eyes)

If anything, the gastric side effects noted would likely result in weight loss and the worker himself testified he has lost weight because he does not feel like eating most of the time. As such, I conclude that the evidence does not support a relationship between the worker's high blood pressure and any of the treatment provided for the injuries resulting from his workplace accident.

LMR PLAN – CO-OPERATION & RE-INSATEMENT

In closing out the worker's LMR plan, the operating area case manager noted that he had been under the influence of alcohol and been involved in a heated exchange with a fellow student at the school in early October 2007. He had also progressed poorly in the program and did not appear to take direction well from his teacher. As a result of these behaviours, the school administrators had barred him from its premises. The case manager interpreted this as lack of co-operation in his LMR plan.

The worker's representative has put forth several factors that he believes played an unfortunate role in the worker not being able to co-operate in his LMR plan that need to be considered:

• He was not under the care of a Punjabi-speaking psychiatrist from 2006 until 2009 and this had a detrimental effect on his psychological state.
• Even the psychologist who treated him from 2006 to 2009 supported the need for a Punjabi-speaking psychiatrist or in-home therapist.
• The teachers at the last training facility appear to have developed an adversarial attitude towards him, affecting his progress and setting up the classroom controversy on October 7, 2009.
• The worker cannot drink because of the possible effects associated with the medications he takes for his accident-related conditions.
• In spite of some setbacks in the English language training, he has achieved some improvement and he is willing to actively apply himself to such training now.
• The worker's behaviours are not unusual and could be expected noting the serious psychological conditions he has developed post-accident.
• These behaviours should not be construed as being un-co-operative, as a result.
• Without further LMR services, it is unlikely he will return to the workforce.

The employer's representative agrees that the worker cannot return to the workforce without further LMR services. He has concerns as to whether he remains ready to return to the LMR plan from either a psychiatric or personal perspective and if success is possible noting the poor treatment and training results to date.

I have given both perspectives considerable thought and I have considered the reporting contained in the claim record from all concerned. The evidence in my view does not support the worker's request for re-instatement of his LMR plan. I also found that his testimony at the hearing clarified none of the discrepancies that exist in the resolution of the issues at stake.

The worker's attitude and behaviours remain the same as already noted by the majority of health care practitioners and LMR professionals: - inconsistent training and medical treatment results, inconsistent circumstance and symptom reporting and most importantly, inconsistent and almost non-existent self-application.

What has also surfaced in most of the reporting from the psychological and LMR professionals is the very distinct possibility of malingering on the worker's part. After careful review, I am satisfied that it does exist. I note the following to support my view:

• The worker's memory problems are not believable as noted by the LMR service provider, the English language trainers and operating area the case managers in their observations and conversations with him.
• The issues with drinking and the loss of his driving licence are documented by the worker's own family and his psychologist in several documents on file.
• The family reporting of a suicide threat by the worker; his subsequent denial of such intent and then a refusal to talk about it or even acknowledge the event with others.
• The video surveillance evidence from 2007 confirming abilities much greater than reported to health care practitioners and others at the time.
• Claims made for travel expenses over and above actual kilometres involved, duplicate travel claims made when taxi use was pre-authorized and meal expense irregularities.
• The refusal to take any responsibility for the lack of any progress in his psychological treatment or poor progress in his LMR plan - it is always others or the system who have failed to help him.
• The medical and LMR professional have either been able to speak with the worker in Punjabi or have used a Punjabi interpreter at nearly all of the crucial review points with him – the professed lack of understanding is totally illogical and truly not believable.
• Many of the discussions with the operating area case managers, LMR service provider, the operating area nurse case manager and others noting he has a good understanding English and a good ability to converse in English.

Noting the above, I am not convinced that any professed attitude change on the worker's part is authentic. As such, the closure of LMR services is confirmed as appropriate and the re-instatement of such services is not appropriate at this time.

PSYCHIATRIC TREATMENT, LOE BENEFITS & FURTHER HANDLING

The operating area has decided not to approve the continuing psychological treatment provided by the second Punjabi-speaking psychiatrist as of January 2010. It has concluded that the lack of progress after more than three years of treatment does not justify the continuation.

The worker's representative asserts that the worker has only received treatment from this current health care practitioner from May 2009 to December 2009 and it is too early to say that he will not derive any benefit. The employer's representative supports the operating area decision made.

I note there is one clear theme throughout all of the reports from the psychological and psychiatric health care practitioners who have assessed or treated him. The worker appears to derive no improvement from the treatment provided. Even at the hearing, he testified that that this is so. In fact, he testified that his condition has actually worsened since October 2009.

I note the argument put forth by the worker's representative that the treatment provided by second Punjabi-speaking psychiatrist is not billed to the workplace injury system but to the provincial medical system. That is not the point. The need and usefulness of the treatment provided by this individual is the actual issue at stake.

I conclude that the psychiatric or psychological treatment provided to the worker is clearly not having any positive effect for his conditions. The worker has reached maximal medical rehabilitation and the operating area will arrange for a NEL assessment of his accident-related psychological conditions. The approval of the accident-related medications will continue as per policy.

Noting that the worker has not derived benefit from either his medical or LMR plans, the reduction of LOE benefits from October 15, 2009 is confirmed as appropriate. The operating area will review his situation, once the results of the NEL assessment directed above are known.

CONCLUSION

I conclude that:

1. The 4% permanent impairment rating for the worker's left hand is appropriate and it is confirmed as correct.

2. The evidence does not support a relationship between the worker's high blood pressure and any of the treatment provided for the injuries resulting from his workplace accident.

3. The worker has not co-operated in his LMR plan, the closure of LMR services is confirmed as appropriate and the re-instatement of such services is not appropriate at this time.

4. The psychiatric or psychological treatment provided to the worker is clearly not having any positive effect for his conditions.

5. The worker has reached maximal medical rehabilitation and the operating area will arrange for a NEL assessment of his accident-related psychological conditions.

6. The approval of the accident-related medications will continue as per policy.

7. The reduction of LOE benefits from October 15, 2009 is confirmed as appropriate.

8. The operating area will review his situation, once the results of the NEL assessment directed above are known.

The worker's objection is denied.

DATED July 23, 2010

L. J. Vaccarello Appeals Resolution Officer Appeals Branch