WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100136
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUE
The worker objects to the denial of psychotraumatic disability entitlement as explained in the adjudicator’s letter dated April 27, 2009.
HOW THE ISSUE ARISES
The worker was employed as a dishwasher/prep cook and began his employment on October 15, 1997. On June 8, 1998, at 20 years of age, he was moving cases of beer when he slipped on the floor and fell sustaining injuries to his low back and left shoulder. The initial diagnosis was left sciatica and a contusion of the left shoulder. The claim was initially accepted and loss of earnings (LOE) benefits were paid until June 25, 1998 when the worker then returned to work. Treatment was conservative and a complete recovery was anticipated.
The worker then experienced a flare up of his back pain after returning to light work. He laid off work again on August 9, 1998 and LOE benefits were restored. An x‑ray report of the lumbar spine in August 1998 was unremarkable.
The worker was referred to a specialist in November 1998 who arranged for a CT Scan and a myelogram which showed slight posterolateral disc herniation at the L4‑L5 level on the left side. An MRI of May 2000 confirmed mild degenerative changes at the L4‑L5 level without evidence of impingement. The ongoing diagnosis identified at the time was mechanical low back pain on the basis of mild degenerative spinal changes, obesity and de-conditioning. In addition, psychological overlay was noted.
Permanent functional precautions against repeated bending and twisting, lifting over 10 pounds and prolonged positions were identified. Since the worker’s pre-injury duties exceeded his precautions, and the employer was unable to accommodate the restrictions, Labour Market Re-Entry (LMR) services were initiated in August 1999. These services were then closed shortly after due to a lack of cooperation on the part of the worker.
A second attempt at LMR services was then made with a suitable employment or business (SEB) identified having regard for the worker’s physical and vocational characteristics. Formal retraining was not considered an option with the worker then completing a four week job search techniques course, with the worker’s benefits then being adjusted in October 2000 to reflect his earnings capacity in the identified SEB that matched his escalated pre‑injury earnings profile.
The worker went on to receive a 15 per cent NEL award for the low back permanent impairment as confirmed in the NEL Adjudicator’s letter dated October 18, 2001. The referral diagnosis was mechanical low back pain. The NEL clinical specialist’s letter of April 24, 2002 then increased the award to 16 per cent.
The NEL clinical specialist’s letter dated June 7, 2004 confirmed an adjustment to the NEL award with an increase by 13 per cent for a total NEL award for the low back permanent impairment at 29 per cent.
There is also information on file confirming the worker obtained employment in August 2002 as a night maintenance worker. On September 10, 2002 he reported slipping on a wet floor and falling which resulted in injuries to his left knee and foot. Entitlement in the new claim was accepted for a temporary aggravation of his chronic low back impairment. Entitlement to LOE benefits beyond November 2002 was denied by an Appeals Resolution Officer’s (ARO) decision of February 20, 2004.
A subsequent claim was then established representing a back injury in or around September 18 to 23, 2002 as a result of moving tables and chairs. Entitlement was denied on the basis that proof of accident could not be established. The decision was upheld by the ARO decision of February 20, 2004. That decision did grant a non-economic loss (NEL) re-determination under this claim (xxxx3797) with a permanent worsening date of November 26, 2002. The results of this reassessment are noted above.
The worker had requested a further NEL re-determination in June 2005. It was concluded the worker’s low back condition had not significantly deteriorated from the 29 per cent NEL level and as such, a NEL re-determination was denied. Having regard for the applicable policy that was in effect at the time of the decision, the Adjudicator also reviewed the worker’s entitlement to LOE benefits subsequent to the NEL re-determination review and concluded the worker was not entitled to LOE benefits beyond the 72 month lock in date (June 8, 2004). In addition, it was confirmed that the previously identified precautions remained the same and the previous SEB remained suitable.
These issues were referred to the Appeals Branch and as confirmed in the Appeals Resolution Officer’s decision of September 18, 2007, it was concluded that the worker remain fit for suitable work subsequent to his deterioration on November 26, 2002 and his functional precautions remained the same. Ongoing LOE were denied as a result of the increase in his NEL award. In addition, it was confirmed that there was no evidence of significant deterioration from the 29 per cent NEL level already awarded to the worker on June 7, 2004.
As confirmed in her correspondence of July 22, 2008, the worker representative, on behalf of the worker requested consideration be given for entitlement under the WSIB’s psychotraumatic disability policy. A copy of a medical report from Dr. J. G. Mullin was submitted in support of this claim. Numerous other outstanding medical reports were secured for review of this issue.
In November 2008, the WSIB medical consultant reviewed the documentation on record pertaining to the psychotraumatic disability issue. The medical consultant suggested that the psychiatric condition could be related to the compensable injury and that the depression, et cetera, could also be part of the compensable injury. Ongoing psychiatric treatment was recommended.
The issue was again reviewed by the adjudicator in January 2009 who acknowledged the medical consultant’s review. It was the opinion of the Adjudicator that it was premature to have the file reviewed by the medical consultant without having all of the medical documentation on record pertaining to the psychiatric issue.
The issue was again reviewed in April 2009 by the Adjudicator who concluded there was insufficient evidence to establish that the current psychotraumatic condition was related to the workplace injury under this claim. Psychotraumatic disability entitlement was therefore denied as a result. This was confirmed in the Adjudicator’s letter of April 27, 2009.
The worker representative, on behalf of the worker objected to this decision and the matter was referred to the Appeals Branch for review.
AUTHORITY
Operational Policy Document:
15-04-02 – Psychotraumatic Disability.
RESOLUTION METHOD AND PROCESS
The worker representative requested to proceed by way of written submission as a means of resolution in this appeal. Her correspondence of November 6, 2009 provided her final submissions regarding the issue under objection.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and have considered the evidence and submissions.
As explained in her correspondence November 6, 2009, it is the view of the worker representative that the Adjudicator’s decision of April 2009 ignored the findings of all of the medical practitioners who have treated the worker. She explained that all of the practitioners relate the worker’s psychotraumatic disability to factors (chronic pain, financial burden, limitations in functioning including inability to work, sleep, participate in social and recreational activities, et cetera) that are associated with the worker’s extended disablement and to non‑medical socioeconomic factors that can be directly and clearly related to the work-related accident.
She also suggests the Adjudicator mistakenly indicated in his decision letter that the first mention of psychological difficulties was as a result of a non-compensable incident with a diagnosis of post‑traumatic stress disorder (PTSD) secondary to a home invasion. She notes this was incorrect and that the home invasion actually took place in April 2003.
She also notes the first mention of psychological difficulties was indicated by Dr. Johnson in his report of October 2, 2000. She also explained Dr. Khazzam referred to psychological difficulties resulting from the compensable injury in both 2001 and 2002. She explains Dr. Khazzam initially referred the worker to Dr. Braithwaite for the psychological difficulties he was experiencing and continues to experience, as a result of his compensable condition and its sequelae. She notes the home invasion only temporarily aggravated the already significant psychological problems that were associated to the workplace injury. Numerous other references were made to medical reports on the case record that reference the worker’s emotional difficulties including Dr. Mullin’s report of July 7, 2008. She also notes the occupational therapist’s reporting of April 24, 2006 that referenced the worker’s emotional concerns.
Operational Policy # 15-04-02 states; in part; that entitlement for a psychotraumatic disability may be established when the following circumstances exist or develop
- Organic brain syndrome secondary to;
- traumatic head injury
- toxic chemicals including gases
- hypoxic conditions, or
- conditions related to decompression sickness.
- As an indirect result of a physical injury;
- emotional reaction to the accident or injury
- severe physical disability/impairment, or
- reaction to the treatment process.
- The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.
Psychotraumatic entitlement can be considered when a worker suffers an emotional disability arising from a traumatic accident or a severe disability. Often psychotraumatic reactions are temporary, and resolve with time and/or treatment. Where there is a psychotraumatic diagnosis which became manifest within five years of the accident or last surgical procedure, and it is clearly attributable to the workplace injury, entitlement can be considered.
A review of the medical record confirms that Dr. Khazzam first mentioned in a progress report dated July 21, 1999, that the worker was showing poor response to physiotherapy and that he was discouraged. Again the progress report of October 17, 1999, under the heading Improvement expected, stated; “unknown, very frustrating problem”. The worker’s progress report of May 5, 2000 stated “very sore and frustrated”.
Dr. Johnson’s report of October 2, 2000 noted his concern was the severity of the symptoms described by the worker which he felt were not in keeping with the expected mechanical back pain related to the known degenerative changes. He arranged a bone scan and blood work to rule out other potential causes. He said the pain being described was severe enough and limiting enough to his lifestyle that the worker expressed severe depression and that he mentioned “life is not worth living”. He was concerned that a part of his problem could be psychological overlay and depression. (Psychological overlay is a term generally used by clinicians to indicate an exaggeration of, and/or magnification with respect to the residual physical impairment). He felt a psychological assessment was indicated. His report of
July 1, 2002 suggested no indication to consider surgery and that his treatment should consist of management of any depressive symptoms and supervision of a weight loss program. His report of November 11, 2000 confirmed the diagnosis of mechanical back pain on the basis of mild degenerative changes in his back and aggravated by obesity and deconditioning. No further investigations were deemed necessary. He noted it was imperative, the worker come to grips with his problem.
Dr. McKee’s report of July 17, 2003 noted the worker said he suffered from depression since October or November 2002 and was being treated by Dr. Braithwaite, psychiatrist, prescribed Celexa.
The chart notes of Dr. Khazzam commencing from May 22, 2002 make, in part, the following notations;
May 22, 2002 – feels depressed and stopped the Paxil a few weeks ago after he found that it was not helping. c/o recurrent visions of being attacked. A:, PTSD.
July 31, 2002 – Still on probation for fraud. This is until the fall. MD received letter from Correctional Services and will be notified soon re: PMH of back pain…Still wants to be treated for his depression. Was threatened in Cornwall. Pt. agrees that he needs antidep. again. Copied pages in CCAC and counseling directory for him to be able to talk to someone.
October 1, 2002 – discussed psychiatry consult with pt. agrees to go.
November 6, 2002 – Patient is discouraged about his back pain recurrence. Started a few weeks after recent fall. Causing him chronic pain symptoms again and he is getting irritable with people.
November 12, 2002 – pt more upset and aggressive with lack of sleep and chronic pain.
November 26, 2002 – psychogenic component
November 29, 2002 – Pt very anxious and angry again about his injury. He seems to have low pain tolerance, low frustration tolerance, poor comprehension. Not sleeping well. Forgets things.
December 10, 2002 – Frustrated, agitated, with pain. Hx. of dependence on narcotics and BZD, recently weaned from both. Frustrated that unable to work. Unable to sleep. Angry today. Impression – chronic back pain, Hx. Of subst dependence.
December 18, 002. – Pt only wants to be on antidep. And not interested in painkillers anymore.
January 2, 2003 – Pt anxious frustrated, upset. Still using the Celexa and Amit. Depression about the same. Upset about physical problems.
March 6, 2003 – Grandfather and stepfather dies within the past two weeks. Pt. became aggressive at work when asked for time off. He was then given two weeks off work. c/o insomnia, anxiety.
March 19, 2003 – Still has anxiety
April 1, 2003 – Still using Antidep. – Feeling frustrated but able to sleep.
April 22, 2003 – Back worse, frustrated, upset…still feels low
May 22, 2003 – Pt. frustrated and depressed, upset. Claims to not be able to tolerate his pain anymore.
May 29, 2003 – Pt. seeing ROH psychiatry and we are waiting for Dr. Braithwaite to return call.
July 23, 2003 – Pt. frustrated, has flashbacks of breakin, not as depressed but occ despondent about his situation in life.
August 5, 2003 – remains frustrated with pain shooting down his knees. Psychiatrist will send report.
September 16, 2003 – Braithwaite walked out on patient.
The April 24, 2006 report from the Occupational Therapist makes reference to the worker feeling depressed about his health and that he had a 2 year problem with anxiety after he experienced a home invasion. Reference is made to a past suicide attempt and overdose of medications. She noted ongoing follow up with his GP and psychiatrist. She noted medication was increased to help him cope with his pain, the loss of his health, his job, and most other activities he used to be able to do.
Dr. Mullin’s report of July 7, 2008 explained the worker was referred to him by the West End Legal Services for a psychiatric assessment. He said he assessed the worker on July 7, 2008 for a consultation appointment and reviewed the clinical notes from the family physician from May 2002 to September 2003, consultation reports of Dr. McKee from July to November 2003 as well as his letter dated January 13, 2006, and the assessment report of the Occupational Therapist, C. Munro of April 24, 2006. Dr. Mullin’s report of July 7, 2008 makes no mention of the reporting of Dr. Braithwaite. There is no mention of the criminal charges that initiated the referral to Dr. Braithwaite in June 2001 or the trauma experienced by the worker due to the home invasion in March 2003. I therefore hold little weight on the reporting of Dr. Mullin as the referral was initiated by the worker representative and not felt necessary by his attending clinicians. As well, it would appear that Dr. Mullin was not provided with the entire case medical records of the worker when he provided details of his assessment and recommendations.
Turning to Dr. Braithwaite’s report of June 8, 2006; he explained the worker had initially been referred to him by Dr. Khazzam (primary treating physician) in June 2001 for an assessment because of criminal charges. He said the family physician reported that he had become depressed as a result of chronic low back pain which led to an addiction to narcotics prescribed to manage the problem. Exercise and weight loss was prescribed.
He was then again referred to Dr. Braithwaite by Dr. Khazzam in May 2003 because of difficulties with re-experiencing the trauma of a home invasion that had taken place in March 2003. He reported on his sleep disturbance, including nightmares that he related to the home invasion. He also said the worker reported never having been assessed by a psychiatrist but was prescribed anti-depressants from Dr. Khazzam. He also said he had taken an overdose of Tylenol after being charged with fraud, the result of writing bad cheques to stores.
Dr. Braithwaite diagnosed him with post traumatic stress disorder with a second diagnosis of obesity.
He continued to treat the worker and discussed the need for weight loss including his reluctance to prescribe certain drugs for this. The worker then rejected further appointments including a sleep lab referral and he continued treatment with Dr. Khazzam. In October 2003, he then agreed to the sleep assessment plan. He said it was evident the worker continued to experience difficulty with recurrent nightmares and symptoms consistent with post traumatic stress disorder. He said he became agitated with poor frustration tolerance with attempts to resolve his claim with the Criminal Injuries Compensation Board as he found that any discussion with them caused reemergence of his symptoms.
By March 2004, Dr. Braithwaite reported the worker was complaining of being rude and abusive in an aggressive manner saying things he would not normally say, and sometimes waking up in a sweat and crying with no memory of his behavior. He was prescribed medication for bedtime to suppress the nightmares. He said the frequency of the nightmares decreased when his hearings with the Criminal Injuries Compensation Board were over. When assessed on
June 8 (2006) he said the worker reported doing very well.
I also note a letter on file dated June 28, 2006 from Dr. Braithwaite and addressed to Dr. Khazzam. Dr. Braithwaite acknowledged receipt of a letter sent to Dr. Khazzam by the West End Legal Services. He suggested Dr. Khazzam ask the lawyer to write to him directly outlining their concerns and he would address them. He said Dr. Khazzam indicated his previous responses did not answer the questions and said he was never approached for a WSIB claim. He said his responses were to the Criminal Injuries Compensation Board relevant to the worker’s claim for post traumatic stress secondary to a home invasion.
When the Board’s medical consultant opined on the worker’s emotional issues in November 2008, the case manager made reference to the reporting of Dr. Mullin, the reporting of Cheryl Munro, the family physician and Dr. McKee and asked for an opinion on the worker’s claim for psychotraumatic disability entitlement. It is clear that the medical consultant was unaware of the reporting of Dr. Braithwaite noting his treatment recommendations and, his lack of acknowledgement of his reporting. The worker had already been under active treatment with
Dr. Braithwaite as far back as June 2001. Had this been brought to his attention, it is my view that his comments and recommendations would have been entirely different with reference to this issue. In fact, the medical documents were filed in the “No Access” section of the claim file having regard for the fact these issues were considered to be “non-compensable”. This is likely why the case manager missed referencing or failed to acknowledge these documents when the file was referred to the Board’s medical consultant in November 2008. The documents were not located in the medical section of the claim file.
Having considered all of the evidence on record as outlined above and, as far as the specific requirements for entitlement under the psychotraumatic disability policy are concerned, I find the evidence on record fails to establish that the worker’s emotional difficulties and diagnosed post traumatic stress disorder to be related to the worker’s extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury. On the contrary, it is my view that the condition resulted from factors outside of the scope of this claim as explained in Dr. Braithwaite’s reporting. The record indicates the worker made a claim for benefits with the Criminal Injuries Compensation Board but there is no confirmation whether it was successfully settled on behalf of the worker. Regardless, it is my view the worker does not meet the specific requirements for acceptance of a psychotraumatic disability, as defined under operational Policy # 15-04-02 as explained above.
CONCLUSION
I conclude the worker is not entitled to psychotraumatic disability entitlement.
Dated: June 4, 2010
F. Bruno
Appeals Resolution Officer
Appeals Branch