WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100003
OBJECTION BY: Worker
EMPLOYER: Not participating
REPRESENTATIVES: Worker
HEARING DATE: January 7, 2010
ATTENDEES: Worker, Worker Representative
ISSUES
The worker is objecting to the Case Manager’s letters dated January 28, 2009 and August 19, 2009, which denied entitlement to chronic pain disability (CPD), post traumatic stress disorder, and/or psychotraumatic disability. The denial to these areas of entitlement resulted in a confirmation of the worker’s suitable employment or business (SEB) as being appropriate and denied the payment of full loss of earnings (LOE) benefits from November 14, 2008, as it was determined the worker was not competitively unemployable.
HOW THE ISSUES ARISE
On June 23, 2003, the worker twisted her low back while pushing a large slicer machine. This action resulted in a lumbar strain with sacroiliac involvement.
In April 2005, the worker was granted a 23% Non-Economic Loss (NEL) award for the permanent impairment which remained in her low back. In addition, as the employer was unable to provide accommodated employment for the worker, she was provided with Labour Market Re-entry (LMR) services to assist her in finding suitable permanent employment.
A LMR program based on the SEB of “general office clerk” was considered to be appropriate for the worker in March 2006. Her program involved a period of academic upgrading and English as a Second Language (ESL) training. The worker was subsequently enrolled in an introductory computer program and then commenced a formal 34 week Office Administration program.
By January 2008, the worker’s psychologist indicated the worker was unable to work; however, the operating area did not accept this position and indicated the worker had to continue with her LMR program, including work placement. The expected completion date of the Office Administration Program was approximately November 14, 2008, with a job search program to commence upon completion. However, just prior to the job search portion of the program, the worker advised the Case Manager she was withdrawing from the program claiming she was totally disabled from an organic and a non-organic perspective.
The operating area did not accept psychotraumatic entitlement and closed the worker’s LOE benefits from November 14, 2008 on the grounds the worker’s pre-accident earnings would have been restored had she completed the final portion of the LMR program.
In June 2009, the worker’s organic low back NEL award was increased to 32%; however, it was still determined the worker was capable of performing modified work as an office clerk.
The worker has objected to these determinations.
AUTHORITY
As per the Workplace Safety and Insurance Board (WSIB) Operational Policy Manual (OPM)
19-03-05 LMR Plans
18-03-02 Payment of LOE Benefits
11-01-05 Determining Maximum Medical Recovery (MMR)
15-04-02 Psychotraumatic Disability
15-04-03 Chronic Pain Disability
ASSESSMENT OF THE EVIDENCE
The worker testified that she had experienced no psychological difficulties prior to her accident in 2003. Within a year after its occurrence she noticed she was beginning to feel depressed because she was not getting better. She had feelings of wanting to be left alone and was becoming less social with her friends. With the development of these feelings she was referred to a psychiatrist who prescribed medication to assist her in coping. She found the medications did help in some aspects of coping with the pain, but the feeling of despair over not getting physically better remained. These feelings would become more pronounced during her LMR program and would eventually require further medical treatment by 2008.
With regards to the medical treatment obtained by the worker since her accident for her low back condition, it was noted in the first NEL assessment that the worker had central low back pain with radiation down the entire right leg. It was also noted the worker did repeatedly mention to her treating practitioners and assessors that there was considerable pain present. However, it was considered this pain behaviour and her physical findings were not organic in nature; witness the neurosurgeon’s comments in March 2004. The doctor noted there were no surgical options available for the worker since no organic findings could be found to explain the worker’s pain complaints.
However, in 2008, an MRI was performed which indicated deterioration had occurred from the previous 2003 MRI. In 2008, there was evidence of multilevel degenerative disc disease (DDD) and facet joint osteoarthritis (OA). There was also evidence of a right neuroforamen mildly narrowed at L5/S1 with the disc abutting the exiting nerve, but there were no obvious signs of compression.
In memo 117 of the claim record file, the worker’s medical reports were reviewed by the WSIB Medical Consultant, who commented,
“We therefore have a patient describing increasing pain and dysfunction subjectively which is well documented by her psychiatrist. Based on information historically that the patient has presented to the psychiatrist, he has offered the opinion that she is unemployable.
The subjective history given by the patient is not consistent with the objective physical (findings) on the chart including the recent MRI. I see no evidence of total disability on this file.”
However, it was subsequently determined in memo 124 of the claim file record that the recently supplied range of motion (ROM) physical findings did indicate deterioration had occurred with regards to the organic low back condition. This resulted in the need for a NEL re-assessment. However, the deterioration was not considered to be sufficient to warrant a change in the worker’s precautions with regards to attending the LMR program or finding work upon its completion.
The worker testified that by November 2008 she could no longer withstand the pain and her depression had sufficiently increased. She indicated her personality had changed and this was noticeable to other family members. She no longer had a desire to perform household duties and would often withdraw to her bedroom. She indicated she could still drive, but left many of the chores for her husband. She classified the depression as the major factor in her inability to complete the LMR program, as she had been able to cope with the physical pain previously, but in combination with the depression, she could no longer actively participate in a job search.
The psychologist provided detailed medical reports dated from late 2008 which indicated the worker had deteriorated in his opinion. The following comments were provided from the reports:
“I believe that I’m demonstrating my forwarding copies of previous consultations the fact that the worker has become increasing symptomatic with a progressive increase of the intensity and distribution of her pain syndrome…
Moreover, I already at the very time of the first interview diagnosed on the basis of her complaints and of the impact of Events Scale which measures the severity of Posttraumatic Stress Pathology that this form of psycho trauma had been present for quite some time and was demonstrated at the time of my first evaluation…
The chronic severe pain further documented by evidence of progressive severe spinal pathology is now to a point where unfortunately the worker cannot continue to work. She cannot sit for any length of time and when she tries the severity of pain cripples her for days…
She has symptoms of Posttraumatic Stress Disorder warranting a full diagnosis of Posttraumatic Stress Disorder under Axis 1 as well as Major Depressive Episode chronic and severe with no psychotic symptoms…She is unable to tolerate even minor conversations and just last night she became upset and agitated for reasons that she cannot fully understand herself…
On the PTSD Scale she shows evidence of reminders, flashbacks both visual and as intrusive memories, attempts to avoid situations and thoughts that may remind her of the accident, insomnia and nightmares with an exaggerated startle reflex.”
As per memo 134 of the claim record file, a Clinical Psychologist from the University Health Network reviewed the medical documentation and commented,
“From the information reviewed, there is no evidence to support a diagnosis of post-traumatic stress disorder given the nature of the accident detailed as it does not fit within the DSM-IV definition of trauma. With regard to depression, there may be some evidence with its persistent diagnosis and moderate GAF score, although it appears to be primarily in the context of a pain disorder and related issues.”
After reviewing this opinion, the Case Manager upheld her previous decisions and referred the issues to the Appeals Branch for consideration.
The worker testified she presently considers herself unemployable. She was informed she was denied Canada Pension Plan disability benefits because of the gap between her last work date (2003) and the psychological condition deteriorating approximately five years later.
The worker’s representative noted the following:
There were medical reports documenting psychological difficulties from 2003 which would meet the 5-year guideline found within the WSIB policy on psychotraumatic disability.
She agreed there is a significant organic component; thus, chronic pain disability would not be appropriate. In addition, the psychiatrist did indicate that post-traumatic stress disorder may not meet the WSIB guidelines for allowance; however, his documentation would support allowance as a psychotraumatic disability.
The WSIB Medical Consultant considered the depression was related to the work accident, see memo 134 within the claim record file.
The worker’s increase in her organic low back disability in 2008 would correspond with the increased psychological difficulties she experienced.
The worker should be considered competitively unemployable due to the combination of her impairments.
ANALYSIS:
I am in agreement that the grounds for chronic pain disability and post-traumatic stress disorder as outlined in the appropriate WSIB policies have not been met and any consideration for the worker’s psychological difficulties should be reviewed under the WSIB policy on psychotraumatic disability.
The general premise regarding psychotraumatic disability can be found in Operational Policy Manual (OPM) Document 15-04-02, “Psychotraumatic Disability,” which states:
“If it is evident that a diagnosis of a psychotraumatic disability is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability became manifest within 5 years of the injury, or within 5 years of the last surgical procedure.”
Psychotraumatic disability is considered a temporary condition. Only in exceptional circumstances is this type of disability accepted as a permanent condition.
Entitlement for 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, such as an emotional reaction to the accident or injury, severe physical disability 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.
Upon reviewing the entire claim record file, I consider there is sufficient evidence to support the allowance of psychotraumatic disability with regards to the 2003 work accident. I base this conclusion on the following:
There is evidence the worker had emotionally difficulties within the first year of the accident.
Although there was some improvement over the next several years, there is evidence to support an increase in psychological difficulties in coping with the pain when a confirmed deterioration in the organic impairment was recognized by 2008.
The increased psychological difficulties can be related to the extended period of the disablement and the increased symptoms recognized by the deterioration.
I accept the opinion of the Clinical Psychologist who reviewed the claim that the depression was related to the pain disorder. Noting a 32% NEL award has been granted, there is causal relationship between the pain associated with this degree of award and the depression which increased.
Noting the allowance regarding the psychotraumatic disability and the length of time it has persisted, the worker is entitled to a permanent impairment assessment for this condition.
However, the granting of this award does not automatically grant the payment of full LOE benefits. It is necessary to review the present condition with regards to the worker’s ability to perform any type of employment.
Although the worker has maintained total impairment, I accept the opinion of the WSIB Medical Consultant that the physical impairment to the low back does not negate the possibility of the worker being able to work. It is obvious the worker has no intention of ever returning to the workforce, but it must be demonstrated that she is totally incapable of performing any type of employment solely due to her actual impairments and not due to her perception of her impairments. Although the physical impairment is not considered to be totally disabling, there is a psychological component which has been allowed that must now be taken into consideration.
I note the Clinical Psychologist indicated a moderate GAF score which does not preclude employment, but does limit the worker’s abilities. In combination with the physical limitations, I conclude the worker is not capable of performing full-time employment; however, she would be capable of light part-time employment. In addition, any form of part-time employment would only be at the minimum wage level. This would especially be the case noting her age and limited transferrable skills. Any employment would be in an elemental type of profession.
Thus, from November 14, 2008, the worker is entitled to a partial LOE benefit rate based on 4 hours of work per day (20 hours per week) at minimum wage.
CONCLUSION
I conclude the following:
There is no entitlement for CPD or post-traumatic stress disorder
There is entitlement for a psychotraumatic disability. The worker is entitled to a NEL assessment for this condition.
The worker is not competitively unemployable; however, she is only capable of part-time minimum wage employment. Her partial LOE benefit rate from November 14, 2008 should be based on twenty hours of work per week at minimum wage.
The worker’s objection is allowed in part.
DATED January 21, 2010
N. Norvack
Appeals Resolution Officer
Appeals Branch