WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100005
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker Representative
ISSUES
[1]. The worker objects to the denial of entitlement for psychotraumatic disability;
[2]. The worker objects to the denial of entitlement for Chronic Pain Disability (CPD);
[3]. The worker objects to the denial of entitlement to Loss of Earnings (LOE) benefits subsequent to January 17, 2006 as she is claiming first, the job with the employer was not suitable and second, she was unable to resume work.
HOW THE ISSUES ARISE
On May 15, 2000, the worker who was employed as a school teacher was hit in the face with a baseball. She was diagnosed with a nasal fracture. Entitlement was granted and benefits were paid in accordance with the medical evidence received. The worker had several surgeries and developed depression for which she commenced psychiatric treatment in early 2001. She did return to work in September, 2001 working half days. She had a recurrence between
February 15 to March 10, 2002 and she continued with treatment, including chiropractic treatment in an attempt to remain at work. By November, 2002, she remained on half days
and a referral to the Pain Clinic was made. She was however discharged on January 30, 2003 as it was not felt that they could help her and she continued with psychiatric treatment instead. The file was reviewed by a WSIB Medical Consultant on August 16, 2003 at which time it was determined that the psychiatric treatment was in order and that the worker was close to a
Non-Economic Loss (NEL) determination for her organic condition.
She resumed work in September 2003 again working half days. She laid off work again on September 22, 2003 citing physical and emotional difficulties. She resumed work again in October, 2003 but reported ongoing problems. The file was reviewed by a Psychological Consultant on November 6, 2003 at which time it was determined that further psychological treatment was appropriate and the worker was diagnosed with a major depressive disorder.
In the meantime, the employer continued to contact the WSIB offices to determine the worker’s level of impairment and her ability to resume work. Ongoing treatment for the worker was authorized and she had further surgeries in March, 2004. A return to work meeting was then arranged for June 7, 2004. The worker went on vacation in Italy in the summer of 2004 and resumed work at half time hours in September, 2004. She was off again on November 5, 2004 as a result of a sinus infection and poor pain control. Benefits were reinstated. Benefits continued to be paid until January 17, 2006 at which time it was determined the worker no longer had psychiatric entitlement and it was determined the job with the employer on a full-time basis was suitable. The file had also been reviewed to determine the worker’s entitlement to CPD, but this too was denied. The worker was advised of these decisions in a letter of
January 17, 2006.
In June, 2006, the worker was granted an 11% NEL award to recognize the permanent impairment related to the facial fracture with multiple surgeries.
The worker then had further surgeries for a sinus condition on October 17, 2007,
October 31, 2007 and December 5, 2007. Initially, the surgeries were not felt to be compatible with the initial injuries sustained in this case. Following a Medical Consultant review in
January, 2009 however, the surgeries were accepted as being related to the original
work-related accident and LOE benefits were paid from October 17, 2007 to February 29, 2008. A permanent impairment was also accepted for the post-traumatic sinusitis. A NEL award for this condition is currently pending. Further benefits remained denied as the previous decision regarding suitability of the work with the employer did not change.
The worker’s representative then requested that psychiatric entitlement be once again considered. Following a medical review of July, 2009 however, the decision to deny entitlement for psychotraumatic disability remained, as did the decision to close benefits. The worker objected to the adverse decisions made and her file was referred to the Appeals Branch for consideration.
AUTHORITY
15-04-02 – Psychotraumatic Disability
15-04-03 - CPD
18-03-02 – Payment of LOE Benefits
19-04-06 – Suitable Employment
11-01- 05 - Determining MMR
RESOLUTION METHOD & PROCESS
The worker representative agreed to a decision without a hearing based on the claim file documentation. The employer was not contacted as I did not receive a Participant Form from them.
ASSESSMENT OF THE EVIDENCE
I have considered all of the evidence pertaining to this case. I will deal with each issue individually below.
Entitlement for Psychotraumatic Disability
Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop:
Organic brain syndrome secondary to a traumatic head injury, toxic chemicals including gases, hypoxic conditions or conditions related to decompression sickness;
An indirect result of a physical injury being an emotional reaction to the accident or injury, severe physical disability/impairment or a reaction to the treatment process; or
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.
In this case, there was obviously not an organic brain injury and entitlement for psychotraumatic disability cannot be considered on this basis. There is also no real link between the worker’s psychological problems and the treatment process. However, in reviewing the claim file documentation, and in particular the medical information, I am satisfied that the worker’s psychiatric problems are in fact a result of the worker’s reaction to the extended disablement and to non-medical socioeconomic factors. The reasons are as follows:
The worker has no history of prior psychiatric problems;
The worker began to develop psychological problems shortly after the accident and was diagnosed with depression;
On August 16, 2001, the worker reported her ongoing anxiety. In a conversation with the Nurse Case Manager documented in Memo #38, the worker described a sense of loss/grief over the loss of her job, social relationships and her inability to participate in social events. She mentioned having feelings of distress and incompetence;
In a review of August 16, 2003, the Medical Consultant noted that psychiatric treatment was in order;
The worker made several attempts to return to work but felt unsupported and this led to further emotional problems in November, 2004 and to the reinstatement of benefits. The effects of the injury led to the need for modified work. The worker felt unsupported in her attempts to return to the modified work and her feelings of anxiety in this respect are considered ‘non-medical socioeconomic factors’ contributing to the worker’s psychological problems;
Dr. Bodenstein supports this finding in the report of October 17, 2003, wherein it is indicated the worker was frustrated in dealing with the employer. This led to increased pain and the emotional sequela was hindering her ability to function in her role as a teacher. On October 1, 2004, Dr. Bodenstein reported that the recent dealings with the employer had undone months of therapy. The worker would not have had to ‘deal’ with the employer if she had not been injured in the first place;
The Psychological Consultant reviewed the file on November 6, 2003 and noted that further psychiatric treatment was appropriate for the worker’s major depressive disorder;
Dr. Finkelstein reported on June 23, 2004 that the worker had chronic facial pain and her depression was a direct result of the workplace injury;
A further psychiatric review on August 4, 2004 documented in #130 also noted that the worker’s psychiatric problems were secondary to the worker’s facial injuries and further treatment was approved. A further review by the Psychological Consultant in Memo #149 seemed to suggest that the worker’s depression and chronic pain continued to be related to the accident injuries;
On April 21, 2005, Dr. MacKenzie reported that there was a strong correlation between the worker’s chronic pain (related to the initial injuries) and her depressive symptomatology;
Dr. Bodenstein continued to report a major depressive disorder, mild to moderate, in 2005, that was chronic;
Dr. Patmanidis reported on May 26, 2008 that the worker had chronic depressive symptoms superimposed on a chronic pain syndrome;
On May 28, 2008, Dr. Sweiczek also reported that the worker’s depressive symptoms were secondary to a work-related accident;
The Psychiatric Consultant reviewed the file on July 24, 2009 and did concede that there was some evidence for psychiatric entitlement in the context of the worker’s pain disorder. Entitlement was not accepted as it was his opinion that there were several pre-existing and co-existing factors that would predispose/contribute to/maintain the worker’s symptoms such as return to work conflict, claims conflict and financial issues, social isolation and family dependency. It appears these other co-existing conditions were determined to be non-compensable. However, a direct relationship can be made between these extended socio-economic factors to the initial injuries sustained in this claim. The worker’s work conflict, claims conflict, financial issues, social isolation and family dependency all came about as a result of the initial workplace accident. There is no other intervening incident which would account for her symptoms.
When considering all of the evidence in this case, the medical evidence is overwhelmingly in favour of supporting a relationship between the worker’s ongoing psychological impairment and the initial injuries sustained in this claim. I am therefore accepting entitlement for psychotraumatic disability. Given the fact that the worker continues to seek psychological counselling and continues with a depressive disorder, I also find that the condition has become permanent. The Wasser Clinic report of April 6, 2007 noted that the worker had learned to manage her pain and not be so hard on herself. It appears she reached a point of Maximum Medical Rehabilitation (MMR) at this point and a NEL determination is to be made using this as the MMR date.
Entitlement to CPD:
Entitlement in this case includes a permanent impairment for two separate organic conditions and for the worker’s ongoing psychological problems. Entitlement for CPD is considered when the worker’s pain complaints are not explained by organic causes and there is insufficient evidence to conclude that emotional problems are acceptable under the psychotraumatic disability policy. In this case, the worker’s organic injuries explain the worker’s ongoing pain complaints. Furthermore, although it is noted the worker has developed chronic pain, this does not necessarily entitle her to acceptance under the CPD guidelines. All the medical reports previously referred to diagnosed depressive disorder secondary to chronic pain, which developed as a result of the organic injuries. Entitlement in this case is better dealt with under the psychotraumatic disability policy rather than the CPD policy and as such, I am denying entitlement to CPD.
LOE Subsequent to January 17, 2006:
LOE benefits subsequent to January 17, 2006 were denied, other than the period paid from October 17, 2007 to February 29 2008 on the basis that the employer had suitable modified work available at no wage loss on a full-time basis. In accepting entitlement for psychotraumatic disability however, I am not satisfied that returning to work with the employer in January 2006 would have been a viable option.
The worker had attempted to return to work on several occasions. The employer did make attempts to accommodate the worker, such as providing her with a humidifier and a dry erase board so that the worker would not have to be exposed to chalk dust. However, there were failed attempts and misunderstandings that led to strained relations that in turn fed the psychological condition, which then led to increased physical symptoms. In September, 2002, the worker was assigned a mixed class in contradiction to the doctor’s advice. The worker attempted another return to work in September, 2003. She called the WSIB offices shortly after however, upset over the fact that although she had a dry erase board, the teacher she shared her class with did not and the chalk was bothering her. The employer did not see this as a problem as the chalk the other teacher was using was considered to be ‘dustless’. Even after the worker’s treating physician, Dr. Toran, supported the need for a dry erase board as even ‘dustless’ chalk aggravated the worker’s condition and a co-worker supported the worker’s claim that the dustless chalk aggravated her condition, there did not appear to be an understanding by the employer.
The worker contacted the WSIB offices on October 15, 2003 indicating that she felt misunderstood by the employer and she did not feel supported. Dr. Bodenstein also noted in a conversation with the Nurse Case Manager on November 5, 2003 that the worker had regressed physically since her return to work attempts. The employer did appear to be willing to provide dry erase boards in December, 2003 but when the worker returned to work in September, 2004, the problems with the employer continued. Dr. Bodenstein contacted the Nurse Case Manager on September 15, 2004, once again supporting the worker’s increased stress was caused by her strained relations with the employer.
Given the worker’s history with the employer and the negative impact dealing with the employer has had on the worker’s psychological and physical conditions, I am not satisfied that a return to work with the employer is a viable option in this case. I therefore cannot support the closure of benefits in January, 2006 on the basis that the employer had suitable modified work available at no wage loss on a full-time basis.
This finding therefore leads to the question of what benefits should be paid beyond
January, 2006? The worker maintains that she was unable to resume any type of work after this point but in reviewing the medical documentation, I am not in agreement with her position of being totally impaired. When the worker was assessed by Dr. MacKenzie on April 21, 2005, her GAF (Global Assessment of Functioning) score was 51-55 and this does not support a claim of total impairment. The worker’s GAF scores have been fairly consistent since that time and as late as June 17, 2008, Dr. MacKenzie reported GAF scores of 50-55. In this same report,
Dr. MacKenzie supported a gradual return to work. Dr. Finkelstein on August 22, 2008 indicated that the worker’s prognosis for return to work was poor, but this was based on the fact that she had not worked since 2004. This does not necessarily mean she was unable to do any type of work. Based on the medical reports therefore, I am not satisfied that the worker has remained totally incapacitated. Since she was not involved in any type of return to work efforts, I cannot at this time authorize the payment of full benefits. The best way to determine her level of benefits payable from January 17, 2006 to date and continuing therefore is to have a Labour Market Re-entry (LMR) assessment conducted. The results of the assessment are to be considered in combination with the results of the worker’s combined NEL awards so that the operating area can determine the level of benefits payable since January 17, 2006. It may be that the worker is considered to be competitively unemployable once all the assessments have been completed however this is not a determination I can make at this time and is left to the discretion of the operating area.
CONCLUSION
Based on the evidence outlined in this decision, I am:
Accepting entitlement for psychotraumatic disability on a permanent basis. The file is to be referred to the NEL department to determine an appropriate award for this condition. The MMR date to be used is April 6, 2007;
Confirming the denial of entitlement to CPD;
Accepting that a return to work with the employer is not suitable for this worker. The worker is therefore entitled to a further review of LOE benefits pending an LMR assessment and the results of her further NEL determinations. The operating area is then to determine the level of benefits payable since January 17, 2006 based on these findings.
The worker’s objection is granted in part.
DATED February 17, 2010
S. Marangoni
Appeals Resolution Officer
Appeals Branch