WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100006
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
ISSUES
This worker has claimed entitlement to chronic pain disability (CPD) which has been denied in the adjudicator’s decision of June 2, 2009.
The worker has claimed entitlement to psychotraumatic disability benefits which have been denied as outlined in the adjudicator’s decision of June 2, 2009.
HOW THE ISSUES AROSE
This worker was employed as a machine operator with the accident employer. On November 17, 1989, the worker was picking up approximately 28 pounds of scrap plastic to put on a scale and experienced pain in her low back.
The worker was seen at The Canada Back Institute March 1, 1990. The diagnosis was low back pain with no nerve root irritation, although the worker did describe some symptoms compatible with sciatica.
A medical report from June 16, 1994 indicated that the worker’s problem at the time was pain in her back and right leg. It was thought the worker had been left with some mild residual pain in the low back with some referred pain down the right leg as a result of the work-related injury.
The worker was assessed for a permanent disability award August 9, 1995. The major complaint at that time was low back pain which increased with activity and bending. This report indicated the worker was on medication for depression and was taking two Prozac tablets per day. The report specifically stated the worker had been treated for depression for the past six months, but otherwise had never been seriously ill and had not had any surgery. The diagnosis was chronic low back pain. In this case, the chronic pain had a physical basis and was referred to as chronic as it had been ongoing. The worker was granted a 10 per cent award recognizing the residual physical impairment.
The worker underwent a permanent disability award reassessment February 4, 2008. It was thought that there had been some deterioration in the worker’s physical functioning capacity and there was evidence of right sciatica. As such, the award was increased to 20 per cent.
The worker has subsequently requested entitlement for either chronic pain disability (CPD) or psychotraumatic disability. This was reviewed by a Workplace Safety and Insurance Board (WSIB) medical advisor in Memorandum 134. It was determined the worker did not medically meet the criteria for a CPD award as the worker’s pain symptoms were in keeping with the 20 per cent permanent disability award for the physical condition. It was also accepted that the worker did not meet the WSIB criteria for psychotraumatic disability.
AUTHORITY
Operational Policy Manual Document:
15-04-03 – Chronic Pain Disability
Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of post-traumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the WSIB's policy on that organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder, or undetected organic sources), the pain will be considered for compensation purposes under the CPD policy.
15-04-02 – Psychotraumatic Disability
RESOLUTION METHOD AND PROCESS
The worker’s representative provided a written submission January 21, 2010.
ASSESSMENT OF THE EVIDENCE
Issue 1
Entitlement to CPD is adjudicated according to specific criteria established by the WSIB. It is important to recognize the difference between a person’s perception of pain symptomatology which is subjective and presented as constant or chronic and “CPD syndrome”. In many cases, “chronic pain” is a term used to describe ongoing and persistent pain which has a physical explanation. In these circumstances, the worker normally does not meet the criteria for CPD.
In order to meet the criteria for CPD, the Workplace Safety and Insurance Board (WSIB) has five categories that must all be included in the worker’s circumstances. The criteria are as follows:
A work-related injury occurred.
Chronic pain is caused by the injury
The pain persists 6 or more months beyond the usual healing time of the injury.
The degree of pain is inconsistent with organic findings.
The chronic pain impairs earning capacity.
In this case, medical documentation substantiates that this worker’s pain symptomatology is consistent with the nature of the injury and the progression of the symptomatology as we have seen with the increased permanent disability award. As such, the worker’s pain symptoms are consistent with the injury and for this reason, the worker does not meet the WSIB criteria for CPD benefits.
Issue 2
In the worker representative’s submission dated January 21, 2010, reference is made to a report dated July 27, 2006 which indicated the worker had received treatment for her psychiatric condition since August 8, 1997. Her actual psychiatric history went back 15 years, thereby suggesting the worker had suffered psychiatric problems as early as 1991. This would suggest that a psychiatric condition manifested within five years of the injury.
The representative argued that although the worker did not start actual treatment until 1997, this does not mean the worker could not have been suffering from a psychiatric problem years before she was formally diagnosed. It is the position of the worker’s representative that this worker has a psychotraumatic disability which arose from the injury.
The WSIB has a very specific policy directive for psychotraumatic disability entitlement. Essentially, the WSIB looks for a severe traumatic accident from a psychological or a physical standpoint. The WSIB also looks at whether or not a worker has undergone significant and invasive treatment which could result in a psychological response, thereby causing a psychological impairment as an indirect result of the physical injury due to the emotional reaction to the injury. The WSIB also looks at cases where a severe disability results in a reaction to the treatment process and if this causes a psychotraumatic disability.
It is not however, the intent of the policy to identify a separate area of entitlement in cases of anxiety and depression subsequent to an accident since the policy was not created to compensate for a person’s generalized reaction to pain and the result of the pain symptoms. Anxiety and depression related to a worker’s reaction to an injury and the injury process is a subjective characteristic which is not recognized as a basis for entitlement under the Psychotraumatic Disability Policy.
In this particular case, the worker did not have a traumatic accident. Initially, the worker suffered a strain injury as a result of a heavy lifting incident. At the time of the first permanent disability award assessment in August 1995, it was noted that the worker had been suffering from depression and had received medication for depression. The depression appeared to be related to the affects of the injury and how this affected the worker’s functioning capacity and lifestyle; however, this on its own is not a sufficient basis for actually placing the worker in a category of entitlement to psychotraumatic disability benefits.
A report from a psychiatrist dated July 27, 2006 indicated that the worker had been under the care of a psychiatrist since August 8, 1997 and that the symptoms went back 15 years, where the worker suffered from depression, social withdrawal and loss of interest in every day activities as well as feeling tired. She had episodes of anxiety and according to this report, had made suicide attempts. The diagnosis was a depressive disorder and psychotherapy was recommended.
A medical report from another psychiatrist, Dr. Sharma, from 2007, indicated the worker had been diagnosed with depression for several years and had been treated since 1997.
A report indicated the worker became depressed in 1989 after having sustained a work-related injury. However, at that time, the worker changed her house and was extremely worried about finances. She had become overwhelmed and there was a history of overdosing on two occasions; the last one being in 1990.
Other medical difficulties the worker suffers from were also listed in this report. It was thought the worker had major depression and some of the other medical conditions were recognized. These could of course contribute to the development of depression and impaired coping skills