WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100196
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker
HEARING DATE: August 25, 2010
ATTENDEES: Worker, Worker Representative, Observer
ISSUES
The worker requests:
Recognition that she has developed an accident-related psychotraumatic disability;
A permanent impairment has resulted and a non-economic loss (NEL) assessment of this non-organic condition is required.1
HOW THE ISSUES AROSE
This claim recognizes a repetitive strain workplace accident involving the worker's left upper extremity with an onset date of February 12, 2001. The attending health care practitioners diagnosed left shoulder strain, tendonitis and impingement syndrome. A MRI scan identified a partial tear of the supraspinatus tendon, tendonopathy of the supraspinatus and infraspinatus tendons and fluid in the subacromial bursa. The attending orthopaedic specialist considered surgical treatment in August 2001 but he wanted the worker to try physiotherapy treatment and workplace accommodations first.
The employer attempted to provide appropriately accommodated work duties for the worker as of June 3, 2002. It experienced some difficulties doing so and the worker also expressed concerns about the appropriateness of the work duties provided. This led the operating area to carry out workplace mediations and ergonomic assessments of the work duties.
The operating area arranged for the worker to attend a non-economic loss (NEL) assessment of her left upper extremity on March 17, 2003 and it determined an 8% permanent impairment rating on May 29, 2003. The worker also developed right upper extremity conditions while performing these accommodated work duties and the operating area also recognized these as accident-related. The worker attended a further NEL assessment on December 10, 2004 and received a combined 19% permanent impairment rating for her upper extremity conditions on February 17, 2005.
The employer eventually could no longer provide accommodated work duties and placed the worker on permanent layoff as of April 10, 2006. The operating area arranged for the worker to attend a labour market re-entry (LMR) assessment in October 2006 and approved an English language training and educational upgrading program from November 27, 2006 to
October 3, 2008. The LMR plan called for her to then complete training for the suitable employment or business (SEB) of pharmacy assistant by October 30, 2009.
The worker also developed psychological problems and she began attending a psychiatrist for assessment and treatment in September or October 2008. The psychiatrist provided a report dated March 27, 2009 outlining the worker's status. She diagnosed a pain disorder and major depression; she recommended the worker take time away from the LMR plan and referred her to a physiatrist for assessment. The physiatrist recommended a trial of acupuncture and massage treatment which the operating area approved.
The operating area also reviewed the psychiatrist’s report; it noted the diagnosis provided and the suggestion for a three week vacation from the LMR plan. The operating area concluded that the worker's pain disorder and major depression were not accident-related and the vacation time would be approved as long as it did not interfere with the LMR plan completion. The case manager advised the worker and her representative of this decision on August 25, 2009.
The worker commenced a job placement with a pharmacy as a pharmacy assistant as of September 6, 2009 and expressed concerns about her ability to undertake full time employment in this capacity. The operating area advised her on November 25, 2009 that her accident-related impairments did not preclude a return to full time work duties as a pharmacy assistant.
However, it has continued to process partial LOE benefits from February 10, 2010 because of reduced hours of work provided by the new employer. The worker's representative objected to the decisions made on an accident-related CPD or psychotraumatic disability and the ability to work full time hours. He submitted an objection form and the operating area referred these matters to the Appeals Branch on December 10, 2009.
AUTHORITY
Operational Policy Manual documents:
11-01-05 Determining Maximum Medical Recovery (MMR)
15-04-02 Psychotraumatic Disability
15-04-03 Chronic Pain Disability
18-03-06 Final LOE Benefit Review
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
22-01-02 Material Change in Circumstances - Worker
ASSESSMENT OF THE EVIDENCE
The worker provided testimony at the hearing about:
Not having any psychological problems of a personal requiring treatment before her workplace accident of October 16, 2001.
Witnessing the death of a co-worker in a workplace accident; experiencing anxiety and low mood after this event and receiving counselling through the employer on a short term basis for these problems.
The limitations associated with her upper extremity conditions causing conflict between her and her spouse and eventually led to him abandoning her and their two children.
How he has not provided any support since he left them and this has led to some financial difficulties.
Developing problems with anxiety and depression after it became clear she would not recover fully from her left upper extremity injury and even developed secondary right upper extremity problems.
Her family doctor identifying these issues; prescribing appropriate medications and arranging for her to see a psychiatrist for assessment and treatment, which is still ongoing.
Attending the programs associated with her LMR plan; persevering with her studies in spite of her pain and psychological upset; successfully completing the plan and locating employment in her SEB of pharmacy technician.
The treatment provided by the psychiatrist helping her to better cope with anxiety and depression, allowing her to co-operate in her ESRTW and LMR.
Being less social and more irritable with her children as a result of these psychological issues.
Requiring the help of co-workers and her children in her work and home activities and feeling diminished compared to the person she was pre-accident.
Not feeling overly hopeful about her future and knowing she must persevere for herself and her children in spite of this.
Continuing to work part time hours in her new employment and using medications for pain and depression to be able to do so.
The worker's representative notes that the worker and some of her co-workers saw a fatality occur in the workplace and they experienced post-traumatic psychological problems. However, these problems for the worker were of a short duration and subsided. She injured her left upper extremity in 2001 and was not able to recover to her pre-accident capabilities in the workplace and at home. Her spouse did not deal with these changes very well and left the worker and his children without any financial support.
All of these factors have played a factor in the worker developing anxiety and depression. However, it is the accident-related impairments and their effect on her functioning in the workplace and at home that have contributed the most to the development of these conditions. The operating area’s belief that the worker would have developed the anxiety and depression regardless of the workplace accident is not supported by the evidence as a whole. The worker's psychological conditions merit recognition as being accident-related. Furthermore, it is in the best interests of all to approve the associated health care that allows the worker to remain in the workplace.
The operating area has taken the view that the worker's anxiety and depression relate solely to the stressors associated with achieving the academic requirements of the LMR programs. It noted that she did not develop these conditions until she commenced the LMR plan. In reaching these conclusions, the operating area ruled out the accident-related onset of the worker's left and then right upper extremity conditions as a significant contributor.
The worker came under the care of her psychiatrist on March 27, 2009 and provided a diagnosis of major depressive disorder, first episode, without psychotic features. The psychiatrist notes that she traces the onset of her mood disturbance to the severe, residual upper extremity pain, concerns over her financial future and lack of sleep. This health care practitioner also verifies no prior history of psychiatric illness and treatment. According to the worker, she continues under her care and the treatment provided helps to keep her emotionally stable.
As to the onset of the worker's psychological problems, the vocational/psychological assessment in October 2006 and reassessment in December 2007 record her feeling depressed (less so at the second assessment as she was feeling positive about her progress in LMR). She states that she also saw another psychiatrist before her current one but found that individual not very empathetic and did not return to see him. So, it is clear that the worker was experiencing depressed mood before March 27, 2009.
The worker has co-operated in all facets of her medical, ESRTW and LMR programs. She has adapted to her reduced physical capabilities and striven to remain a productive employee with the accident employer and her current employer. Even though she has ultimately persevered, it is not unreasonable to link her anxiety and depression to the lifestyle changes caused by her upper extremity injuries.
The worker's has developed an accident-related psychotraumatic disability. The operating area will request further update reports from the attending psychiatrist and determine if the worker has reached MMR and whether a permanent impairment has resulted. The operating area will arrange for a NEL assessment at the appropriate time.
CONCLUSION
I conclude that:
The worker's has developed an accident-related psychotraumatic disability.
The operating area will request further update reports from the attending psychiatrist and determine if the worker has reached MMR and whether a permanent impairment has resulted.
The operating area will arrange for a NEL assessment at the appropriate time.
The worker's objection is allowed.
DATED September 13, 2010
L. J. Vaccarello
Appeals Resolution Officer
Appeals Branch