WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20110011
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative, Employer, Employer’s representative
HEARING DATE: January 18, 2011
ISSUES
The closure of Loss of Earnings benefits effective January 8, 2010.
The denial of additional treatment specifically, a psychiatric referral and a pain management program.
The denial of left shoulder entitlement.
Chronic Pain Disability.
HOW THE ISSUES AROSE
This worker who is employed as an instructor at a community college sustained a head injury on March 25, 2009. On that day while moving chairs from a classroom she was struck by a falling room partition. There was no loss of consciousness. An ambulance was called and she was transported to the hospital where she was assessed and released.
The worker returned to work for two days but experienced head pain and trouble concentrating. She left work and commenced treatment with the family doctor. Symptoms persisted and at the request of the family doctor a referral was made to the Toronto Rehabilitation Institute (TRI). Assessments occurred during the summer of 2009 with a final discharge report being issued October 22, 2009. The Neuropsychologist concluded following psychometric testing that the worker exhibited positives for a diagnosis of probable malingering. The full battery of tests was discontinued at that time as the credibility of the same could not be verified due to the diagnosis of probable malingering. The TRI discharge report identified a possible mild concussion, post traumatic tension type headaches and probable malingering. It recommended a return to work gradually at 2 hours a day increasing sequentially over a month to full time hours and duties, there being no restrictions to a return to full capacity.
The worker under protest submitted to the RTW plan but progressed slowly. Partial LOE benefits were paid from October 22, 2009 to January 8, 2010 when it was concluded the worker should be able to resume full duty. Decision letters were issued January 17, 2010 from the case manager and nurse case manager. These decisions rule that the worker was fit for full duty and given the diagnosis of probable malinger that there was no further entitlement under this claim. In addition, the nurse case manger denied the request for a psychiatric referral and pain management program. A subsequent letter denied left shoulder entitlement which the worker claims was injured at the time of the accident or arose secondarily from the return to work activities.
The worker seeks recognition that her ongoing symptoms are related to her closed head injury of March 25, 2009 and takes issue with the characterization that she is a “probable malinger”.
Essentially, the worker claims she has ongoing symptoms following a closed head injury. The Operating area of the WSIB has taken the position that her accident related condition has now resolved and any ongoing symptoms are not related to the work accident of March 25, 2009. These are the issues in dispute.
AUTHORITY
Operational Policy
11-01-01 Adjudicative Process
15-05-01 Resulting from the work related disability
15-03-03 Chronic Pain Disability
ASSESSMENT OF THE EVIDENCE
Testimony
The worker testified at the hearing. She described the accident history consistent with the file record.
She explained that her symptoms were at their worst around May 2009 when she saw Dr. Granapathy, a neurologist and continued pretty much the same during her assessments at the Toronto Rehabilitation Institute over the summer of 2009. On her return to work in the fall of 2009 some of her symptoms subsided such as the tinnitus and facial twitch. She continues however to have persistent headaches and believes she is still impaired with short term memory and a degree of cognitive processing. She is approaching her old self and feels she is back about 50% now and but is unsure if the recovery will progress further. She seeks additional treatment options and feels she has not received the treatment required, requested or directed.
She remains restricted in her daily activities particularly in her recreational life and has not been able to return to her previously active life style. She is no longer an active golfer but admits to golfing approximately 4 times in the last year. Her proficiency has been affected. She has given up curling and no longer gardens. Prior to the accident she golfed several times a week during the summer and curled also several times a week in the winter.
The symptoms remaining most predominately are headaches which she describes as having 80% of the time. She described three separate types of headaches a normal headache or pounding which she has most often , a sharp pain in the back of her head less frequently and a very severe headache where she sees spots in front of her eyes. She remains intolerant to bright light, noise and startles easily. She denies losing any significant time from work for any of the above symptoms as she has started a new job and does not want to miss time from it. She explained that over the last Christmas holidays she weaned herself off her headache and blood pressure medicine and found that her headaches increased. She is now back on the medicine which she described as Verapmail. This is prescribed for both her high blood pressure and headaches. In addition she takes Maxaslt for the severe migraine type head ache along with Tylenol #3.
The worker noted that she returned to work at reduced hours in October 2009. Originally it was structured by the WSIB to progress quickly over the course of a month to full hours. The employer altered the plan due to slow progress to a more gradual progression. She was paid WSIB partial LOE benefits to reflect her reduced hours to January 8, 2010. She however did not get back to full hours at that point and continued working reduced hours until early April 2010. The employer’s insurance carrier for a time paid her the difference of her actual hours worked and her full salary. She had hoped to be able to utilize her sick credits to top up her salary but was told she could not. She noted that she has grieved the decision not to allow her use her sick credits.
At around the same time she got back to full hours and was to resume her former job she received a layoff notice due to organizational restructuring. She was “ bumped" from the position and eventually had to find a new position located in London identified as a resource and information officer. This job involves providing employment and vocational counselling to students. Under questioning from the employer’s representative she advised she did not feel the layoff and reassignment had been done in accordance with the collective agreement. She does not feel her seniority rights were properly interpreted and speculated that perhaps her work injury had a role. In any event this issue as well is currently grieved through the union and she is awaiting an arbitration date.
It was noted that the TRI recommended a psychiatrist referral. The WSIB subsequently denied the referral however the worker was asked if the family doctor had made the referral in the interim. The worker advised that he had not as they have been waiting the outcome of the WSIB appeal. She acknowledged that she remains willing to attend psychiatrists if it is felt to be useful and or beneficial. She seeks treatment options so she can continue to recover to her former self and to lessen her headaches.
In the hearing she outlined her activities of daily living. She now has a longer commute to work. She finds herself fatigued at the end of the day and crashes when she gets home. She is limited in her outside interests and has reduced socializing. She is able to maintain some of the household duties but her now retired husband helps out. She maintains an ability to clean cook do the wash and shop with the help of her husband. Her weekends are spent recovering from the week and preparing for Monday. She tries to look after the grandchildren but has limited tolerance, the activity level and associated noise bothers her.
Specific to the shoulder condition she confirms it was injured at the time of the accident. It had resolved for the most part by the summer of 2009 as documented by the physiotherapy report at TRI. However when she returned to work in the fall of 2009 her shoulder condition flared which she attribute in part to the amount of computer work – perhaps in an inappropriate ergonomic stet up- and she attended physiotherapy for the shoulder. Her physiotherapist is of the opinion that the shoulder problem was a continuation of her initial injury in March 2009. She attended physiotherapy for 8 weeks and the shoulder condition largely resolved however she maintains a home exercise program, and feels she has reduced strength and a reduced range of motion.
Submissions
The worker’s representative noted that the medical documentation is unequivocal concerning the lack of a prior problems or a history of mental health problems. The discharge reporting is also clear in that the workers’ symptoms had not fully resolved and notes with interest the Global Assessment of Functioning (GAF record of Dr. Lee at 45). This is a low degree of functioning from his perspective and one that is unlikely to result in a successful return to work without further treatment.
In his view the diagnosis of probable malingering is not consistent with the entirety of the medical reporting but acknowledges the lack of specific organic findings. In his view the worker meets the criteria for Chronic Pain disability entitlement. He further acknowledges that it may be difficult to retroactively fix the past wrongs or direct treatment that was ordered some time ago. However the RTW plan should be supported along with the physiotherapy program for the left shoulder. There is no basis for the closure of benefits in January 2009 as there was no evidence to suggest the symptomology had resolved.
The employer representative supported the past decisions. He questioned the remedy sought noting the worker has now returned to work and there does not appear to be an ongoing wage loss and any out of pocket expenses have been covered from other sources. He was intrigued why the worker and her treating practitioner have not pursued additional psychiatric intervention noting this was recommended two years ago by the TRI. He questioned the need to direct such treatment in the absence of a more contemporary request for the same.
Analysis
Having regard for the file documentation, the testimony and submissions I have noted that the worker continued on a early and safe return to work program beyond January 2009 and eventually returned to her regular work at full time hours. It appears that she has since that time secured alternate work that is similar to the pre accident work but at a reduced salary scale. There is no evidence that this reclassification is in any way related to the work injuries although the worker feels the work injury may have had some influence. I make no finding on this other than to say that the evidence currently on file supports that the change in jobs was due to organizational restructuring independent of any workplace injury.
Malingering
The diagnosis of probable malingering has caused the worker some distress. She and her treating doctor along with the worker’s representative feels the diagnosis is out of place when the entirety of the medical reporting is viewed in context. I am in agreement that only one of the assessing doctors at TRI suggested a diagnosis of probable malingering. However, Dr. Lee’s report also appears to be somewhat skewed as well in that this doctor is the only one to suggest a GAF of 45, which appears to be out of keeping with the level of functioning the worker displayed in the return to work program. Dr. Carter who did make the probable malingering diagnosis in her report was careful to provide qualifiers in that other possible diagnoses needed to be ruled out to make the diagnosis valid. The other differential diagnoses included adjustment disorder with depressed/ anxious mood and major depressive episode. It has not however been established that the worker’s symptom exaggeration is volitional or conscious for the purposes of secondary gain. It is clear from a careful reading of medical reporting that symptom exaggeration has been a consistent presentation. Most if not all of the symptoms presented are felt to have a non organic cause. Dr. Granapathy who is the first specialist to see the worker after her accident on May 14, 2009 described multiple symptoms but could not detect any objective neurological deficits. Dr. Granopathy made the following comment:
Such post traumatic headache takes time to subside and difficult to manage.
The neurological report from Dr. Wherrett from TRI dated July 20, 2009 indicates the worker was well focused on her symptoms. Dr Somerville in the intake report of July 13 2009 indicates the patient endorsed 75 symptoms from the brain injury resource centre document that she completed prior to the assessment. Dr Carter also found her to be extremely symptom focused. To my mind there is a difference in being extremely symptom focused and being a malingerer. I would accept based on a review of the entire medical record and having the opportunity to hear the worker’s testimony that she exaggerates her symptomology. I am unable to conclude however – without additional knowledge concerning the methodology surrounding the malingering protocols discussed by Dr. Carter – that symptom magnification equates to malingering, especially in the absence of evidence that the symptom magnification is volitional in nature.
Return to Work Activity
Notwithstanding the diagnosis of probable malingering, it is important to note that the TRI discharge report did not conclude the worker had fully recovered. The discharge summary report did suggest there would be no barriers for a return to her regular duties. Additional recovery was anticipated. A rather short transitional return to work plan was recommended with a gradual return to regular duties in approximately a month. In reality the worker did return to modified duties but had difficulty progressing to full duties. She did so by early April 2010. The treating doctor and the employer worked diligently apparently with the help of the employer’s insurance carrier to progress the worker to full duties. There is no suggestion that the worker was off work or unable to progress more quickly for reasons other than the symptoms flowing from her head injury. I again note Dr. Granapthy’s earlier comment that post traumatic head pain required time to subside and were difficult to manage. In the main I agree. I further agree that the worker’s return to work activity and her need for reduced hours due to her post traumatic head pain should be supported. I direct the payment of partial loss of earnings benefits from January 8 2009 until the return to fulltime hours in early April 2010.
Left shoulder
There is a debate concerning the compensability of the left shoulder. In my view the medical reporting on file immediately after the accident confirm that there was shoulder involvement. The worker testified that the shoulder complaints settled by the summer of 2009. She concurs with the physiotherapists assessment at TRI that the shoulder condition has resolved. The worker however notes on her return to work that she noted a flare in her right shoulder symptoms which she attributed in part to her modified duties which included data entry. She was referred to physiotherapy and through treatment the shoulder condition resolved. She has no symptomology at present but is of the view that she has reduced range of motion and decreased strength in the shoulder. There is no independent medical reporting to substantiate any ongoing organic deficits.
The employer representative raised concerns that the issue of whether the modified duties caused a shoulder injury has not been previously adjudicated by the operating area. The worker representative confirmed this was not the basis that they were seeking entitlement. In light of the confirmed injury to the right shoulder and the lack of any documented intervening event as well as noting the relatively short period between when the worker’s symptoms settled a down and then subsequently flared once back to work I am satisfied that the flare up of shoulder symptoms can be rightly classified as a recurrence of disability from the March 25, 2009 work accident. Further shoulder treatment including physiotherapy in late 2009/ early 2010 is in order. At this point there is no evidence of any ongoing symptoms meriting a permanent impairment review.
Chronic Pain Disability
At my request the issue of chronic pain disability was added to the issue agenda. This was outlined in letter dated November 10, 2010, both parties agreed to adding the issue of chronic pain disability.
For chronic pain disability to be granted policy requires that five separate criteria be satisfied. The first is evidence that a work injury occurred. The second criteria is that chronic pain is caused by the injury. The third is that recovery has became prolonged. The fourth is a requirement that the pain exceed the organic findings and finally the fifth criteria that the pain results in an impaired earnings capacity usually manifested in a marked life disruption. All five criteria must be present for entitlement to be extended. Failure to establish one of the five criteria results in the failure of the application.
In this specific case we do have evidence of a work injury on March 25, 2009. The pain in the absence of a prior history appears to come from the work accident./ injures. It is unclear if the recovery has been prolonged in part due to the lack of medical reporting beyond February 2010 and in light of Dr. Granapthy’s comment that post traumatic head pain takes time to resolve. There are few organic findings in this case. I have noted virtually ever diagnostic radiological test has been described as normal including multiple MRI’s. Most if not all of the treating doctors have commented on the lack of organic findings. In this workers case, I note she has returned to work. She is working full time hours. She is in a different job at a rate lower than her pre accident job but at present I am unable to relate the job change to the work accident. The worker describes significant changes in her recreational and social life which could suggest a marked life disruption but in the absence of a documented impairment in earnings capacity I am unable to conclude the fifth criteria is met. On the balance, there is a failure to meet category two, an extended healing time and category five, impaired earnings capacity. For reasons that are discussed below I also have doubts concerning the third category, the pain stems from the work accident. Chronic pain disability cannot be extended in this case as all of the five criteria necessary to do so have not been met.
Further Treatment
The worker on her objection form requested that the WSIB support further treatment in the form of a psychiatric referral and or a pain management clinic referral. In the hearing it was acknowledged that despite it being more than a year since the TRI suggested a further psychiatric referral the family doctor has not acted on this recommendation. I note the family doctor’s letter of December 16, 2009 to the WSIB that specifically asked if the WSIB would support a referral to a psychiatrist and or fund psychotherapy sessions and or a pain management program. There was no specific response to the doctor other than the nurse case managers letter to the worker dated March 22, 2010 that stated “ I am unable to support payment for any additional health care including medications psychiatry, psychology or pain management.” The reason given was the presence of a pre existing condition. In the hearing the worker indicated she would be willing to attend a psychiatrist or a pain management program. She was looking for treatment options to lessen her ongoing headaches but had no specific thoughts on what treatment should be pursued. She felt that the family doctor was waiting the outcome of this hearing before deciding whether to proceed with a psychiatric referral.
I did find it curious that a psychiatric referral would be delayed pending the outcome of this appeal. There would be no barrier to the family doctor completing a referral independent of any decision of the WSIB. Funding for psychotherapy could likely be found through the employee’s employee assistance program, if deemed necessary, at least for the short term. With the complete lack of up to date reporting from the family doctor I find I am being asked to comment on the efficacy of a psychiatric referral from over a year ago. I have no difficulty with the TRI recommendation that the worker seek a further psychiatric referral. This recommendation could be supported even in the face of the diagnosis of probable malingerer. Indeed it was the TRI that made the diagnosis of probable malinger but this did not prevent them from also recommending a psychiatric referral. This was in the face of exaggerated symptoms along with a possible diagnosis of major depression. It would have been in context appropriate for the referral to take place in early 2009. I am unable to comment on the efficacy of such a treatment plan now noting a fully functional return to work and a complete lack of up to date medical reporting.
With respect to the pain management program in light of the denial of chronic pain disability it is my view that funding a pain management program would be inappropriate.
Residual Symptomolgy
The worker as stated above has been in the past extremely focused on her symptoms. I found the same in the hearing. However, it is clear that most of the more troubling symptoms have now resolved. She no longer has the facial twitch. Her tinnitus or ringing in the ears resolved. She no longer has the dizziness. She complained in the hearing of subjective decreases in her cognitive abilities. There is no objective neurological finding that supports any decreased cognitive functioning. She complains of short term memory loss and explains situational examples of not being able to remember people’s names or misplacing an item in the house. Based on my own experience these minor lapses in memory do not seem to me to be out of keeping with any individual in their fifth decade. The most significant remaining symptoms is recurring headaches. She described three separate headaches. I had difficulty in obtaining from her the exact frequency of each of the headaches other than the normal “pounding” type headache is the most prevalent, the sharp pain at the back of the head the second and most rare was the type that had an electrical component to it with a visual disturbance. She is on a daily medication which she describes as being for both high blood pressure and headaches. She described that when she self weaned herself off the medication over Christmas her headaches increased. The drug named Verapmail would appear to be primarily used of controlling high blood pressure. It may very well be that the presence of at least some of her headaches are related to either the presence of high blood pressure or a reaction to the medication used to control it. There does not appear to be a prior history of headaches. TRI described the headaches to be tension like. The migraine type headache did not have the classical symptoms according to TRI. Notwithstanding the presence of ongoing headaches, of uncertain etiology, I note that they have not been the cause of a functional disability. The worker has been able to maintain full employment despite the presence of headaches. She indicates it is because she has started a new job and does not want to jeopardize her employment. She works in a unionized environment and is adept at accessing the grievance procedure for perceived wrongs. I am not of the view her employment is in jeopardy. The fact that she has not lost time due to headaches suggest by definition the headaches are not particularly disabling. Hopefully they will continue to diminish over time as anticipated by Dr. Granopathy.
CONCLUSION
Partial Loss of Earnings benefits are extended beyond January 8, 2010 until the actual return to full time hours.
While the additional treatment recommended in late 2009 may have been appropriate at the time, in the absence of more recent medical confirming the continued need I confirm the denial of additional treatment, specifically a psychiatric referral and a pain management program is confirmed.
Left shoulder entitlement is granted. Any costs associated with the treatment should be borne by the WSIB.
Chronic Pain Disability is denied.
There is at this time based on the medical information presented no accessible residual impairment related to the work accident of March 25, 2009.
The objection is granted in part.
DATED February 4, 2011
R. P. Horne
Appeals Resolution Officer
Appeals Branch