WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER RECONSIDERATION DECISION
DECISION NUMBER: 20110014
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: May 3, 2011
PARTICIPANTS: Worker, Worker Representative
ISSUE
The worker is requesting a reconsideration of the denial of loss of earnings (LOE) benefits from October 1, 2001 onwards as a result of the additional entitlement that was granted to the worker by an Appeals Resolution Officer (ARO) on May 31, 2007. The ARO granted entitlement to psychotraumatic disability and granted as well a permanent impairment for the worker’s organic low back condition, but in the same decision denied LOE benefit entitlement.
The additional entitlement resulted in the worker receiving a 48% non-economic loss (NEL) award; on this basis the representative requested a reconsideration of the decision to deny LOE benefits from 2001 onwards.
HOW THE ISSUE ARISES
The ARO, in her May 31, 2007 decision, provided a summary of the mechanics of the accident for the work-related injury of November 6, 2000, a summary of the medical reporting on file up to the date of the hearing, and a summary of the testimony of the worker regarding his physical and psychological condition, his communication with the employer about modified work and how he spent his days. None of that will be repeated here.
The ARO concluded the following:
- The worker is entitled to psychotraumatic disability,
- The worker is not granted entitlement to chronic pain disability,
- LOE benefits from October 1, 2001 onwards is denied,
- LMR assistance is pending until the worker determines if modified duties of a permanent nature are available within his restrictions, with the accident employer, and
- The worker is entitled to a NEL assessment for his low back, with a maximum medical recovery date of May 2, 2001.
Subsequent to the ARO decision, the operating area, in June, 2007, contacted the worker’s treating psychiatrist and asked for any available reports beyond December 2, 2003, including information about the worker’s fitness for work. Updated information was again requested in 2009.
The worker was eventually granted a 26% NEL award for the low back on May 7, 2008. On March 1, 2010, the worker was granted a 22% NEL award for psychotraumatic disability; using the combined values chart, the worker was granted a 48% NEL award to reflect both his organic and psychological impairment.
The worker argued that the significance of the NEL award called into question the ARO’s decision to deny LOE benefits beyond October 1, 2001. Because a final decision of the Workplace Safety and Insurance Board (WSIB) had been made, this issue could only be addressed by the original ARO. Since she was retired, it fell on me as her former Manager to act as an ARO in reconsidering this issue.
Whoever is charged with addressing a reconsideration in the Appeals Branch must review the request for reconsideration on the basis of the following criteria:
- Substantive defect in the decision or the decision-making process which may reasonably affect the outcome,
- Failure to properly apply the Act or approved WSIB policy,
- Significant new evidence, and
- A typographical error which impacts the decision.
In the circumstances of this case, as I advised the worker representative in a letter dated January 10, 2011, I accepted that the granting of a 48% NEL award for the organic and psychiatric entitlement granted to the worker by the ARO, constituted the meeting of the threshold criterion of significant new evidence. This resulted in the need for additional process in order to address the worker representative arguments on the issue of whether the significant new evidence is of sufficient strength and persuasiveness to reasonably affect the outcome of the decision. I determined it was necessary to receive some additional evidence regarding the worker’s circumstances between 2001 and 2007 and to hear as well what has been occurring with the worker since 2007. It was determined that an in-person hearing was the best method of resolution in this situation.
The employer was invited to participate in the reconsideration hearing but chose not to do so.
AUTHORITY
Operational Policies:
18-03-02 - “Payment of LOE Benefits” (prior to December 1, 2010) 18-03-03 - “Reviewing LOE Benefits (prior to Final Review)” (prior to December 1, 2010) 18-03-06 - “Final LOE Benefit Review” (prior to December 1, 2010) 18-05-09 - “Redeterminations and Recalculations”
Appeals System Practice & Procedures document Guidelines for Bill 179 and Bill 187
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
Worker Representative Submissions
The worker representative indicated that when this worker’s file was with the previous ARO, the worker was requesting entitlement to psychotraumatic disability or chronic pain disability (CPD), organic impairment, and LOE benefits beyond 2001. He noted the file was sent to the Senior Appeals Medical Consultant, who opined there was evidence of no recovery to pre-accident level based on a combination of organic and non-organic issues, and the medical consultant suggested the worker should be granted entitlement to CPD. The representative suggested that if CPD had been granted, the worker’s psychological and organic issues would have been combined and result in one permanent impairment award; however, since the ARO concluded on both an organic NEL award and permanent entitlement to psychotraumatic disability, the worker has been granted permanent entitlement to two different conditions, and the evaluator who assessed the worker’s psychological disability referenced a very significant impairment. He suggested the approach taken by the Senior Appeals Medical Consultant underestimated the worker’s significant impairment.
The representative argued the GAF score for the worker at the time of his NEL assessment was 55 and his scores from his treating psychiatrist had been 50, showing a deterioration in his condition. He noted the assessor opined the worker’s treatment since 2002 had been appropriate but opined as well that the worker was unlikely to improve. He reminded that the worker had cooperated in all recommended medical treatment except the injections that were recommended approximately one year ago.
He argued if the Senior Appeals Medical Consultant had been aware of all of this, his opinion might have been different.
The worker representative noted that the worker ought to have been evaluated for entitlement to LOE benefits back in 2001, with consideration either of modified work with the employer or entitlement to Labour Market Re-entry services; had this occurred it might not have been necessary to be dealing with this appeal today. However, given what actually occurred, it is the worker’s position that he has been totally disabled since 2001.
The representative argued that Dr. Kiraly has recognized a serious impairment that is refractory to medical treatment; the worker is suffering from major depression, has vegetative symptoms, and his activities of daily living are greatly restricted.
The representative suggested the worker’s ability to engage in the world has been greatly diminished and he is mostly homebound. The worker’s ventures outside are few and far between.
He noted as well that the worker’s organic condition is significant as well, as he is spastic with movement. He has suffered from a flexion deformity from February, 2001 to date and this makes it hard to walk.
The representative noted the worker has been taking medications for 10 years with minimal results; he attended a pain clinic without benefit.
The representative indicated the worker’s physician has recognized he is not a surgical candidate, has a significant amount of functional overlay, and has never had any success with physiotherapy and has no residual work capacity left.
He concluded his submissions by suggesting that the worker should not be financially penalized because of an injury that left him permanently unable to perform the work he loved.
File documentation
The May 31, 2007 ARO decision outlined the relevant medical information that was on the file at the time of the hearing and will not be repeated in detail here. However, it is important to note the worker was seen by his health care professionals to be partially disabled from an organic perspective by the fall of 2001. He began seeing his psychiatrist, Dr. Panjwani in February, 2002, and in an April 16, 2003 report the worker was described as totally disabled to perform any gainful employment at that time, with a guarded prognosis. This decision will reference the relevant file information that came to the file from May, 2007 onwards, but for a few items that were available to the ARO but were not specifically referenced by her.
Subsequent to the ARO decision in 2007, a March 4, 2005 report from psychiatrist Dr. Panjwani was provided. The report outlined the worker has remained totally disabled to perform any gainful employment and his long-term prognosis remains poor.
An April 1, 2007 memo from the Senior Appeals Medical Consultant provided the following opinion:
There is evidence that the worker is not recovered to his pre-accident level however the ongoing difficulties appear to be a combination of organic and non-organic issues. Therefore it appears that he has met the requirements for chronic pain disorder on a medical basis. I do believe however that the worker’s level of disability is partial since October 1 of 2001.
A September 17, 2007 report from Dr. Panjwani confirmed the earlier diagnoses and opined the worker has remained totally disabled to perform any gainful employment and that his long-term prognosis remains poor.
On May 7, 2008 the worker was granted a 26% NEL award for a low back strain following a microdiscectomy that occurred prior to the date of accident.
An April 9, 2009 memo from a case manager indicated it did not appear the worker did anything regarding the ARO’s direction to contact the employer to determine if modified duties were still available; it was noted that the worker’s position remained that he was unable to work since 2001.
A September 10, 2009 report from psychiatrist, Dr. Panjwani, noted he has provided psychiatric care to the worker since February 15, 2002. The psychiatrist noted the worker’s continuing depressive and anxiety symptoms, perpetuated by chronic pain. The worker reported feeling sad, has low energy and feels very tired; has lost interest in things and suffers from a fragmented and non-restorative sleep.
The report outlined the worker has trouble making decisions, has trouble concentrating, and experiences memory problems. The psychiatrist opined the worker:
.... has remained totally disabled to perform any gainful employment. His long-term prognosis remains poor due to the prolonged nature of his mental and physical disorders.
The medical reporting on file from the worker’s psychiatrist has shown he has continued to be prescribed psychiatric medications since he began seeing his psychiatrist on February 15, 2002.
A September 21, 2009 memo from a case manager outlined that the worker has remained totally disabled to perform any gainful employment and that his prognosis remains poor due to the prolonged nature of his mental and physical disorders; the case manager noted the ARO’s decision to deny LOE benefits despite granting psychiatric entitlement.
An October 2, 2009 memo from a WSIB medical consultant outlined the NEL diagnosis of major depression and suggested the worker had plateaued related to the psychological disability as of September 17, 2007. In essence, the permanent worsening date chosen for this worker related to the inclusion of his permanent psychological impairment was September 17, 2007.
A February 5, 2010 NEL assessment for the worker’s psychotraumatic disability, noted the following:
- the worker described his low back pain as radiating down his left leg, sharp like a knife, with numbness at the side of his left leg,
- the pain is constant, worsened by the weather, and has worsened over time,
- medication and rest help to some extent,
- he is taking a number of medications, including psychotropic medications,
- basic daily functions are difficult, with the worker’s family needing to assist with getting dressed and personal hygiene,
- his sleep is reduced, broken and non-restorative,
- he has poor concentration, attention and memory,
- he has withdrawn socially from family and friends,
- he is diagnosed with major depression, chronic, severe, and treatment resistant,
- he has a mixed chronic pain syndrome,
- treatment recommendations are for continued conservative management of his pain and depression,
- his prognosis is not good due to chronicity and lack of response to treatment over time, and
- he has a moderate impairment that is compatible with some but not all useful function.
Worker Testimony
The worker testified and provided the following information. He had back surgery prior to his work-related injury and believes it was in 1996. At the time of his injury in 2000, he was back at his regular work and was suffering very minimal problems. He had not missed any time from work after he recovered from surgery, until his work-related injury in 2000.
After his injury in 2000, he was unable to do anything due to his back pain, which went from his buttocks down his left leg; his pain still feels like a knife in his buttocks between the bone.
When asked about his current situation as compared to how he felt in 2001, the worker advised his pain is a little bit worse but has been constant; he has suffered every minute of every day since 2001.
He has some better days but is unsure why and suggested he mostly has very bad days.
The worker described what he might do on his best day. He would go for a walk in the hallway of his apartment building but he rarely goes outside as he does not want to go anywhere.
He noted he did try to return to work. He was asked to describe the concerns he had with the light jobs that were offered to him in 2001. He only worked for 3 hours. The lady he met on that day was not someone who was known to him; she was not very nice and told him to work at a large sink. She did advise him not to work too fast and to sit down when he needed to. He did work for 3 hours and found it difficult to bend over the sink to wash parts. He told the lady he was tired and had to stand up to do the work; he advised her he needed to lay down. She “gave him a look.” He was upset because he had loved his job and he was known in the field across Canada. He did very well for the company and they were very happy with him. After this attempt at a return to work he did keep in contact with his boss but they never discussed a return to work; he did advise his boss how he felt and that he was unable to work.
His wife and children support him financially and otherwise. His wife was off work for a “good while” but has been working for the last year..
He has received ODSP for the last year. He stated he was unaware of it before that, and is not a person that seeks help from others.
He began seeing his psychiatrist Dr. Panjwani in February, 2002 and has seen him since then. He went to see him after a suggestion by his family doctor. His family doctor had known his family for a long time and so he felt comfortable telling him his feelings. He was at that time experiencing a pounding heart, difficulty breathing, and sweaty palms. He was very afraid as he had never experienced anything like that before. He later realized this was an anxiety attack. He still has these attacks; they come on when he is thinking about things and realizes he has nothing to look forward to. They happen less now that his financial pressures have reduced due to ODSP. They still occur every few days; when they occur he takes his medication and the attack subsides within 30 minutes. He does not get fearful about them anymore because he knows what is happening.
The worker described the treatment he receives from his psychiatrist. He is prescribed medications and they talk for 30-45 minutes each session. These sessions allow “a bit of a stone” to fall off his shoulder but this relief only lasts a few days for him.
He has suffered from a flexion deformity since 2001; he can’t stand straight as he suffers from too much shooting pain.
He takes 6 different types of medications, including Oxycocet and Gabopentin for his pain. He takes the medications so often it is difficult to tell if they help. His wife often has to remind him to take his medication.
He has seen his psychiatrist Dr. Panjwani regularly since February, 2002. Even with that, there has been no improvement in how he feels.
He goes outside only to see his doctors and to go to a sitting area near his building when it is nice outside. He used to be very active in the outdoors. He has no friends left except for one person and that person does not visit him anymore. He does not go out with his family anymore.
He has a brother, nephew and nieces and has not seen them much in the last year; it is his fault as he is very hard to deal with.
The worker described a typical day for him. He gets up at no set time because he can only sleep for 30 to 60 minutes at a time. He is up late. He closes his eyes but he can’t let go and is always thinking of his situation and about his family. He should be the one coming home from work and looking after his family. He has 2 grandchildren and it is difficult knowing that he cannot lift them up. There is a small play area behind his building and all he can do is watch the children play.
He takes medication for sleeping and on a typical night he sleeps 1 to 1.5 hours and this has not changed since his injury. In the summer he goes to the mall for a walk with his family for 1-2 hours. This does not happen too often because his son lives in Toronto.
Before his injury he was a musician but had to stop after his injury because a person needs two hands to hold a guitar. He also had to give up camping and fishing and having fun with his friends.
He understands it is important to have something to do each day.
He completed Grade 8 in Hungary and then did mechanical work for 10 years with a company where he did a lot of different things.
He does not believe there is any work he can do as he is in constant pain, tires quickly, and needs to lie down. He cannot concentrate on anything at home so he wonders if he would be able to do so at work. He used to be good in math but now he has problems with numbers.
In terms of treatment his family doctor recommended injections a year ago but he is afraid of needles. His doctor has never mentioned it again.
The worker was reminded that the ARO in 2007 had advised him to contact the employer about a return to modified work. He advised he thought the issue was finished as he had been released by the company. He was surprised the company doctor attended the hearing in 2007. He lastly noted that closer to 2001 than 2007 there was a new owner of the company that did not have responsibility for him.
Analysis
As I outlined above, I have accepted that the entitlement determinations made subsequent to the 2007 ARO decision represent significant new evidence that could reasonably result in the altering of the decision made by the original ARO related to entitlement to LOE benefits from October 1, 2001 onwards. As such, I will be reviewing all of the evidence between 2001 and 2007 in the context of the 48% NEL award the worker has been granted for his organic and non-organic condition and beyond 2007 the combination of the NEL award and the additional medical reporting that was available to me.
The worker has requested full LOE benefit entitlement beyond October, 2001. Because the date of the 72 month mark after the injury is November, 2006, it is necessary to review and consider Bill 179 and Bill 187, which both established triggers for determining under what circumstances LOE benefits could be paid beyond the 72 month mark after a work-related injury has occurred. Based on the findings I will make below the factors necessary to trigger those two bills are not in evidence and so it is my determination that the provisions of those two bills do not apply in this case.
In the context of what is now known regarding the level of the worker’s permanent impairments for both his low back and psychiatric disability it is first necessary for me to make a determination regarding his level impairment. If I find the worker totally impaired since 2001, that will end the enquiry and full LOE benefits will be directed. However, if I find the worker partially impaired, it will still be necessary for me to consider additional factors beyond the worker’s level of impairment in determining whether he is employable and whether any level of LOE benefits should be paid. It is also important to note that in determining whether the worker is entitled to LOE benefits other factors beyond simply the level of impairment need to be considered.
In concluding that the worker was not entitled to LOE benefits despite the fact she had granted the worker entitlement to an organic low back permanent impairment and psychotraumatic disability, the ARO appeared to rely on one line of the opinion of the Senior Appeals Medical Consultant; this was his statement of his belief that the worker’s level of disability “is partial since October 1 of 2001”. This opinion is not one that I will rely on in my reconsideration in light of the significant level of impairment subsequently granted to the worker for both his low back and psychological impairment and the fact, as noted by the representative, that the medical consultant based his opinion in the context of entitlement to chronic pain disability (CPD), as opposed to entitlement to an organic disability in the low back and a pyschotraumatic disability. However, my decision not to rely on the Appeals medical consultant opinion is not determinative of the question of the worker’s level of impairment.
The worker’s low back condition resulted in an 26% NEL award. The finding that the worker was entitled to a NEL award for the low back was made by the ARO on May 31, 2007. The date of maximum medical recovery (MMR) for the low back was established as May 1, 2001.
I recognize this organic low back impairment is not minimal. However, it is important to note that beyond the date that was determined to be the MMR date for this impairment, the worker’s treating health care professionals had outlined restrictions for him and had accepted there was work that this worker could perform, with retraining.
In March, 2010, the worker was granted a 22% NEL award for psychotraumatic disability arising out of the ARO decision. The finding that the worker was entitled to psychiatric entitlement was made by the ARO on May 31, 2007. The maximum medical recovery date for this permanent impairment was chosen as September 17, 2007.
The worker’s 22% NEL award for psychotraumatic disability represents an impairment in the low range of the moderate category; his impairment levels are compatible with some but not all useful function. The policy addressing the assessment of impairments due to mental and behavioural disorders references the following factors when describing the low end of the moderate category of psychological impairment: increased dependence on family members, mild anxiety, excessive fear of re-injury, emotional withdrawal, depressive features, fatigue, and limitations in social and personal adjustment within the family.
While these factors do describe a worker with psychological difficulties, they do not, in my view, equate with a finding of total impairment.
I recognize that as of April, 2003, the medical reporting from the worker’s psychiatrist delineated the worker’s inability to return to any type of work. In this regard, I do note the worker has been receiving psychological treatment since February, 2002 but it does not appear the treatment has made any positive impact and it also does not appear that there was any change to the type of treatment provided given the lack of improvement.
The worker’s level of impairment was objectively determined by the NEL assessor to be at the low end of the moderate category and so my opinion remains that the low end of the moderate category of psychological disability for this worker does not equate with a finding of total impairment.
In 2007, the ARO made some additional comments in her decision that bear some observation. In addition to granting additional entitlement, she made the suggestion that the worker, “if he wishes”, should contact the employer to determine whether they continued to have modified duties; she also advised that labour market re-entry (LMR and now WT) would remain pending until after such contact is made. In my view, these statements leave open the possibility of additional services being provided to the worker, and LOE benefits would naturally flow from such a determination. There is then a memo from a CM in 2009 that notes the worker did not make such a contact; the worker confirmed this in his testimony.
In my opinion, it is not especially surprising that the worker did not make such contact with the employer as it had remained his position that he has been totally impaired and unable to perform any type of work since October, 2001. His recent testimony in the reconsideration hearing remained consistent with that view. However, the worker’s perception of his ability to return to work does not equate with a finding of total impairment.
There was little discussion in the 2007 ARO decision of the modified job that was offered the worker in 2001. He described his return to work for three hours and noted he was given a job where he had to bend over a sink to wash parts. His description does not accord with the two potential modified jobs described by the employer to the WSIB on September 17, 2001 (memo #41). Because the worker stopped working and failed to contact the employer other than to advise his boss that he could not work, it is difficult to make a reasonable determination 10 years later as to whether the employer would have continued to offer modified work and/or address any concerns with the modified work the worker might have had. I have indicated above that it was not surprising the worker did not make an attempt to contact the employer.
However, I do make note of the fact that even upon receiving the 2007 ARO decision, a decision which determined that he was not totally impaired, the worker failed to undertake the advice of the ARO to contact his employer to attempt to raise the potential for a return to work. There was no mitigation by the worker in relation to his loss of earnings.
I don’t disagree with the worker representative that the worker’s situation might have been different if the entitlement granted by the ARO in 2007 had been granted in 2001; reasonable consideration could have been given to either modified work with the employer or entitlement to Labour Market Re-entry (LMR) services. However, I find that his perspective on this question fails to recognize the responsibility of the worker to attempt to maintain his relationship with his employer and to make reasonable efforts to return to work within his restrictions with his employer.
The worker testified that he was well known within Canada for his skill set; he could potentially have found a job either with his own employer or with an alternate employer in a more cerebral job that took advantage of his knowledge. Instead, he allowed his perception of his pain to result in the entrenchment of his view that he was unable to perform any type of work.
It is not surprising that his psychological difficulties increased the further away he was from his working life. He was at that time 2.5 years out of the workforce and 1.5 years away from his 3 hour attempt to return to work and his last connection with his injury employer. It was only then that the worker’s psychiatrist concluded the worker was unable to return to work.
I find the balance of evidence supports the worker has remained partially impaired since October of 2001 pursuant to his low back and psychological permanent impairment.
Having stated the above with respect to the worker’s level of impairment, the quantum of the worker’s NEL award is not on its own indicative of employability; it is necessary to consider other factors along with this component and while the original ARO may have considered these factors in 2007, she did not consider them in the context of the level of permanent entitlement that was ultimately granted to this worker, and neither did she delineate these considerations in her decision of May 31, 2007.
The worker just turned 52 years of age as of the date of this decision; back in 2001 he would only have been 42 years of age. He would therefore not be considered an “older worker” for the purposes of considering what barriers the worker would have to overcome in attempting to re-enter the labour market.
With respect to the worker’s education, he completed Grade 8 in Hungary and then did mechanical work for 10 years with a company where he did a lot of different things. His lack of high school education would certainly impact the worker’s ability to return to the workforce but would not in my view result in a finding of unemployability.
The worker does take a number of different medications, although in neither hearing did he argue that the medications themselves and any potential side effects posed a specific barrier to his return to work. However, the medications were discussed in the context of them not having any impact on relieving the worker’s pain.
It is my view that the evaluation of the worker’s status in 2010 would not practically have been any different back in October, 2001 or at any time beyond that date. He has since that time had the capacity to perform some type of work, at least on a part-time basis.
The question now surrounds the need to determine, as best I can, what type of work this worker could have performed from 2001 onwards in the context of a significant organic and non-organic permanent impairment, as well as other factors, including the worker’s minimal education.
I am satisfied that given the worker’s significant physical restrictions and psychological status, he could only perform very light work on a part-time basis. I have reviewed a number of potential job options (suitable employment or business – SEB), and I find the worker should be paid LOE benefits based on the SEB of Other Elemental Sales Occupations (6623 -Telemarketer or Telephone Solicitor), and based on a determination that the worker is capable of working 15 hours per week.
The worker should be paid partial LOE benefits using the minimum wage as it was in October of 2001. Those LOE benefits should continue from October 1, 2001 until the date of lock-in on November 7, 2006 and then be locked in on the basis of the 2006 minimum wage, from November 7, 2006 until the worker reaches the age of 65.
CONCLUSION
Pursuant to the reconsideration process that occurred in this case I conclude the worker has been, since October 1, 2001:
- partially impaired and capable of performing the SEB of telemarketer/telephone solicitor on a part-time basis at 15 hours per week, and
- capable of earning the minimum wage.
The worker is granted partial LOE benefits based on the minimum wage as it was on October 1, 2001 until November 6, 2007, on the basis of 15 hours per week.
From November 7, 2007 until the worker reaches the age of 65, the worker is granted partial LOE benefits based on the minimum wage as it was in 2006, based on 15 hours per week.
On reconsideration, the objection is allowed in part.
DATED October 5, 2011
K. Wuori Appeals Manager (Acting ARO) Appeals Branch