WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110033
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative
HEARING: N/A
ISSUE
The worker seeks a permanent disability re assessment
HOW THE ISSUE ARISES
The worker was employed as a seamstress when on January 29, 1980 an overhead florescent light fixture fell from a height onto her adjacent workstation. The resulting crash injured a co-worker. The worker although not physically injured suffered an emotional reaction to this traumatic work place event.
The early history of adjudication of this particular accident history has been contentious. Initially the then Workmen’s Compensation Board denied initial entitlement due to the lack of a physical injury. Following the intervention of the Ontario Ombudsman entitlement was granted for the psycho traumatic reaction to the event but entitlement was limited to the first few days of absence from work.
The worker subsequently objected to the denial of wage loss benefits beyond February 7, 1980. In a detailed decision dated March 14, 1989 the Workers Compensation Appeal Tribunal (WCAT) ( Decision 36 88) granted entitlement for full temporary total disability wage loss benefits from February 7, 1980 to June 28, 1982 and granted entitlement to permanent disability (PD) benefits beyond June 28, 1982. Subsequent to the WCAT decision the worker was assessed for a permanent disability and a 15% permanent disability award granted under the Board’s psycho traumatic disability guidelines.
In June 2010, through a representative, the worker requested that her 15% PD award be reassessed due to deterioration. Up to date medical reporting was obtained and reviewed by the operating area of the Workplace Safety and Insurance Board (WSIB). Following this review the operating area ruled in a decision dated September 10, 2010 and confirmed in a decision dated January 20 ,2011 that the worker’s condition had not deteriorated and a permanent disability re assessment was not in order.
The worker, through her representative, objected to this finding and the matter was referred to the Appeals Branch for further consideration.
AUTHORITY
Operational Policy
18 07 01 Determining the Degree of Disability
RESOLUTION METHOD AND PROCESS
The worker’s representative in completing a 60 day option elected to have an expedited final decision of the WSIB based on the information on file.
ASSESSMENT OF THE EVIDENCE
I have reviewed the file record including the Tribunal decision and subsequent medical reporting. I have reviewed with interest the medical report solicited by the Tribunal from Dr. Freeman of the Clarke Institute and dated July 15, 1988. Dr. Freeman suggested the worker’s pre accident state was one of vulnerability:
The symptoms were probably triggered initially by the impact of the
workplace incident on an already vulnerable, anxious individual who was
unconsciously seeking a "ticket of admission" to psychological dependency.
The worker was known to have past episodes of anxiety and depression. She had previously been treated for tinnitus or ringing in the ears. Dr. Freeman in his report notes the worker’s reaction to her mother’s death of a stroke was to subconsciously emulate (somatically) her perceived symptoms of stroke.
Notwithstanding the pre existing vulnerability and known stress reactions it was the view of Dr. Freeman as accepted by the Tribunal that the work accident led to a new more serious reaction as explained below:
Both the depression and the pathologic reaction to stress had been noted
before the accident at various times, so that it is clear that the patient was predisposed to such reactions. Nevertheless, the accident clearly precipitated a fresh and more severe stress reaction and subsequently a depression more serious than any in the past.
(Page 24 of WCAT Decision 36 88)
Dr. Freeman in response to the Tribunal’s questions regarding the level of the worker’s ongoing disability responded as below:
The worker is symptomatic only when she leaves, or is pushed out of,
the safe "envelope" in which she lives. As long as the "sick role" is
available to her she gets on quite well. (Page 24 of WCAT Decision 36 88)
The above assessment appears to be echoed by Dr. Arbitman a WCB psychiatrist who conducted the permanent disability (PD) assessment
[the worker] was quite pleasant and co operative during the interview . She did not appear to be in distress, except when mentioning the incident. She would start to cry and become tremulous. There was no evidence of thought disorder or delusional thinking. Her sensorium was clear. Her affect was appropriate.
Following the assessment a 15% permanent disability award was granted using the Board’s psycho traumatic and behavioural rating schedule which is in the low end of category 2 moderate impairment
Category 2 - moderate impairment of total person (15% - 25%)
In this category, the worker is still capable of looking after personal needs in the home environment but, with time, confidence diminishes and the worker becomes more dependent on the members of the family in all activities which take place outside the home. The worker demonstrates a moderate, at times episodical, anxiety state, agitation with excessive fear of re-injury, nurturing strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal and depressive features, loss of appetite, insomnia, chronic fatigue, low noise tolerance, mild psychomotor retardation and definite limitations in social and personal adjustment within the family. At this stage, there is a clear indication of psychological regression.
To my mind the 15% PD is supported by the fact that subsequent to the awarding of the pension there is very little medical reporting on file except when difficulties arose over approving certain medications. Information on file confirms that the worker stopped seeing her psychiatrist in 1996. For a period of almost 20 years there is vertically no substantive medical reporting on file. This suggests to me that the worker’s condition was stable and appropriately controlled by medication. It confirms Dr. Freeman’s prognosis that the worker would function well provided that she stays within her perceived safe envelope.
Policy 18 07 01 “Determining the Degree of Disability” supports that the WSIB can reassess a PD award if there is evidence that the work related permanent disability has worsened.
In support of the proposition the worker’s condition has worsened, the worker’s representative relies on recent medical reporting from the family doctor, and the worker’s geriatric psychiatrist Dr. Lewis. Dr. Lewis has completed three reports May 14, 2010, June 6, 2010 and November 11, 2010. The family doctor, in his letter of May 30, 2010 confirms that here had been no specific treatment for post traumatic stress disorder since 1996 other than a maintenance dose of nortriptyline. He confirmed that the worker started to develop symptoms of depression and anxiety in late 2009.
Dr. Lewis in her reports confirms a past history of major depression subsequent to a work accident with full remission over the last 15 years. Dr. Lewis notes three separate triggering events in late 2009. The first was the sudden onset of pain and ringing in her ears in September 2009. The second was a fall down the stairs in October while vacuuming, and the third the death of a brother in November 2009. Dr. Lewis described the onset of pain in the ear in her June 6, 2010 consult report:
She describes one night in early September when she awoke with intense burning pain on the right side of her neck moving to her face on the right side of her head. She also suddenly had an intensification of a noise in her ear and began hearing an echo to her own voice and the voice of others
After a thorough five page assessment where Dr. Lewis described increased symptoms of anxiety and depression and recurring memories of her accident 30 years ago the doctor made the following conclusion
[The worker] has a long history of low mood and somatic symptoms, and has been maintained on nortriptyline 75mg and then 50mg for the past 30 years. Her mood has significantly declined since September 2009, however when she suddenly experienced facial pain a noise in her ear and an echo experience of hearing herself and others. She is experiencing a depressive episode currently, likely precipitated by a medical condition such as a cerebral vascular accident
ANALYSIS
This worker developed a psycho traumatic disability subsequent to the worker accident of January 1980. This incident was seen as being the trigger to the worker, with a pre morbid vulnerability, of developing depression and anxiety. It appears the worker after a period of time settled into a dependent lifestyle and within her own circumstances coped relatively well. The 15% PD award would reflect this reality.
A significant change occurred in or around September 2009. The medical reports appear to confirm a worsening in the workers mood with symptoms of anxiety and depression. The treating psychiatrist attributes the change to a cerebral vascular accident or stroke. The workers pre existing symptoms of tinnitus appear to have been exacerbated by this event. She became distressed by these increased symptoms and thought them to be similar in nature to what she experienced post the work accident in 1980. The fact that the symptoms are similar or believed to be similar by the worker does not make them related or confirm that her worsening symptoms are in fact a recurrence of her work related psycho traumatic disability. The medical reporting supports that her prior work related symptoms of anxiety and depression were in full remission until 2009 when she experienced a flare up due to a new discrete event. The event appears to be, as supported by the treating psychiatrist, to be a cerebral vascular event. Dr. Freemen in his extensive narrative report of July 15, 1988 documents the worker’s pre accident fear of having a stroke. The workers prior [pre accident] problems with tinnitus are also well documented.
From my review it appears that this already classified vulnerable worker experienced a new episode of anxiety and depression following a cerebral vascular event in September 2009. The cerebral vascular accident is in no way related to the work accent of January 1980 or its sequel. The worker’s acute episode of depression and anxiety commencing in September 2009 is likewise not related to the work accident of January 1980. Any worsening of the symptoms of depression and anxiety are not considered to be related to the permanent disability and a permanent disability re assessment is not in order.
CONCLUSION
There is no entitlement to a PD re assessment
The worker’s objection is denied.
DATED May 19, 2011
R. P. Horne
Appeals Resolution Officer
Appeals Branch