WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20140002
DECISION DATE:
August 8, 2014
OBJECTING PARTY:
Worker
REPRESENTED by:
Self-Represented
RESPONDENT:
Employer (not participating)
HEARING:
July 10, 2014 – Ottawa, Ontario
HEARD by:
H. Mohamed, Appeals Resolution Officer
ADDITIONAL ATTENDEES:
Worker’s Spouse, Observer
ISSUE
The worker objects to the following decisions:
Determination of full recovery from the workplace injuries
Denial of LOE benefits from November 22, 2011 to May 29, 2012 due to seasonal layoff
Adjustment of benefits based on a long term rate from August 21, 2012 onwards
Denial of Chronic Pain Disorder (CPD)
Denial of Psychotraumatic Disability
Denial of loss of earnings (LOE) from October 23, 2012 onwards
HOW THE ISSUE ARISES
On September 27, 2011, this now 57 year old truck driver was trying to extinguish a fire under his trailer when a tire blew out causing him to be knocked onto his back. The worker was diagnosed with low back and thoracic back strains as well as facial abrasions. Initial medical reporting confirmed a pre-existing chronic back condition. The operating area accepted entitlement for the back strains and the facial abrasions.
The worker went back to his regular job duties with accommodation on September 30, 2011 however he missed certain hours due to physiotherapy appointments. The worker stopped working due to a seasonal layoff effective November 24, 2011 and was not paid any benefits while he was off.
The worker underwent a multidisciplinary (REC) assessment on January 31, 2012. The doctor noted that the worker’s low back pain and thoracic pain was a chronic problem for several years and although there had been improvement since the injury, it would not completely improve.
The worker underwent a work hardening program from February to April 2012 and also participated in a function and pain program in July and August 2012. A psychological assessment conducted at the pain program noted that the worker suffered from pre-existing major depressive disorder (MDD) and previous suicidal ideation. At discharge he was diagnosed with a pain disorder associated with both psychological factors and a general medical condition and MDD.
The employer told the worker in May 2012 that they would not be re-hiring him for the following season. The worker requested entitlement to LOE benefits. In a letter dated May 28, 2012 the Case Manager (CM) advised the worker that since his claim was allowed on an aggravation basis, the evidence indicated that he was back at his pre-accident level and was not entitled to any further benefits. In a letter dated August 22, 2012, the CM reinstated full LOE benefits from
May 29, 2012, which was the date the worker agreed to participate in the pain program, and also because he would require assistance in getting back into the work force.
Another CM, after reviewing all the medical reports, concluded that the worker did not have a permanent impairment due to his workplace injury and nor was he entitled to any further health care benefits, work reintegration services or LOE benefits after October 23, 2012. This was communicated to the worker in a decision dated October 9, 2012. The worker objects to this decision.
The worker requested entitlement to psychotraumatic disability claiming that his pre-existing psychological condition was aggravated by his workplace accident. The CM, in a decision dated December 12, 2013, denied entitlement under the psychotraumatic disability policy and also denied CPD. The worker objects to this decision.
Finally, the worker also objects to the recalculation of his weekly benefits rate from
August 21, 2012 onwards that adjusted his benefits from the short term rate to the long term rate.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
11-01-15 - Aggravation Basis
15-04-02 - Psychotraumatic Disability
15-04-03 - Chronic Pain Disorder
18-03-02 - Payment and Reviewing LOE Benefits
11-01-05 - Determining Maximum Medical Recovery (MMR)
18-02-04 - Determining Long Term Average Earnings: Worker’s in Non-permanent Employment
15-06-04 - Entitlement Following Work Disruptions; Seasonal Layoff
ASSESSMENT OF THE EVIDENCE
In arriving at my decision I have considered the information in the claim file, the workers testimony as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
The worker submitted that he has not fully recovered from his compensable injury. He argued that his condition was aggravated by the compensable accident and that this has been clearly documented by both his family doctor and his psychiatrists. The worker stated that the pain clinic provided a diagnosis of pain disorder with both psychological factors and a general medical condition as well as major depressive disorder. These diagnoses, as well as the recommendations provided, have been ignored by the WSIB. The worker stated that Canada Pension Plan (CPP) accepted and recognised his disability and questions why the WSIB does not. The worker advised that he saw Dr. C, Psychiatrist who concluded that he was totally disabled to return to any gainful employment.
The worker noted that the decision letter of August 22, 2012 noted that he had not fully recovered and would require assistance with return to work. However, once the file was assigned to a new CM, that decision was ignored and it was determined that he had recovered and was back at his pre-accident level. The worker stated he is not sure what happened in two months to change the previous decision.
The worker stated that before the accident his doctors had not provided any restrictions or precautions with respect to his back and he was never advised to work modified duties. He argued that he never lost time from work prior to this accident.
The worker requested the reinstatement of LOE benefits as well as a non-economic loss (NEL) award.
- Does the worker have a permanent impairment for his thoracolumbar region?
After a careful review of the facts, I am persuaded that the evidence supports a permanent thoracolumbar impairment.
According to the Worker’s Report of Injury (Form 6) completed the day after the accident, the worker noted that he was extinguishing a fire on the trailer breaks when the tire blew up into his face and upper body, knocking him down from his knees and causing injuries to his head, upper and lower back. The worker had identified some by the name “D” as a witness. The CM spoke with the witness as documented in memorandum 67. The witness notes that the worker was reaching underneath the trailer with a fire extinguisher when a tire blew. The worker was on his knees at the time and he could not recall if the worker fell backwards due to the force of the explosion.
The clinical entry from Dr. M from that day notes the accident history as described and notes the worker went home after the accident and showered. He felt more pain when he got home. Dr. M notes that the worker’s nasal hairs were not singed and he had a few small abrasions at the edges where his safety glasses were.
The initial Health Professional’s Report (Form 8) from Dr. M noted that the worker exacerbated his previous low back condition as a result of his accident. Dr. M noted that the worker was tender around the L4-5 and S1 region and complained of increasing pain with forward flexion. Physiothaerpy was recommended.
The physiotherapist submitted a Form 8 on October 11, 2011 and provided a diagnosis of right cervical and left lumbar thoracic sprain/strain and noted chronic underlying spondylosis. The worker was provided with restrictions of no lifting greater than 10lbs, no prolonged postures and to avoid any repetitive twisting or overhead work.
The worker saw Dr. MK, physiatrist, on November 10, 2011 and he noted restricted thoracic rotation, particularly to the right with marked tenderness at the T7/8 and T8/9. There was also tenderness noted throughout his thoracic spine. Dr. MK diagnosed thoracic spine dysfunction and myofascial pain post injury. He felt the worker would need a prolonged course of physiothaerpy. Dr. MK’s follow up report dated January 10, 2012 noted improvement from physiothaerpy but the there was still significant pain in the thoracic and low back area. The worker was most tender around the T4/5 and T5/6 area. Facet joint injections were recommended. His April 5, 2012 report notes the worker continues to have significant pain in his right thoracic region with tenderness around the T4/5 and T5/6 area.
The worker was assessed by a doctor at a multidisciplinary assessment on January 31, 2012. The doctor noted that the worker complained primarily of pain under his right scapula. He also complained of low back pain radiating down to the sacral area. The worker felt that he did have a flare up of his pre-existing back pain but in his opinion he had not returned to base line yet. Lumbar spine flexion and extension was limited on examination. The doctor concluded that the worker would not achieve full recovery of his thoracic problem since it has been present for many years and had never completely resolved. The low back was resolving but it was also a chronic problem and may not completely improve. No specific medical restrictions were provided.
The work hardening report of April 26, 2012 notes that the worker continued to have pain in the T4/5, T5/6 and T8/9 and the therapist concludes that the worker presented with chronic thoracic facet dysfunction at multiple motion segments with myofascial pain in the right scapular area. The therapist noted that the worker was able to sit for more than 25 minutes, he was able to push up to 12Kg and lift 8Kg floor to waist. He concluded that the worker had not yet reached the required pushing and lifting required in the pre-accident job.
The worker complained of mid and upper back pain as well as some low back pain at the pain clinic assessment of May 29, 2012. He described the pain being under the right scapula. On examination he was tender to palpate from his cervical spine right through to his lumbar spine. He was also tender on the right medial border of the scapula. Aside from some diminished range of motion in the lumbar spine, his exam was essentially normal. Neurological exam was also normal. The following is noted on page 6 of this report:
“... (The worker) added that he has pain in the middle of his back however explained that this is only aggravated with increased activity and bending. (The worker) indicated that the pain increases while seated for prolonged periods and while driving. He explained that it interferes with many aspects of his life including occupational activities such as hooking a trailer to the truck, driving and manual labour. He also described being unable to engage in household chores and indicated that his wife completes most of them.”
The report notes that the worker can sit and stand for up to an hour but needs to shift positions. He advised that he walks about 45 minutes every day to maintain his fitness level.
The pain program progress report of July 13, 2012 noted that the worker had started treatment on July 3, 2012 and was absent on one occasion. The treatment team noted that maximum physical effort was not observed with respect to standing, sitting, walking lifting, carrying, pushing and pulling. There was pain in his right shoulder blade with shoulder movement but otherwise range of motion testing was essentially within normal limits. The treatment team recommended temporary functional precautions as follows:
Limit material handling (lifting, carrying, pushing and pulling) to sedentary physical demands category
Sitting, standing and walking can be done on a frequent basis
No repetitive shoulder movement
Use proper body mechanics and posture, allowing for frequent posture changes and micro-breaks.
The discharge report of August 14, 2012, confirmed the above restrictions to be permanent. The report noted that the worker was struggling with severe symptoms of depression at discharge. With respect to lifting and carrying, it was noted that his effort was limited by low back pain.
A review of the file record confirms that the worker has a history of back problem that date back as early as 1997, with more frequent complaints from 2009 onwards. The clinical entry dated January 21, 2010 noted that the worker was unable to do any physical work and this resulted in the worker getting fired. An x-ray of the low back on January 22, 2010 noted early degenerative changes at the L3-4 and the L4-5 level with small osteophyte formation.
The worker was seen by Dr. MK on January 8, 2011. Dr. MK noted that there was a disc bulge at the L4-5 Level causing mild narrowing of both neural foramina, worse on the left side, and the disc bulge seemed to abut the far lateral aspects of both nerve roots. There was also evidence of a small annular tear. At the L5-S1 level there was moderate narrowing of both neural foramina, worse on the left side, with broad based disc bulge abutting the exiting L5 nerve roots. There was also fluid in both facet joints.
Dr. MK’s February 2, 2011 report notes that the worker injured himself at work in June 2009 when he fell head first to the ground resulting in a head laceration and pain in his upper and lower back (Dr. MK is referring to a claim that occurred in 2008 not 2009). Dr. MK noted that if he does any kind of physical activity such as lifting, moving or pushing he will have significant increase in low back pain. He needs to change positions frequently. On physical exam, there was tenderness to palpation at T3/4; moderate tenderness at T4/5 and L4/5; and marked tenderness at T6/7 and L5/S1. There was also tenderness over the left sacroiliac joint and piriformis. Dr. MK concluded that the worker had evidence of thoracic, lumbosacral and left sacroiliac joint dysfunction. Six to eight weeks of physiotherapy was recommended.
An MRI of the spine dated March 9, 2011 noted multi-level disc bulges but no significant canal stenosis, disc herniation or narrowing of the neural foramina.
The entry dated March 24, 2011 notes that the worker worked March 14-17 as a long distance truck driver but then quit due to low back pain. It notes that the worker would like to work but his low back pain prevents him. He is diagnosed with chronic low back pain.
A week before the injury, the worker was seen again by Dr. M on September 21, 2011 and was again diagnosed with chronic low back pain and depression.
At the hearing the worker stated that all of his back problems started after his workplace accident in 2008. He actually requested that this back claim be looked at as a recurrence of the 2008 claim. The worker was referring to an injury that occurred on September 3, 2008 when he was trying to fix a backhoe when he fell and struck his head. In reviewing that claim I note that entitlement was accepted for the head, neck and upper back. There was no entitlement granted for the lower or mid (thoracic) back and this was upheld by an Appeals Resolution Officer under that claim.
I note that the CM, in the decision dated May 28, 2012, noted that the worker’s claim was allowed on an aggravation basis. Policy 11-01-15 notes that in cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.
The policy goes on further to state the following:
Decision-makers should first determine entitlement in the claim. Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state.
Entitlement is not limited in cases where there is no pre-accident impairment, or the severity of the accident/exposure on its own would have resulted in additional impairment. This is the case where the impairment is temporary or permanent despite the presence of the pre-accident impairment.
A minor accident is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury or illness.
In order for a claim to be allowed on an aggravation basis, two conditions have to be met once entitlement has been granted – A minor injury and a pre-accident impairment. The policy provides very clear definitions for both these terms.
In my opinion, this case does not meet the criteria for allowance on an aggravation basis because I do not consider the accident history to be minor. In my view, a tire blowing up near the worker and causing him to fall backwards would be considered a moderate accident – one that would be expected to cause a disability - and therefore must be adjudicated on its own merits.
After carefully weighing the medical evidence and comparing the post-injury medical findings to the pre-accident findings, I am satisfied that the worker has suffered a permanent impairment to his thoracolumbar spine due to the workplace accident. This was a difficult decision to make considering that the evidence clearly supports a pre-existing back impairment.
However, I have decided in the worker’s favour on the basis that there is a lack of objective findings pre-accident to compare the worker’s post-accident findings to. Although the clinical notes mention ongoing low back problems before the accident, there is very little mention of the thoracic spine and more importantly there is no range of motion findings available. In the absence of this information I am unable to categorically state that the worker’s back problems are back to the pre-accident level. Medical reports on file support the worker being more symptomatic after the accident. Aside from low back pain, the worker’s primary complaints post-accident are in his thoracic back and under the right scapula and this was not a significant issue prior to the injury. As such, I am persuaded that the work place injury was a significant contributory factor in his ongoing thoracolumbar symptoms.
The worker is entitled to a NEL assessment for a thoracolumbar strain with an MMR date of August 14, 2012. The worker has permanent precautions as outlined in the pain clinic discharge report.
- Is the worker entitled to LOE benefits from November 22, 2011 to May 29, 2012 due to a seasonal layoff?
After reviewing the circumstances surrounding the layoff, I am satisfied that the worker should be entitled to LOE benefits from November 22, 2011 to May 29, 2012.
Policy 15-06-04 states that a worker who is unable to continue working due to a seasonal layoff, and whose employability is clearly affected by his/her work-related impairment/disability and associated clinical restrictions, may qualify for LOE benefits. The policy goes on to state the following:
The following factors suggest that the worker’s employability is clearly affected by the work-related impairment/disability and associated clinical restrictions and that additional WSIB benefits/services may be in order
the worker is in the early phase of recovery (i.e., there is a recent date of accident/recurrence/deterioration)
the worker is still receiving WSIB-approved active (non-maintenance) health care treatment (e.g., physiotherapy) on a frequent basis
the worker is on a graduated return to work program
the worker requires a high degree of accommodation. (Tasks and work processes have been specifically accommodated for the worker’s impairment/disability and are not likely to exist with or be provided by another employer.)
the worker has an impairment/disability that is significant enough that it clearly presents an obstacle to the worker finding alternate employment. (Workers who have more than one work-related impairment/disability may be significantly impaired due to the combination of their impairments/disabilities.)
When looking at the information on file, I note that although the worker was back at work, he was being accommodated in the sense that other employees were assisting the worker with heavy lifting tasks. During the hearing the worker testified that his job not only involved driving but also securing machinery to a flatbed trailer. This involves lifting heavy chains that weigh over 15kgs. The worker admitted that even before the accident he received assistance with this but more so after the injury.
The worker was also in the acute phase of his injury and was in active physiotherapy. Dr. MK’s report of November 10, 2011 notes the worker having marked tenderness around the T7/8 and T8/9 vertebra. Dr. MK felt the worker had a thoracic spine dysfunction and myofascial pain post injury and recommended physiotherapy.
During the period of the layoff, the worker had physiotherapy from
October 7 – December 30, 2011 and also from January 4 to January 31, 2012 as well as work hardening for 2 weeks in February 2012 and 4 weeks in April 2012.
Based on the information before me, I am satisfied that the worker was receiving active healthcare treatment and therefore should be entitled to LOE benefits during the above noted period.
- Recalculation of the worker’s benefits from short term rate to long term rate
The worker objected to the recalculation of his benefits from the short term rate to the long term rate as outlined in the correspondence dated September 20, 2012. At the hearing the worker explained that his only objection to the recalculation was that earnings from 2010 should not be included in the recalculation period as they are not reflective of his real income since he was forced to quit his employer. The worker testified that his employment pattern is usually seasonal in that he works from May to November and usually collects employment insurance (EI) during the other months.
Policy 18-02-04 states that earnings for a worker in non-permanent employment (includes seasonal workers) typically fluctuate as the worker moves from job to job, has periods of unemployment, or experiences periods of higher or lower earnings. Therefore, it is likely that a worker's long-term average earnings will be different than the short-term average earnings. Since it would be unfair to continue paying a worker's loss of earnings (LOE) benefits based on the short-term average earnings, the decision-maker automatically recalculates the average earnings to long-term average earnings.
LOE benefits are paid based on the worker's long-term average earnings from the beginning of the 13th week of LOE benefits.
The policy goes on to state that long-term average earnings for seasonal workers are generally based on employment in the 24 months before the injury. To simplify the process of gathering the worker's past earnings information, the 24-month period may be either extended to include the two full calendar years before the injury, plus the current year up to the date of injury, or shortened to the full calendar year before the injury, plus the current year up to the date of injury, provided that the worker's employment pattern is accurately reflected.
The policy also explains that non-earning periods that are not part of the employment pattern are factored out of the recalculation period. These periods may include:
parental/maternal leaves
unpaid periods of injury or illness
periods of injury or illness for which the worker receives long-term disability benefits
periods of injury or illness for which the worker receives workplace insurance benefits or benefits from another insurance plan
periods of full-time schooling
periods of incarceration
periods on social assistance benefits
unpaid leaves of absence
strikes/lockouts
unpaid periods of absence due to jury duty, spouse's or children's illnesses, funerals, dentist or doctor appointments.
Since the worker’s accident occurred in September 2011, the recalculation period included his entire earnings for 2010 as well as earnings up to September 26, 2011, the day before the accident. The worker provided T4 and T4E earnings information that showed his total gross income during this period was $71,456.59. When dividing this amount by 634 days (total number of days in the recalculation period) we get a weekly long term rate of $788.95. In my view, the calculations were done correctly, utilising the correct earnings information.
The worker did not dispute the actual weekly calculation, rather he objects to using the income in 2010 altogether.
The worker however did not provide any of the reasons outlined above that would allow me to factor out any periods in 2010 from the calculation. In memorandum 62 the worker advised the CM that he quit his employer in 2010 because he was verbally abusive to him. This reason is not sufficient to exclude the period from recalculation.
As such, I agree with the operating area utilising the 2010 earnings in the worker’s recalculation and I am unable to vary this decision.
- Does the worker have entitlement to CPD or Psychotraumatic Disability?
On the issue of whether the worker should have entitlement for CPD benefits related to the compensable accident of September 27, 2011, I do not find for the worker. I find that the weight of the evidence, including the medical evidence, indicates that the worker does not likely have a CPD condition related to the compensable accident and injury. I find that the requirements of policy 15-04-03 are not met in the circumstances of this appeal.
Policy 15-04-03 indicates that there are 5 conditions that must be met in order to be granted entitlement under this policy. The conditions are as follows:
A work related injury occurred
Chronic pain is caused by the injury
The pain persists 6 months or more beyond the usual healing time of the injury
The degree of pain is inconsistent with organic findings
The chronic pain impairs earning capacity. This must be demonstrated in terms of a marked life disruption.
Entitlement for CPD can be granted where there is evidence that pain is predominantly attributable to psychological sources, and where there is sufficient evidence of continuous, consistent and genuine pain since the time of the injury; medical evidence of CPD; and evidence of marked life disruption. In my view these policy requirements for entitlement are not met in the circumstances of this case.
I note that the pain clinic report provided a diagnosis of Pain Disorder with both Psychological Factors and a General medical Condition. However I have difficulties in accepting this diagnosis because at the initial assessment the worker did not exhibit any pain symptoms that would lead the evaluators to this conclusion. For instance, the worker scored low on the Pain Catastrophizing Scale (PCS) which indicated he was at a low risk of disability due to chronic pain. On physical exam he did not display any pain symptoms and rated his pain at 4 out of 10. I realise that at discharge his PCS score was higher and his functioning had deteriorated but given my lack of confidence on the intake diagnosis, it makes me question the discharge diagnosis also.
Although it would appear from the worker’s testimony that he has experienced marked disruptions to his daily life as a result of his workplace injury, that alone is not sufficient to trigger entitlement under this policy. All five requirements outlined in the policy must be present on the evidence, and failure to satisfy any of them is sufficient to deny entitlement. Based on my review of the medical record I am also not convinced that the worker’s pain is inconsistent with the organic findings noted in the MRI report. The worker has disc bulges at nearly all levels of his thoracic and lumbar spine and his pain is in keeping with these findings. The worker also does not display any overt pain symptoms. The pain clinic intake report noted that the worker did not wince or groan throughout the interview and in fact showed very little signs of catastrophization. He did not display any pain behaviours with Dr. C either as is noted on page 16 of his report. At the hearing, I did not observe the worker to be in any significant distress due to his back pain. As such, I am not satisfied that the worker meets the criteria for CPD entitlement.
Turning to the worker’s alternative claim for entitlement for psychotraumatic disability, the requirements for this benefit are set out in policy 15-04-02. It provides:
Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop
Organic brain syndrome secondary to - traumatic head injury - toxic chemicals including gases - hypoxic conditions, or - conditions related to decompression sickness.
As an indirect result of a physical injury - emotional reaction to the accident or injury - severe physical disability/impairment, or - reaction to the treatment process.
The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.
The worker does not have an organic brain injury so that rules out entitlement under the first criterion. None of the medical reports indicate any emotional reaction to the injury or the treatment process. Moreover, the worker is not suffering from a severe physical disability or impairment. The only criterion where entitlement could be considered would be the last criterion, where it is related to extended disablement. In other words, if it can be proven, based on the evidence on file, that the majority of his psychological condition is directly and clearly related to his injury, then entitlement can be considered.
In reviewing the documentary evidence on file it is my opinion that the worker does meet the final criterion.
I note that the worker has been depressed since his teenage years due to a difficult childhood which has been mentioned in numerous reports on file and will not be repeated here as it is not relevant to the issue. Dr. M’s clinical notes from 2000 onwards mention the worker’s depression frequently. For instance, the entry dated November 24, 2003 notes he is no longer seeing Dr. S (psychiatrist) and his mood is low, unemployed and low prospects and is more irritable. The February 16, 2005 entry also notes similar mood issues noting his employment situation. Clinical notes confirm that the worker has been on celexa 20mgs daily. In fact he renewed his prescription of celexa a week before the injury. The worker was followed by Dr. L in 2004 to 2005 and then saw him again in September 2009. Clinical notes in the two years prior to the accident do not indicate any depressive symptomatology and the worker’s depression seems to be under control.
The REC assessment of January 31, 2012 is the first report post-accident to mention the worker’s prior depression. The assessment notes that there were no depressive complaints from the worker and he made no mention of being depressed because of the injury.
The worker was then assessed at the pain clinic on May 29, 2012. The worker explained that he has a significant history of major depression and has been actively suicidal most recently two years ago when he planned to overdose on his medications. He did not go through with it and was not hospitalised. During this assessment the worker underwent a questionnaire for depression and his score suggested mild depressive symptoms. I questioned the worker about this assessment at the hearing. The worker stated that he was very depressed at the assessment and just lay down at the table and was not moving at all.
The July 4, 2012 entry in Dr. M’s clinical notes indicates that the worker was not getting any income and that he was very upset with the WSIB for not allowing his claim. He applied for Canada Disability Pension benefits. His doctor completed the application form on
July 13, 2012. Dr. M notes on page 5 of the form that it is not his depression that is holding him back from working but his chronic back pain. Dr. M goes on to state that if anything, it is his chronic back pain that he made him more depressed.
The August 14, 2012 pain clinic discharge report is in contrast to the May 29, 2012 assessment report. The worker’s depressive symptoms had increased and the worker scored very highly on the depression questionnaire suggesting moderate to major depressive symptoms when it was only minor in May 2012. The report notes that the worker saw a psychologist at the start of the program on July 3, 2012 and reported decreased mood and hopelessness due to his increased pain levels and as a result had isolated himself from his family. At the discharge assessment on
July 30, 2013, the worker advised that he had been actively suicidal the previous week. The worker also advised that his anti-depressant medications were having a negative effect on his sexual functioning and causing suicidal ideation.
The clinical entry from Dr. M dated August 28, 2012 noted the worker’s depression to be bad and that it was his anniversary and he was thinking negative about how little he had accomplished. The worker’s anti-depressant medication was switched from celexa to wellbutrin.
The next entry in the clinical notes is a psychiatry consultation report from Dr. MN dated September 28, 2012. Dr. MN notes that the worker was referred to him by the emergency hospital doctor. Dr. MN notes that the worker has a long history of depression which was treated with celexa 20-30mgs daily. Dr. MN notes that the switch in medications to wellbutrin overnight caused nausea, bad dizziness and “the zaps.” In addition to the severe SSRI withdrawal symptoms, his depression had relapsed with very depressed an anxious mood, loss of interest, poor energy, poor concentration and memory, feelings of hopelessness and worthlessness. Dr. MN recommended that he be put back on celexa as well as wellbutrin to help with his sexual side-effects. He also prescribed Ativan.
The entry for September 29, 2012 by the registered nurse noted that the worker was thinking of overdosing on his medications and that she contacted 911. Hand written notes from the hospital psychologist indicated that extreme depression and suicidal thoughts started after his medication was changed from celexa to wellbutrin.
The next entry is a psychiatrist consultation dated October 11, 2012 from Dr. K. He notes that the worker was referred to him through emergency. He notes that the worker is reporting being more depressed since his 2011 accident and despite being told previously to take wellbutrin and celexa he has not done this yet but did stop taking wellbutrin and this caused a strange feeling but he is better now. He described his marriage as being so so. He advised he received some cognitive behavioural therapy (CBT) through the WSIB which was helpful. Dr. K notes that there were no psychotic thoughts and no suicidal intentions at that time. He had good memory, insight and was oriented in all spheres. Dr. K felt that the worker had chronic depression which was aggravated by the recent work accident. He was advised to attend the hospital’s outpatient program (APHP), which the worker did attend and found helpful.
The Ottawa hospital APHP discharge report of November 8, 2012 notes that the worker’s accident aggravated his psychological condition and he was very focused on his WSIB situation, his disability and the unfairness and injustice. It was noted that the worker was not suicidal throughout the program. He diagnosed the worker with major depressive disorder on Axis 1 and his spinal injury was noted on Axis III
At the January 15, 2013 visit to Dr. M, the worker advises Dr. M that his lawyer will be requesting medical notes prior to 2008. The note indicates that he is still dealing with depression and spends more time in bed. He still has the occasional bad day but is able to avoid remaining down.
The entry dated July 22, 2013 notes that he is getting $700 from CPP and would like to be hospitalised. Paxil helped but gave him diarrhea and celexa is affecting his sex life and depression. On observation the worker had normal affect, groomed appropriately, no thought disorder and no suicidal intent or plan.
The worker then saw Dr. C, Psychiatrist on October 4, 2013. Dr. C noted that since he dropped his lawyers, he required a referral from a doctor and he got this through his family doctor. The worker paid for the IME. The report notes that the worker started to develop symptoms of post-traumatic stress disorder (PTSD) since he was 13 due to a traumatic situation when he was a child. He started to get treatment from Dr. S in 2002-2003 and was prescribed Paxil. He then saw Dr. L in 2004 for 4 to 5 years and was prescribed celexa and his mood was stable until, according to the worker, his workplace accident. He noted that the medications he has been taking have led to sexual dysfunction which has in turn affected his marital relationship. Dr. C diagnosed the worker with major affective disorder, PTSD and Chronic pain with psychological and medical components. The work related injury and the prolonged disability were listed on Axis III. He does not provide any psychological restrictions.
Dr. C notes that the worker has not reached MMR yet and remains totally disabled at this time until he follows his treatment recommendations. Dr. C recommended a switch from Celexa to Cymbalta as this would also help with his chronic pain as well as adding Elavil 25mgs to help with sleeping and Lyrica to stabilize his mood and anxiety. Dr. C also recommended 12 sessions in psychotherapy, CBT and pain behaviour. The worker testified at the hearing that he is taking Elavil and Cymbalta daily but no longer takes Lyrica as he did not find it beneficial.
Based on all the medical reports on file, I am persuaded that the worker’s pre-existing psychological condition was exacerbated by the workplace injury. For entitlement to be accepted the worker does not need to demonstrate that the work-related factors were the sole contributing factor to the onset of his psychological condition. It is enough to show that the work-related factors contributed significantly, regardless of the existence of other non-compensable factors which might also have contributed significantly. I do not dispute that his loss of employment, issues with the WSIB as well as other medical problems were factors that played a role in his psychological symptoms but in my opinion, his organic disability and pain were the major contributing factor.
The worker admitted at the hearing that he has had psychological problems before but that they were under control for the most part and he had not seen a psychiatrist in over 2 years before the accident. The worker testified that pain is the primary reason for his depression and it makes him suicidal. He argued that he got worse after the injury and he is unable to work because his psychological condition and his back.
I note that the worker has been honest and forthright with all the treating doctors about his psychological history. At the hearing the worker gave his evidence in a straightforward fashion without embellishment. I found him to be a completely credible and reliable witness and have accepted his statement that his depression was stable before the accident.
I agree with Dr. C that the worker has not yet reached MMR and would benefit from CBT. The operating area should make arrangements for the worker to receive CBT treatment to improve his psychological conditioning. Upon completion of these sessions, the operating area can make a determination as to whether the worker will have a permanent impairment related to his psychological condition.
The worker advised that he paid over $2400 out of pocket for this assessment and has receipts to support this. Since I have utilised Dr. C’s report in my decision, I would ask that the operating area reimburse the worker the cost of the assessment upon the production of the said invoice(s).
5. Is the worker entitled to LOE benefits after October 23, 2012?
As noted above, I have accepted that the worker has a permanent impairment for his thoracolumbar spine and also has entitlement to psychotraumatic disability. Noting the organic restrictions outlined in the pain clinic report, I do not believe the worker is able to work in his pre-accident job of truck driver as it does require prolonged sitting, lifting as well as labour work. The worker advised that his job required hooking up trailers, securing heavy equipment, shovelling and lifting loads in addition to driving a truck. In my opinion a lot of these duties would be beyond the worker’s physical precautions.
The worker argued at the hearing that he is in receipt of CPP disability benefits and is unable to work currently and that this is the opinion of his doctors, especially Dr. C.
I appreciate that Dr. C feels the worker is totally disabled to return to any gainful employment at the present time due to his psychological condition, however I am reluctant in accepting this recommendation as it is, in my view, incongruent to the mental examination observations noted on page 16 of his report. Dr. C states that the worker was coherent, well dressed with no negligence in appearance, no tangential thoughts and no psychomotor agitation or retardation. There were no features of paranoia or hallucinations and his cognition was intact. Since psychiatrists draw their conclusions on level of disability primarily from the mental examination, I do not understand how Dr. C felt the worker was totally disabled. Moreover it is noted in his report that the worker had to attend court in Poland in September 2013 (just a month before his assessment) in order to resolve his father’s inheritance issue. In my opinion, someone who is deemed totally psychologically disabled would not be able to deal with such intricate legal matters.
I have reviewed Dr. M’s clinical notes as well as the pain clinic report and neither of these reports indicates that the worker is totally disabled from working due to his organic or psychological condition. The APHP discharge report from Dr. Tahirkheli dated
November 19, 2012 noted the following:
“At the time of discharge the worker felt much better. His affect was brighter and he was definitely not psychotic, not suicidal, and motivation was improved. Sleep was interrupted, but he did not want to take any medication for that. The patient was able to express himself better. At the time of discharge, he was not suicidal.”
After his discharge from the APHP program, I note the consultation report prepared by Dr. MJ dated November 29, 2012 which states that the worker came to see him about his hernia. With respect to his depression, Dr. MJ noted the following:
“In the recent past he has had a bout of very severe depression which made him suicidal. He says that he has received excellent treatment for this and is in a much better frame of mind. He is quite happy and indicated that today when he was in my office he was smiling rather than sitting down with his head hanging low between his legs.”
While I note that Canada Pension Plan allowed the worker’s CPP benefits on the basis that they considered him totally disabled, I am not bound by this decision. Entitlement to CPP Disability benefits is considered under different legislation with different criteria and requirements than those found in the WSIA and cannot be correlated. Based on my review of the medical evidence, I consider the worker to be partially disabled.
In my opinion, the worker could have worked in some capacity from October 2012. However without the benefit of a comprehensive vocational and transferable skills analysis it is difficult to determine what, if anything, he could have done and therefore I cannot make a conclusive decision with respect to this issue based on the information on file.
As such, the operating area is directed to conduct a work transition (WT) assessment and identify a direct entry suitable occupation (SO) that the worker could have worked in from
October 23, 2012 onwards and pay retroactive benefits based on these wages. If the worker is willing to participate fully in the WT process and engage in WT activities, then full benefits should be reinstated from the date of this decision and continue until the worker has completed his WT plan. If he chooses not to partake in any retraining option, benefits should be paid based on the identified direct entry SO.
CONCLUSION
The worker’s objection is allowed in part as follows:
The worker has a permanent thoracolumbar strain injury as a result of the workplace injury and is entitled to a NEL award. The MMR date is August 14, 2012.
The worker is entitled to full LOE benefits while on a short term lay-off from November 22, 2011 to May 29, 2012.
The worker’s earnings were re-calculated correctly.
The worker has no entitlement to Chronic Pain Disorder.
The worker has entitlement under the Psychotraumatic Disability policy. There are no psychological restrictions at present and the issue of a permanent psychological impairment can be addressed once the worker completes 12 CBT sessions, which are to be arranged by the operating area. The worker should also be reimbursed fully for the cost of the psychological IME upon the reproduction of his invoice.
LOE benefits from October 23, 2012 to the date of this decision should be paid on a direct entry SO as identified by a WT assessment. Full LOE benefits should be paid from the date of this decision onwards so long as the worker agrees to fully participate and co-operate in the WT process. If not, benefits should be based on the identified direct entry SO wages.
DATED: August 8, 2014
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division