WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFER DECISION
Decision Number: 20150042
Decision Date: March 11, 2015
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer Represented by: Employer Representative
Hearing: Hearing in Writing
Heard by: D. DeRose, Appeals Resolution Officer
ISSUE
The worker objects to the decision he is partially impaired and capable of suitable employment. The worker claims total impairment as a result of organic and non-organic conditions. He seeks entitlement to full retroactive loss of earnings (LOE) benefits from November 13, 2006.
The relevant decisions are January 17, 2012 and May 8, 2014. The issues were reconsidered and upheld November 13, 2014.
BACKGROUND
On January 1, 2006, this then 50 year old material handler was driving a tow motor in the course of his duties. With his head turned over his right shoulder driving in reverse the worker drove over a bump and experienced sudden and sharp neck pain.
Entitlement was accepted for a sprain on a background of asymptomatic cervical disc lesion and associated with nerve disorder with sensory deficit in the left arm. A right rotator cuff injury and upper back injury were not accepted as causally related to the accident history and do not form part of the worker’s claim entitlement.
The worker returned to work with accommodations immediately while receiving conservative treatment. He continued having difficulty at worker and could not resume full hours. In November 2006 the worker laid off work and has not returned to the labour market since. Eventually, permanent neck impairment was identified and the worker received a non-economic loss (NEL) award of 28% in March 2007.
On appeal in October 2011, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) approved entitlement under the psychotraumatic disability policy for depression and anxiety. The WSIAT decision was silent on the issues of permanent impairment for psychotraumatic disability and the nature and extent of any benefits after November 2006.
The decision maker established that, at the time of his layoff, the worker was performing light work which the employer continued to offer and which was determined to be suitable following an ergonomist’s review. In a recent review, the case manager found the worker remains partially impaired even with the added non-organic impairment. Moreover, the decision maker determined the worker’s lay off from work in November 16, 2006 was unrelated to his compensable injuries and accordingly he was not entitled to LOE benefits. This was communicated in a decision of January 17, 2012.
The worker received psychiatric and psychological assessments at Altum Health April 13, 2013 and May 2, 2013 following which he attended a program of cognitive behavioural therapy. At completion of treatment maximum medical recovery with permanent psychotraumatic impairment was identified. Recognition of permanent non organic impairment did not alter the previous decision which found the worker partially impaired and fit for suitable and available work. This decision was communicated May 8, 2014.
The worker received a NEL benefit for psychotraumatic disability rated at 20% NEL for disorders of Major Depression and Anxiety. The combined whole person NEL benefit this claim is 42%.
The worker objected to the denial of full LOE from November 2006 claiming total impairment from any and all work due to his combined organic and non-organic injuries. This is the matter referred to the Appeals Services Division for independent review and consideration.
AUTHORITY
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
18-03-02 Payment and Reviewing of LOE Benefits
18-03-06 Final LOE Benefit Review
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
19-02-01 Work Re-integration Principles, Concepts, and Definitions
19-02-02 Responsibilities of Workplace Parties in Work Reintegration
19-03-03 Determining Suitable Occupation
ANALYSIS
The worker claims entitlement to full loss of earnings (LOE) benefits from November 13, 2006 on the basis he has been unable to return to any and all work as a result of all compensable injuries.
The file information indicates the employer accommodated the worker after the accident with alternate duties until his layoff November 13, 2006. Subsequent to his layoff, the worker received benefits through his employer’s private insurance carrier and Canada Pension Plan (disability) benefits as of June 2008.
It must be determined whether or not the now recognized psychotraumatic disability rendered the available work unsuitable and/or the worker completely unfit for any employment. If it is determined the worker was partially impaired and capable of performing available duties at the time of lay off, even with the added compensable impairment, then the worker’s ongoing loss of earnings cannot be said to be the result of his compensable injuries and entitlement to LOE benefits would not be in order.
The worker’s neck impairment reached maximum medical recovery in June 2006 and the degree of permanent impairment has not changed since his NEL determination. As such, standard neck restrictions continue to apply. After the injury, the worker was provided suitable duties at no wage loss which consisted of labelling skids and counting inventory. The tasks were assessed by a WSIB ergonomist in 2007 and concluded to be consistent with the worker’s medical precautions for his neck injury. He was permitted to perform work at a self-dictated pace and could take additional breaks as needed. There was no requirement for overhead work, prolonged neck postures or repetitive neck movement and there were no production expectations of the worker. The employer continued to keep the job available even after the worker’s lay off. I accept based on the evidence, that the accommodated duties were physically suitable and continued to be available at no wage loss after November 13, 2006.
I am mindful of the recent inclusion of entitlement to psychotraumatic disability with permanent impairment. It has been acknowledged and accepted that the workplace injury also made a relatively significant contribution to the development of the worker’s depression and anxiety. The WSIAT decision accepted a contribution on the basis of an indirect result of his ongoing chronic neck impairment. The WSIAT decision did not include entitlement to post traumatic stress disorder.
The information in the record confirms the worker’s lay off in November 2006 was primarily the result of unrelated health issue concerning the retro orbital lesion that was also impacting the worker’s physical and emotional state. Based on the contemporaneous medical reporting (clinical note of February 21, 2007, family doctor report of February 23, 2007) and the contents of the Manulife Financial insurance application forms completed by the treating physician it appears in my view that the non-compensable eye condition also significantly contributed to the worker’s depression and anxiety and was causing blurred vision and vertigo. He was undergoing medical assessments/testing to determine the nature of the tumor and requirement for surgery. At that point the tumor had not been confirmed benign. I accept that at the time in question, the worker’s loss of earnings related largely to non-occupational factors impacting his ability to work.
I have already accepted the employment performed by the worker at the time of lay off was consistent with his medical precautions for his neck injury and did not result in a wage loss. I also accept the lay off in November 2006 was due primarily to unrelated and pressing health issues and was properly compensated for by third party insurance benefits.
In June 2007 the employer contacted the worker to confirm light work remained available. The worker’s son, on his behalf, indicated the worker remained off work due to depression and dizziness. According to the clinical note of July 13, 2007, the worker had a motor vehicle accident because of his symptoms and was restricted from driving as a result. Further, the
July 27, 007 Manulife application completed by the family physician supports the primary diagnoses responsible for the worker’s ongoing disability was the retro-orbital lesion (SOL) and major depression and anxiety with a complicating diagnosis of cervical strain. The worker’s symptoms included headaches and diminished sleep and had difficulties with concentration which the physician attributed to the worker’s SOL. But for the non-compensable illness and related symptoms, I conclude the worker would likely have been capable of continuing with his suitable and available duties.
In reviewing the medical evidence, I note the family physician’s report of December 30, 2007 provided to the WSIB claim contained a review of the worker’s ongoing impairments. The physician indicated that although the worker’s lay off in November 2006 was due to the right eye lesion, the eye impairment was an incidental finding and was now stable. The physician submitted that most of the worker’s ongoing chronic pain and symptoms of depression and anxiety were due to his neck injury at work and were rendering him unemployable. I am not prepared to simply accept the family doctor’s position in this regard noting that file information and insurance application forms up to that point quite clearly attributed the worker’s emotional conditions and inability to work to his non occupational health issue.
On the issue of entitlement to LOE, I reviewed the medical record to determine whether I can establish a point, if at all, when the worker’s non compensable impairment ceased being the primary cause of the worker’s ongoing full loss of earnings.
A psychiatric report of May 7, 2008 addressed to Manulife for the purposes of maintaining benefits continued to report an Axis I diagnosis of Major Affective Disorder and chronic agitated depression. Under Axis II the psychiatrist listed conditions of Chronic Pain Syndrome and PTSD for which there is no entitlement extended in the claim. Of particular note is that under Axis III, the only physical conditions named as playing a role in maintaining/exacerbating the Axis I and II disorders were the worker’s right eye tumor, blurred vision and vertigo. The workplace neck injury was not referenced so clearly the non-compensable health matter was considered the significant factor in the worker’s ongoing impairment. In contrast, in a letter to the worker’s representative dated September 7, 2012, the psychiatrist was of the view that only the workplace injury played a role in the development of the worker’s psychiatric conditions and rendered him completely unfit for any work. As has been determined by the WSIAT, the workplace injury is a significant but only a partial contributor to the worker’s non organic impairment.
Although I have concluded the worker’s loss of earnings as of the time of his lay off in November 2006 was not the result of compensable injuries I must determine whether or not at any time after November 2006, the combined compensable permanent organic and non-organic injuries rendered the worker totally impaired. To make this determination I have considered the level of psychological functioning represented by the 20% NEL benefit rating.
The NEL quantum for psychotraumatic disability, which is not under appeal, quantifies the worker’s functional loss as it relates to his non organic condition. The disability has been assessed by reference to criteria in policy 18-05-11 and captures the impacts of a worker’s ability to function at home, at work or in social situations. In the circumstances, the worker’s degree of functional loss has been determined to meet the low end range of Class 3, moderate impairment category, reflective of levels compatible with some but not all useful function.
Class 3 sets out a range of ratings between 20% and 45% for permanent impairment. In this class, the impairment is said to affect "complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress."
The Altum Health psychiatric and psychological assessments are noted. The worker was described as alert and oriented although irritated and agitated. He demonstrated moderate emotional distress expressing anger and frustration when answering interview questions. He acknowledged trust issues due to past experiences with the “system”. Despite this he was able to answer questions through an interpreter and demonstrated no difficulty with recall of recent or past medical and personal information. His speech was logical and goal-oriented.
The worker reported constant neck pain with daily headaches, worse in the morning as well as back pain. He has daily feelings of sadness with no interest or pleasure in normal activities. He reported loss of appetite [but noted to be overweight] and diminished energy. He was plagued with feelings of worthlessness and hopelessness and personal failure; he reported anger at his ongoing dependency on his family. He reported intermittent difficulties with memory and concentration although no examples were given. He was self-critical and unusually suspicious and mistrustful of others. Psychological factors were significantly affecting his perception of pain and disability; he saw himself as totally impaired.
Psychosocial stressors included unemployment, claim-related stress/stress with WSIB, pain and functional limitations, poor social support and strained marital relationship. His GAF scores were noted to be 51-60 and 50-51 across both reports. The Altum Health assessors suggested a period of cognitive behavioural therapy.
The worker received 12 sessions of psychotherapy plus an extension beginning June 2013 and ending April, 2014. The worker made some progress during the course of therapy benefitting from pain strategies but his perception of his disability impacted on any further improvement. Further treatment was considered unlikely to result in clinical improvement of his diagnosed condition.
The worker complained of multiple symptoms which included, neck pain, dizziness, blurred vision/reduced vision in right eye, headaches, sleep difficulties’, general weakness, upper and lower back pain. He reported limitations to his ability to sit and walk. He often used his right hand to support his head due to reports of cervical discomfort and inability to hold his head without support. He indicated this affected his driving ability and described how he had installed small mirrors in his car as he is unable to turn his head. He complained of lack of stamina and energy. His sleep is disturbed due to pain however it has improved with anti-depressant medication. The worker reported that all his physical and psychoemotional symptoms were attributed to his work injury and quickly denied that his eye tumor had any effect on him whatsoever which the assessor found perplexing given the reports on file.
The worker’s degree of worry and sensitivity was thought to be within the “normal range”. The worker denied being anxious or having panic attacks. He endorsed being discouraged and withdrawn, sad with little interest or sense of pleasure in things previously enjoyed. He endorsed feeling better when alone. The therapist indicated there were observed cognitive difficulties with attention and concentration. Despite psychotherapy the worker showed no change to his maladaptive thoughts and beliefs regarding pain, fears of re-injury, perceived disability and emotional distress. The final GAF score was 50 at discharge.
The issue to be determined is not whether or not the worker is employable in the open labour market given his compensable organic and non-organic injuries but rather whether these have rendered him totally unfit to perform the specific accommodated duties that have been available to him since his layoff in 2006. The concept of being competitively unemployable is a consideration of the cumulative effect of medical, psycho-social and employment market factors related to the workplace injury that would reasonably impact a worker’s ability to obtain and sustain suitable employment. Taking into consideration the actual circumstances of the case, the worker is not required to look for alternate work in the open labour market where he would be at a significant disadvantage competing with other able bodies candidates. The employer has maintained the intention to reemploy the worker and provide the necessary accommodations suited to his particular injuries.
From the perspective of his organic injury, the worker is not totally impaired. Providing available work duties are consistent with his medical precautions for his neck injury they ought to be physically suitable and the worker ought to be able to perform them. I already determined the duties were suitable from an organic perspective.
From the perspective of the worker’s compensable depressive disorder, there may be additional considerations required although no frank psychological restrictions have been identified. Given the psychotraumatic disability rating at the low end of the moderate category (20% NEL) this signifies the worker is not totally impaired by his depressive disorder but capable of some normal vocational function. I note that in addition to providing relatively simple and light tasks familiar to the worker, the accident employer also offered the worker the flexibility of self-paced activities, the freedom to take necessary breaks and I note the duties did not involve interacting with the public. These latter accommodations would be appropriate for the worker’s non organic impairment. In sum, the available duties with the accident employer were psychologically, as well as physically, suitable. He chose not to return to suitable work with the accident employer and therefore his ongoing loss of earnings since 2006 cannot be directly attributable to his compensable injuries. There is no entitlement to full LOE benefit from November 13, 2006 on this basis.
CONCLUSION
On the rationale provided in the body of this decision, the worker remains partially impaired from compensable organic and non-organic injuries. He is not entitled to full LOE benefits after November 13, 2006 on the basis that the accident employer continued to maintain available for him at no wage loss, duties that were psychologically as well as physically suitable. The worker chose not to return to work with the accident employer and therefore his ongoing loss of earnings cannot be directly attributable to his compensable injuries.
There is no entitlement to full LOE benefit from November 13, 2006 on this basis.
The worker’s objection is denied.
DATED March 11, 2015
D. DeRose Appeals Resolution Officer Appeals Services Division