WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20172028
OBJECTING PARTY: Worker
REPRESENTED BY: Legal Services
RESPONDENT: Employer
Not Participating
Decision Date: May 31, 2017 Oral Hearing
HEARD BY: S. Johnson, Appeals Resolution Officer
ISSUES
The worker objects to:
The Case Manager’s (CM) decision letter dated November 20, 2015 that denied entitlement to a psychotraumatic disability.
The CM’s decision letter dated April 27, 2016 that denied entitlement to a Non-Economic Loss (NEL) redetermination for the worker’s work-related lower back injury.
BACKGROUND
On August 17, 2009 this then 47 year old bench hand worker attempted to lift a particle board onto the gluing table when he developed pain in his lower back region. He was lifting the particle board with another co-worker at the time of the work accident. The Operating Area allowed initial entitlement for the worker’s lower back strain and L4-5 disc bulge with sciatica.
The worker reached maximum medical recovery (MMR) for his work-related lower back injury on March 14, 2010 with evidence of a residual permanent impairment. In the NEL Evaluation report dated August 30, 2011 a 32 per cent NEL benefit was granted that recognized the permanent impairment in the worker’s lower back region.
The employer was unable to provide the worker with permanent suitable work duties to accommodate the functional restrictions for his work-related lower back injury. The worker was referred for Work Transition (WT) Services to promote his successful return to the labour market. The WT plan for the suitable occupation (SO) of a CAD Technician (NOC 2253) was approved. The WT plan commenced on August 15, 2011 and the worker successfully completed his plan on July 4, 2014.
In the letters dated November 21, 2013, May 14, 2014 and April 8, 2015 the worker representative requested that the worker be entitled to a NEL redetermination as his physical condition had deteriorated since the time of his original NEL assessment. In a letter dated November 19, 2015 the worker representative requested entitlement be expanded in this worker’s case to include his depressive symptoms as a secondary condition arising from his work-related lower back injury.
In a decision letter dated November 20, 2015 the CM denied entitlement to a psychotraumatic disability. In this letter the CM concluded that the manifestation of the worker’s depressive symptoms were not within the threshold criteria to consider a review for entitlement.
In a decision letter dated April 27, 2016 the CM denied entitlement to a NEL redetermination of the worker’s work-related lower back injury.
These are the issues for determination.
AUTHORITY
WSIB Operational Policy Document No.:
15-04-02 – Psychotraumatic Disability
18-05-09 – NEL Redeterminations
ANALYSIS
I have carefully considered the claim file information, relevant policy, legislation, and testimony provided by the worker and his representative at the oral hearing on May 25, 2017 in reaching this decision.
1. Psychotraumatic Disability
I find that the worker does not have entitlement to a psychotraumatic disability.
According to the Operational Policy Manual (OPM) Document No.15-04-02 – “Psychotraumatic Disability” – the considerations for entitlement are set out where a diagnosis of psychotraumatic disability or impairment can be attributed to a work-related injury as follows:
The condition should become manifest within 5 years of the injury, or the last surgical procedure.
It is accepted as a permanent condition only in exceptional circumstances.
Entitlement may be established when the condition is 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 condition may include clinical entities such as anxiety, neurosis, depression and psychosomatic manifestations.
This policy goes on to state that, in some cases, a psychiatric disability/impairment may become apparent in an otherwise uneventful case, and enquiry establishes its origins to other factors (such as family crisis), having no relationship whatsoever to the accident. The WSIB may pay for the concurrent treatment for a worker if, by doing so, substantial payments under the insurance plan can be avoided. Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition.
The worker representative advanced that the causative test has been established to support that the work accident of August 17, 2009 was a significant material contribution to the worker’s psychological condition. In support of this position the worker representative submits that the worker’s depressive symptoms began to manifest in 2013 and that the medical evidence supports the existence of these symptoms. It was put forth that the worker has no prior history of a similar psychological condition. In the absence of medical evidence regarding the genesis of his depressive symptoms, it was argued that the work-related accident of August 17, 2009 was the significant contributing factor to the worker’s psychological symptoms. Specific case law reference was made in support of the claim that an exception can be made to the five year threshold requirement if there is evidence of symptom manifestation for entitlement to succeed for a psychotraumatic disability.
As an alternative, the worker representative petitioned for entitlement to Chronic Pain Disability (CPD).
I have no jurisdiction to review the worker representative’s request for consideration of entitlement to CPD as this issue is not properly before me and will not be considered in this review.
Turning to the case before me, I first considered the worker’s evidence regarding the gradual emergence of his depressive symptoms. In his testimony, the worker detailed with particularity the following:
Before the work accident of August 17, 2009 the worker described that his health was good, he had no medical issues other than a couple of visits with his doctor for sciatica symptoms and that his home life was great.
Immediately following the work accident of August 17, 2009 the worker described that he did not want to stay at home and that he was hopeful that he would be able to return to work.
He described that he was the bread-winner in the household and that he had a strong work ethic.
He was still able to perform household activities and he would do anything that he could do around the home such as cutting the grass, preparing meals and laundry activities.
He attended the Board-sponsored school program and he described that he was in pain a lot of the days and that he had difficulties focussing on the course materials. The hallways in the school were long to walk and he would experience increased back pain and left leg pain. He would sit down to alleviate his lower back symptoms and described that the pain eventually went away.
He successfully received his CAD Mechanical Design Diploma and he was hopeful that he could find work.
At the completion of his training program he stated that, physically, he was “not bad” and that he felt that he could return to work and do something.
He continued to get declined employment offers from potential employers as most employers required an additional AutoCAD certification.
The Board sponsored him to attain two of the five modules in the AutoCad certification program (the general introduction and Level 1 modules) at College.
The worker secured brief employment with ABC designing kitchens and then with employer XXX.
In his employment with ABC the worker described that his mobility was not too bad yet he would experience an increase in his lower back symptoms if he stood for too long. His maximum standing tolerance at that time was 45 minutes at which point he would have to sit down to recover. He was able to perform measurement activities in the clients’ homes for kitchen designs. He worked approximately 30 days at which time he was let go as the hiring staff member was retiring.
He was employed with XXX for approximately three to four months. He received additional software training. He described that he was not able to grasp the work duties and that he was not physically able to operate and run the CNC machines due to the lifting requirements. During his short period of employment here he described that he experienced an increase in his lower back pain symptoms and that he was depressed when he was let go. He felt that he was not learning fast enough to keep up with the pace of the physical demands and learning requirements to perform the CNC job function.
He was getting depressed as all his job leads were “going nowhere” and that he was unable to concentrate due to the medications that he was ingesting for his lower back symptoms.
He never missed any time from work, he never left early and he never called in sick due to his lower back condition while he was employed at XXX.
He has looked for employment and made application to a couple of potential employment opportunities yet he did not receive any call backs.
The worker stated that he wishes that he could return to work yet expressed his inability to do so due to his deteriorating lower back condition.
He is no longer able to participate in household activities (cut grass, meals and laundry), he is unable to perform his activities of daily living and he requires assistance from his wife to get dressed.
He described that he soils himself in public as he is unable to make it to the washroom facilities due to his physical limitations. He is extremely embarrassed about this issue so much so that he cannot even go out in public to distribute resumes for fear of him soiling himself in public.
The worker began to experience feelings of depression in 2013 yet he tried to stay positive.
He recalls that his family doctor communicated the results of the VON assessment and suggested pain management. His family doctor asked him if he felt like he was going to take his life. The worker replied that he did not have these feelings.
He was not referred to a psychiatrist or a psychologist.
He was not prescribed any medications in 2013 for his feelings of depression.
In 2016 he broke down in his family physician’s office as his lower back pain and functional limitations were described as being “terrible” and that his left leg was starting to give way and causing him to unexpectedly fall without advance warning. His physician referred him for counselling at the time of this visit.
The worker attended counselling as he felt comfortable with this treatment, it was helpful, he did not feel the need pursue further treatment from a psychologist or a psychiatrist and that he was unable to cover the costs to travel for mental health treatment as he did not have a vehicle fit for road travel.
He confirmed that he has never had a prior history of depressive symptoms and that he has never been seen or treated by a psychological or a psychiatrist for similar symptoms.
The worker’s evidence is consistent with the medical evidence. In my review of the medical evidence there is no evidence to suggest that the worker was seen and treated in medical attention for a psychological condition prior to the work accident of August 17, 2009.
I recognize that many events transpire in an individual’s life, and that the more time passes between the initial work accident and the development of a psychiatric condition, the more likely that the psychiatric condition is attributable to other life events. The issue to be resolved in this case is to what degree was the worker’s psychological health attributable to the work injury of August 17, 2009.
I considered that the worker’s overall psychological health status was stable with no active medical treatment plans or interventions recommended for approximately five years until October 20, 2014. In the VON Assessment Report dated October 20, 2014 it was observed that the worker’s anxiety and depression scores on the Hospital Anxiety and Depression Scale (HADS) suggested that he may benefit from a psychiatric consultation or the use of medications. In his evidence the worker described that the results of the VON Assessment Report dated October 20, 2014 were communicated to him by his family physician at which time the worker elected to pursue counselling. He confirmed that he did not pursue treatment from a psychologist or a psychiatrist and that he was not prescribed medications for a psychological condition arising from the VON Assessment Report results dated October 20, 2014. It is significant that at this time the worker was employed on a full-time basis with XXX and that he remained at work until he was permanently laid off on February 20, 2015.
I observe that in the Intent to Object Form dated January 16, 2016 the worker representative advanced that the worker’s symptoms of depression began to develop shortly after he was permanently laid off from his new employer on February 20, 2015. It was put forth that the worker was let go because he could not run the CNC machine due to his work-related lower back injury, his finances began to suffer and that his relationship with his wife began to deteriorate. The worker representative petitioned that these factors demonstrate a legacy of challenges that this worker faced due to his work-related injury that contributed to the development of a psychological condition. In support of this finding the worker representative relied upon the Workplace Safety and Insurance Appeals Tribunal’s (WSIAT) Decision No. 419/14. In this decision the Panel observed that there were “compelling reasons” [emphasis added] to overlook the five year criterion set out in the OPM Document No. 15-04-02 – “Psychotraumatic Disability.” I observe that in this particular case the Panel first acknowledged that the worker received psychiatric treatment within one year beyond the expiration of the five year criterion.
I considered the WSIAT Decision No. 419/14 yet I am not bound by the conclusions reached as it relates to the case before me.
It is instructive that this worker was first seen in psychological consultation on January 25, 2016 which is approximately seven years after the work accident of August 17, 2009 and one year after the worker was permanently laid off from his new employer on February 20, 2015. In the psychologist’s report dated February 3, 2016 it was documented that “no definitive diagnostic formulation is being offered at this time”.
I find that any psychotraumatic disability that the worker claims to have is related to his extended disablement and to non-medical socioeconomic factors, which cannot be directly related to the August 17, 2009 work accident and resulting lower back injury. This worker was not seen or treated by a psychologist or a psychiatrist for psychological symptoms and that an appropriate DSM-IV diagnostic label or diagnostic impression was unable to be provided at the time that the worker received first psychological assessment on January 25, 2016. It is significant that the first psychological assessment was completed almost seven years following the work accident of August 17, 2009.
I find that the work-related lower back injury of August 17, 2009 was not a factor that contributed significantly to the development of the worker’s psychological condition and that it falls short of the evidentiary standard of proof that is required by Board policy to attract entitlement.
I conclude that entitlement to a psychotraumatic disability is denied.
2. NEL Redetermination
I find that the worker is not entitled to a NEL redetermination for his work-related lower back injury.
I had regard for the OPM Document No. 18-05-09 – “NEL Redeterminations”– that sets out decision-makers review the new medical report(s) and all health care information added to the file since the last NEL determination. The most recent medical findings are compared with the clinical condition of the body part, system, or function at the time of the last NEL determination to evaluate whether there is evidence of a significant deterioration. A significant deterioration is a defined term that refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.
The worker representative petitioned that the medical findings support that this worker’s work-related lower back injury has significantly deteriorated and that he is entitled to a redetermination of his NEL benefit. In support of this finding the worker representative relied upon the worker’s clear and unequivocal evidence that he has deteriorated so much so that he is competitively unemployable. It was submitted that the pre-existing condition is purely circumstantial as the worker had no prior lower back symptoms and he was not in any active medical treatment plans or programs for a lower back problem before the work accident of August 17, 2009. It was put forth that this worker’s case is similar to the findings reached in the WSIAT Decision No. 1242/09 and that the claim for entitlement to a NEL redetermination should succeed.
I considered the WSIAT Decision No. 1242/09 yet I am not bound by the conclusions reached as it relates to the case before me.
As prescribed in the OPM Document No. 18-05-09 – “NEL Redeterminations” – I have reviewed the medical information added to the case since the last NEL medical assessment of the worker’s lower back region on July 6, 2011. In my view, I find that a significant deterioration of the worker’s lower back condition has not been demonstrated by a substantial change in medical findings since the last time that he was assessed for a NEL benefit on July 6, 2011.
In reaching this finding, I completed a comparative analysis of the worker’s lower back condition at the time of the NEL assessment on July 6, 2011 and at the time that the worker’s family physician completed a physical examination of the worker’s lower back region on
February 10, 2014. I have taken particular note of the following:
Range of Motion
NEL Assessment, July 6, 2011
Medical Report, February 10, 2014
Forward flexion
20 degrees
5 degrees
Extension
5 degrees
5 degrees
Right lateral flexion
5 degrees
10 degrees
Left lateral flexion
5 degrees
10 degrees
Right rotation
Not available
10 degrees
Left rotation
Not available
10 degrees
I am persuaded by the above evidence that there has not been a substantial change in the medical findings for the worker’s work-related lower back injury since the last NEL assessment on July 6, 2011. I observe that the worker demonstrated an overall improvement in his lumbar spine ranges of motion at the time of the medical assessment on February 10, 2014 with the exception of a decrease in forward flexion.
I find that the worker’s current symptoms are attributable to the underlying degenerative processes and not due to the work-related lower back injury of August 17, 2009. In reaching this finding I relied upon the lumbar MRI report dated December 7, 2015 that observed there has likely been some progression of degenerative changes in the lumbar spine from L3-L5 with increased foraminal narrowing at these levels with neural foraminal narrowing likely, most severe on the left at L4-L5 and mild narrowing in the spinal canal at the L3-4 level without a significant degree of spinal stenosis identified. This finding is consistent with the medical evidence. In a medical report dated February 22, 2016 the family physician reviewed the lumbar MRI report dated December 7, 2015 and concluded that the worker “suffers from lumbar disc disease and further deterioration is continued to be expected”.
I am persuaded by the weight of the medical evidence that does not suggest the worker has experienced a significant deterioration below his 32 per cent NEL benefit for his work-related lower back injury.
Entitlement to a NEL redetermination is denied.
CONCLUSION
I conclude:
Entitlement to a psychotraumatic disability is denied.
Entitlement to a NEL redetermination is denied.
The worker’s objection is denied.
DATED May 31, 2017
S. Johnson
Appeals Resolution Officer
Appeals Services Division