WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20172036
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
HEARING: August 25, 2017 - Toronto
HEARD by: D. Hart, Appeals Resolution Officer
INTERPRETER: (Urdu language)
OBSERVER: (spouse)
Dated: September 25, 2017
ISSUES
The Worker is seeking entitlement to:
- Chronic Pain Disability (CPD) and
- Ongoing psychotraumatic disability.
BACKGROUND
On May 5, 2014, the Worker's sleeve became caught in a machine, pulling his arm in. This caused a right arm crush injury and complex lacerations of the upper third right forearm.
Entitlement was later extended to include a temporary psychotraumatic disability and in a letter dated June 1, 2017, the decision maker informed the workplace parties the psychotraumatic disability had resolved by November 28, 2014.
In a letter dated September 7, 2016, the Worker's Representative requested entitlement to CPD. The decision maker denied entitlement on the basis all policy criteria for entitlement had not been met. She notified the workplace parties of this decision in a letter dated August 4, 2017.
These matters are before the Appeals Services Division for review.
AUTHORITY
15-04-02 - Psychotraumatic Disability
15-04-03 - Chronic Pain Disability
ANALYSIS
I considered the relevant WSIB Operational Policy Manual Documents and legislation, as well as the file evidence, the Worker's testimony and the Worker Representative's submission. I find the worker has ongoing entitlement to a psychotraumatic disability and no entitlement to CPD. The following is a summary of my assessment.
Entitlement to Chronic Pain Disability (CPD)
It is the worker’s representative’s position the worker’s circumstances satisfy all five operational policy criteria for entitlement to CPD.
Policy 15-04-03 - Chronic Pain Disability outlines the criteria for a worker to qualify for a compensation for CPD. All the criteria must be met and supported by the indicated evidence. The criteria are documented in italics.
A work-related injury occurred. The evidence for this is a claim for compensation for an injury has been submitted and accepted.
The Worker meets the first criteria.
Chronic pain is caused by the injury. This is evidenced by subjective or objective medical or non-medical evidence that the worker's continuous, consistent and genuine pain, since the time of the injury, and a medical opinion that the characteristics of the worker's pain (except its persistence and/or its severity) are compatible with the worker's injury and are such, that the physician concluded that the pain resulted from the injury.
The Worker was assessed at the WSIB Hand and Wrist Specialty Program on July 30, 2014. The assessor wrote the Worker had made a partial recovery and further significant recovery was expected in the next three to six months. They expected the Worker would have some degree of residual impairment, most likely weakness and pain, and felt there was a significant chance he would have cold intolerance. The Hand and Wrist Specialty Program discharge report of October 30, 2014, found the worker had pain from the right hand up to the shoulder.
The Worker's family physician wrote to the Ministry of Community and Social Services on December 14, 2015, outlining that the Worker had a very complex laceration to the upper third of his right forearm on May 5, 2015. He described the injury as severe and the consequences of the injury as prolonged. The doctor wrote the Worker continues to have severe pain and burning sensation in his right arm, which causes limitations in the way he is able to use that arm.
The worker testified he continues to experience ongoing right arm pain which radiates throughout the entire arm. He takes pain medication but these have not been helpful.
The Worker has other non-work-related conditions, but there is consistent reporting that the Worker continued to have right arm pain.
I find this criterion has been satisfied.
The pain persists six or more months beyond the usual healing time of the injury. This is evidenced by medical opinion of the usual healing time of the injury, the Worker's pre-accident health status and the treatments received, and subjective or objective medical or non-medical evidence that the Worker's continuous, consistent and genuine pain for six or more months beyond the usual healing time.
The Worker's right arm injury occurred in December 2014 and the medical reporting up to December 2016 described ongoing right arm pain. The worker confirmed in his testimony, he continues to have ongoing right arm pain which is not responding to pain medication some three years after the injury. There is no evidence the worker's pain was not continuous, consistent and genuine, so I find this criteria has been met.
The degree of pain is inconsistent with the organic findings. This is evidenced by medical opinion, which indicates the inconsistency.
There is no medical evidence suggesting the degree of the Worker's pain is inconsistent with the organic findings. In fact, the family physician described the worker’s injury as a severe laceration which was surgically treated. The family physician reported and highlighted on December 14, 2015, the worker’s injury is severe and the consequences are prolonged including an inability to use his dominant right arm for physical activities such as his pre-injury job.
The worker testified his treating practitioner recommended additional surgery but he elected not to proceed with this as the outcome is not guaranteed.
Given the nature and severity of the injury and the medical reporting, I find the degree of the worker’s pain is consistent with the organic findings. I do not find the worker’s circumstances meet this criterion.
The chronic pain impairs earnings capacity. This is evidenced by subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption.
Marked life disruption is the effect of pain experienced by the Worker and the effect on the Worker's activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships. There must be a clear and distinct disruption to the Worker's life, but there is no particular requirement for this disruption to be either major or minor. A disruption in the Worker's personal, occupational, social and home life must be consistent, thought the degree of disruption in each need not be identical.
The worker has not returned to work since the accident. Initially the WSIB acknowledged the injury prevented him from returning to the pre-injury employment but later revised this position.
The Worker reported he has not been able to return to work because of the degree of pain experienced in his hands, as well as the effects of pain medication, which makes him drowsy and dizzy.
The worker discussed the effects of the injury on his personal, social, vocational and social life with the decision maker on August 1, 2017. He described some minor disruption in all aspects of his life and testified about a change in the family dynamic due to the effects of the injury. The worker described the major issue was the disruption in his vocational life. Although the WSIB found he had a full recovery from the effects of the compensable injury, he has been unable to return to his pre-injury job. He described the laceration as severe and to the bone, injuring all the muscles on his dominant right arm.
The worker has objected to the WSIB decision that he fully recovered from the effects of the compensable injury but that is not the subject of this appeal. In light of that decision, there is no disruption to the worker’s vocational life. Should there be a change to this finding on appeal, this particular aspect of marked life disruption can be revisited. However, I find there is some disruption in the worker’s personal, social and home life.
Since the evidence does not support a clear and consistent disruption in the worker’s personal, social, home and occupational life I do not find this criterion has been met.
Since all policy criteria have not been met, I find the worker does not have entitlement to CPD.
Ongoing entitlement to psychotraumatic disability:
The worker was granted entitlement to temporary psychotraumatic disability which the decision maker found resolved by November 28, 2014. It is the worker’s representative’s position the medical evidence does not support full recovery from the psychotraumatic disability.
The worker testified he continued to have psychiatric issues after November 2014. He was unable to explain why there was no treatment between November 2014 and March 2016. He stated his family physician referred him to a psychiatrist whom he sees every six months. He stated initially he was seeing the psychiatrist every three months but this has now been altered to every six month. He takes medication for which Ontario Disability Support Program pays.
The discharge report from the Concurrent Mood and Anxiety Program dated November 28, 2014 states the worker attended five sessions and was discharged due to partial remission and stability in psychological impairment and lack of further psychological treatment goals.
The assessors wrote, at the time of discharge, there was no evidence of marked anxiety in relation to accident related machinery. The worker was able to verbally describe the incident and view similar machinery with low reported or observed distressed. They suggested that the worker resume proximity or use of the machine on a graduated basis to increase self-efficacy and perceived control and facilitate habituation and new learning. Additional psychological treatment was recommended in the event the worker experienced significant anxiety with exposure to the actual machine. The assessors reported they hoped the worker’s residual psychological impairments would continue to decrease as he resumed pre-accident work activities.
The discharge diagnoses included:
- Adjustment disorder with mixed anxiety and depressed mood; mild anxiety disorder not otherwise specified; symptoms of post-traumatic stress disorder, in partial remission; pain disorder associated with both psychological factors and a general medical condition, mild.
- Right forearm laceration injury including flexor and extensor muscles, radial artery, and dorsal sensory branch of the radial nerve per medical file
- Psychosocial and environmental issues include employment uncertainty, limited educational background and limited english communication skills
The family physician reported on December 14, 2015 the worker was waiting for an appointment with a psychiatrist for his depression which was evident for the past 1.5 years. The worker reported symptoms including insomnia, weight loss and tearfulness.
The psychiatrist, Dr Alexander, reported on March 9, 2016, the worker presented with severely depressed mood since the job related accident in May 2014. He also had symptoms of anxiety and possible post –traumatic stress disorder. The worker reported his symptoms included flashbacks and nightmares related to the accident as well as severe anxiety and nervousness when discussing the accident. He also reported depression, insomnia, decreased appetite and lack of concentration. His medications included Lorazepam at bedtime for insomnia or severe anxiety and Tylenol 2 for pain.
Dr Alexander diagnoses included:
- Post-traumatic stress disorder, chronic course (working diagnosis)
- Depressive disorder, not otherwise specified versus major depressive disorder, recurrent, moderate
The most recent report from a psychiatrist is dated October 16, 2016 from Dr Alexander. The worker’s symptoms and diagnoses remained unchanged and the doctor recommend an increase in medication dosage. Dr Alexander indicated he would see the worker again on December 12, 2016 but that report is not in the file.
I find the evidence supports an ongoing psychotraumatic disability. None of the reports suggest the worker had a full recovery. The report from the Concurrent Mood and Anxiety Program discussed improvement in the worker’s condition with treatment but not full resolution. The decision maker found the worker had fully recovered from the effects of the physical injury and the worker never returned to his regular work so there was never an opportunity to determine the worker’s reaction in proximity to the machine. In any event the additional psychiatric reports from Dr Alexander document ongoing psychiatric issues directly related to the effects of the injury.
In spite of the gap between treatment at the Specialty clinic and Dr Alexander, I find the ongoing psychotraumatic disability is directly related to the effects of the compensable injury. There is no evidence of any other intervening event contributing to the ongoing psychotraumatic disability.
The worker’s representative is seeking a finding that the worker has a permanent impairment for the psychotraumatic disability. I find there is insufficient medical evidence in the file for me to make such a ruling.
I find the worker’s psychotraumatic disability had not resolved up to the time of Dr Alexander’s report dated October 16, 2016. The decision maker can obtain updated reports and make a determination about continuing entitlement.
CONCLUSION
I conclude:
- The worker does not have entitlement to CPD
- The worker has ongoing entitlement to a psychotraumatic disability up to the report dated October 16. 2016. The decision maker can obtain updated medical evidence to determine the worker’s ongoing entitlement, if any.
The worker’s objection is granted in part
DATED September 25, 2017
D Hart
Appeals Resolution Officer
Appeals Services Division