WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180054
OBJECTING PARTY: Worker
REPRESENTED by: Worker Rep
RESPONDENT: Employer
REPRESENTED by: Employer Rep
HEARING: Oral Hearing on September 13, 2018
HEARD BY: L. Cirillo, Appeals Resolution Officer
DATE: September 27, 2018
ISSUES
The worker objects to the Case Manager’s (CM’s) and Non-Economic Loss (NEL) Clinical Specialist’s (NCS’s) decisions dated August 25, 2016, September 27, 2016, December 2, 2016, February 21, 2017 and November 23, 2017 which:
Closed the Work Transition (WT) plan;
Determined the worker was partially disabled and paid Partial Loss of Earnings (PLOE) benefits based on the Graduated Return to Work (GRTW) plan;
Denied ongoing health care and LOE;
Determined the worker was entitled to a 25% NEL for the residual psychological impairment;
Denied secondary entitlement for the worker’s gastrointestinal issues
BACKGROUND
On August 23, 2013, the worker received an emergency call for medical services. During the call, the worker was exposed to a traumatic event, which led to the development of a psychological condition in the form of Post-Traumatic Stress Disorder (PTSD). The worker was 43 years of age at the time and had been working for the employer for 12 years; however, her most recent position was that of a Call Taker.
Following the incident, the worker sought medical treatment with multiple health care professionals including her family doctor and various psychologists, psychotherapists in addition to a program for Traumatic Stress Recovery.
An Appeals Resolution Officer (ARO) decision dated July 23, 2014 granted initial entitlement for Traumatic Mental Stress (TMS) and full LOE benefits were paid from August 28, 2013.
Due to her condition, the worker was admitted into an in-patient program at Homewood Health Centre from August 27, 2014 until October 22, 2014. She was then referred to the Psychological Trauma Program (PTP) at the Centre for Addiction and Mental Health (CAMH) where she participated in individual and group therapy as well as pharmacological treatment. The CAMH assessors ultimately indicated that the worker would have permanent psychological restrictions and would be unable to return to her pre-injury work.
In December 2015, CAMH suggested a graduated return to work plan and as a result, the worker was referred for Work Transition Services (WTS) in March 2016. Following a meeting with the employer, a graduated return to work (GRTW) plan was developed in order for the worker to return to the alternate position of Mail Room Clerk/Receptionist with the employer.
The worker returned to work on April 19, 2016; however, was not consistently attending her scheduled shifts as per the GRTW plan, as she claimed that her condition had deteriorated and now included symptoms of nausea and vomiting which ultimately resulted in her not returning to work as of May 21, 2016. It was concluded that the worker was partially disabled and capable of the work offered by the employer and therefore, the WT plan was closed. In addition, it was determined the worker’s LOE benefits would be adjusted to partial (PLOE) based on the proposed GRTW plan. The decisions were communicated to the worker in correspondence dated August 25, 2016 and September 27, 2016.
The worker was discharged from CAMH and based on the medical documentation on record it was determined that she reached Maximum Psychological Recovery (MPR) as of June 8, 2016 with permanent impairment (PI) and that she had received sufficient treatment for her psychological work-related condition. The decision was communicated to the worker in correspondence dated December 2, 2016.
The worker received a 25% NEL award for the residual impairment in February 2017. Initially, this was reduced according to operational policy; however, the decision was reconsidered and the worker received the entire NEL award as outlined in correspondence dated July 11, 2018.
The operating area later determined that the medical information on file revealed that the worker had suffered from symptoms of nausea and vomiting; however, there was no objective evidence of any physical abnormality therefore, the symptoms could not be directly linked to the work-related psychological condition. The decision was communicated to the worker in correspondence dated November 23, 2017.
The worker objected to the above decisions; however, they remained unchanged and as a result, these matters were referred to the Appeals Services Division for further consideration.
Worker’s Position:
At the hearing, the worker provided detailed testimony with respect to her pre-injury job duties and how following the index incident, she developed an onset of psychological issues.
The worker explained that she suffered an intense reaction to the index incident, and that her symptoms eventually increased over time. She provided testimony with respect to her health care treatment. She outlined that initially she was seeing a therapist, Karen Binch, at the Sharon Trauma Centre; however, her symptoms were so severe that she was later admitted into Homewood for an inpatient program.
The worker described intense symptoms of extreme anxiety, hypervigilance that would not shut off, constant nausea with occasional vomiting, frequent panic attacks, shaking/sweating, feelings of claustrophobia and fear of being out in public.
The worker explained that following treatment at Homewood, she attempted to return to work and she went back to the Sharon Trauma Centre; but she was still unable to perform any kind of duties.
The worker recalled being referred to CAMH in January 2015 and going through multiple assessments. She stated that several recommendations were made regarding pharmacological and ongoing therapeutic treatment. The worker stated that following the assessment she was seeing a girl named xxxx who was an intern working toward her psychological degree. She stated this was the first person she saw and she did not actually see the psychiatrist or psychologist until late 2015/early 2016.
The worker explained that while she was participating in treatment at CAMH she had to travel a long distance to get there and as a result, it was usually a 2-day process as it involved her taking a taxi the day before, staying overnight and then going to treatment and back. The worker explained that this caused her anxiety and hypervigilance to be amped-up.
The worker stated that in December 2015 she was referred to Dr. Kamkar, Psychologist at CAMH. It was at this point that return to work (RTW) was lightly discussed. The worker explained that part of her was excited because she wanted to feel useful and to be part of society again but the other part of her was in fear because she felt she was not ready yet. The worker recalled that her fear was that she was being pushed to RTW and they were making her believe she was ready when she actually was not.
In February 2016 the RTW discussion was accelerating and she noticed a spike in her symptoms. She stated she was having increased sleep disturbance, her anxiety was amped-up, her nausea increased and eventually led to actual vomiting. By the time a firm RTW date was established her condition had deteriorated significantly and she described a depression so severe that she was unable to leave the house, she had constant anxiety, insomnia and hypervigilance. The worker stated she was having panic attacks no matter what she was doing.
The worker recalled that she ultimately returned to work on April 19, 2016 and while her employer was extremely supportive and accommodating, all her symptoms were at peak level or above. The worker stated that while she was in the workplace her body was in “auto-pilot” and she was not mentally present. Then when she would leave work, all her symptoms returned. She explained that she immediately had panic attacks and would vomit on the side of the road.
The worker stated that at the workplace, she had intense nausea but she forced herself not to vomit because she was embarrassed that everyone would hear her. She explained that she tried her best and despite her willingness, by May 2016 she was no longer able to continue as her condition was out of control. The worker described feelings of self-harm and guilt for letting her family down. She also noted that she had developed a gambling and alcohol problem and she was taking her emotions out on her family.
The worker testified that during one of the group sessions at CAMH another patient began talking about a traumatic event that had happened and that this triggered her. She developed flash backs and was frozen in fear. The worker stated that this led to a panic attack that lasted for several hours and it took her a long time to calm herself down. She recalled that once she got her symptoms under control she emailed Dr. Kamkar and told her that she was disappointed because the group was supposed to be a safe place but instead it was a huge trigger for her.
The worker further explained that while Dr. Kamkar indicated in the reports that she was able to return to the GRTW plan, in person she was completely different with her. She stated that in-person Dr. Kamkar was much more understanding and supportive. The worker stated that Dr. Kamkar was pushing her to return to work because she was working for WSIB and because of that she did not trust her anymore. She stated she was let down by CAMH and betrayed by Dr. Kamkar and that she had lost total faith in CAMH as they were not working toward a good outcome for her or working toward an increased level of functioning. As a result, she decided to stop treatment at CAMH.
The worker recalled that her LOE benefits were adjusted to partial and completely ceased in December 2016. The worker stated that she had to use all of her savings to live and once those funds ran out her condition deteriorated even more. Starting in April 2017 the nausea was 24/7 and it totally affected her everyday living.
The worker testified that she underwent multiple tests and investigations including x-rays, ultrasounds, endoscopy and none of these revealed any organic source for her chronic nausea/vomiting. The worker stated that due to this she has lost a significant amount of weight, is extremely weak and she now suffers from shaking and full body tremors.
The worker stated that on August 30, 2016 she was assessed by Dr. Rockman. She stated that she felt this doctor would be independent and impartial with respect to her condition and as a result, she underwent a battery of tests. She stated that following completion of all the questionnaires it was concluded that she was not capable of any return to work and that she required further treatment. It was at this point that she returned to the Sharon Trauma Centre and was placed with a social worker by the name of xxxx.
The worker stated that while she was in counselling and on medication, her mind was still racing and she could not shut it down. She was still isolating and she had no social life. She would only leave the house on a necessity basis. She stated she had cognitive and memory issues and in November 2017 she had dark thoughts again and was unable to get herself out of them. She sought emergency treatment and was seen by Dr. Stokl and he agreed that her symptoms were at peak levels or above, work was not an option for her and that she needed a medication change. She explained that Dr. Stokl diagnosed her with treatment resistant depression and this made her feel like she would never get better again.
Her family doctor, Dr. Hall, eventually referred her to Dr. Haggith, Psychiatrist in early 2017 and she has been in ongoing treatment with her until the present. She currently attends treatment once per month and is on the maximum dose of Effexor, which helps with her anxiety, and Trazadone, which she recently started to see if it helps with her sleep disturbance. Despite this, she states that Dr. Haggith has not spoken to her about a time frame for RTW, as her symptoms are so severe that they do not even talk about it.
In his closing statement, the worker’s representative argues that the predominant issue in this case is the worker’s inability to return to work in accordance with the GRTW plan. In addition, he argues that the worker’s stomach issues are a direct result of the accepted psychological condition. He further states that the NEL quantum does not accurately reflect the worker’s level of disability.
With respect to the GI issue, the representative refers to the medical evidence on record and states that the operating area completely disregarded the opinions of Dr. Hall, Dr. Schep, Dr. Rockman and Dr. Haggith all of whom support that there is no organic cause for the worker’s symptoms and that they were in fact characteristic symptoms of anxiety.
With respect to the MPR date, the representative submits that the date of June 8, 2016 was not accurately chosen. He states that the medical evidence on record clearly supports that the worker was in a state of deterioration at that time and not at MPR. At the very least, he opines that MPR should have been deemed to be the end of November 2016 at the time the worker was diagnosed by Dr. Stokl with treatment resistant depression. In addition, it is his view that the 25% NEL award does not accurately reflect the worker’s impairment.
In order to support his position the representative refers to the definition of a Class 3 impairment, as outlined in operational policy 18-05-11. He argues that the worker demonstrates the characteristics at the higher end of the impairment including a moderate anxiety state, definite deterioration of family adjustment (i.e. anger issues, evidence of discord, incipient breakdown of social function, longer episodes of depression, withdrawal, noise intolerance and stress intolerance). He further states that the worker testified that she has had a significant impact on her ability to sleep, function socially, decreased concentration, memory and pace. The totality of the symptoms, in his view, should be at the high end of a class 3 impairment. In support his position he referred to multiple medical reports on file including the reports authored by Dr. Rockman, Dr. Stokl and Dr. Haggith.
With respect to RTW the representative argues that, the worker was not able to successfully complete a RTW in April 2016 and that the medical evidence is clear that she was not in a position to work from a psychological standpoint. The representative refers to several memos on file, specifically the conversations between the RTW Specialist and Dr. Kamkar in that while it was suggested that a RTW might be therapeutic for the worker it does not specifically state that she could actually RTW.
The representative also outlines that prior to December 2015 the worker was being treated by Ms. Blackmore and there was no indication that the worker was ready to return to work. However, when Dr. Kamkar got involved, there was an immediate initiation of a RTW discussion. The representative argues that in the CAMH reports from December 2015 and February 2016 there is evidence that the worker was experiencing symptoms that rendered her unable to return to work.
The representative further states that there was clear and contemporaneous evidence that due to her condition that a RTW was not going to be successful. This evidence includes the emails the worker sent to Dr. Kamkar and her eventual move back to the Sharon Trauma Centre and the multiple reports on file from CAMH, Dr. Ravindran, Dr. Rockman, Dr. Stokl, and Dr. Haggith.
Employer’s Position:
In his closing statement, the employer’s representative argues that with respect to the worker GI issues, Dr. Haggith speculates there may be a link; however, to date no physiological reason for the condition has been found. In his view, it is not more probable than not that it is linked to the psychological condition. He further stated that in both of her addendum reports, Dr. Rockman re-iterates on Dr. Hall’s reports and relies on the family doctors opinion.
He further states that if the worker was actually suffering from a GI condition, the endoscopy would not have been completely normal. In his view, even if the GI symptoms were related to the psychological condition, there should have been some form of irritation identified on the endoscopy.
With respect to the NEL award, the employer’s representative submits that the June 8, 2016 MPR date was based on the PTP report from CAMH and that it was explicitly identified that the worker had achieved MPR. This was also noted in the August and September 2016 reports. The employer’s representative also agrees with the value of the NEL award.
With respect to RTW on April 18, 2016, the employer’s representative argues that the medical, specifically the December 2015 CAMH report, supports that the worker could RTW in Early 2016. He further states that all the CAMH reporting reveals a moderate level of impairment, which in his view, is consistent with a finding that the worker is partially disabled and that she can work in some capacity. In addition, he notes that not only does the medical support that the worker can work, it also states that it would be beneficial for her to return to work and that not participating in the GRTW plan would do more harm than good.
The employer’s representative opines that the July 2017 and addendum reports from Dr. Rockman were not based on current findings and were not co-signed by anyone. In his view, no weight should be placed on these reports because it does not appear that the worker was seen at that time.
The employer’s representative argues that the worker left CAMH in order to have someone give her a proper diagnosis, and to have someone agree with her. He states that this calls into question her intentions. He submits that 5 years have passed since the index incident and while Dr. Haggith opines that the worker cannot work and that the prognosis is guarded, the previous medical reports suggest the worker can RTW.
In conclusion, the employer’s representative argues that the recent events and the worker’s symptoms are not clearly linked to the index incident. In terms of the worker’s CPP and long term disability awards, it is not known what was used to make those decisions and while the granting of these awards speaks to her level function it does not speak to the work-relatedness of her condition.
For these reasons, the employer agrees with the WSIB’s original position and requests that all the decisions be upheld.
AUTHORITY
11-01-05 – Determining Permanent Impairment
15-05-01 – Resulting from Work-Related Disability/Impairment
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
18-05-03 – Determining the Degree of Permanent Impairment
18-05-04 – Calculating NEL Benefits
18-05-11 – Assessing Permanent Impairment Due to Mental and Behavioural Disorders
EXHIBITS
The worker’s representative submitted additional information, which was accepted as a late submission and marked as Exhibit A.
- Sun Life Financial Long-Term Disability acceptance letter dated May 22, 2018
ANALYSIS
I have considered all of the available information, legislation, relevant operational policies, the testimony provided and the hearing as well as for the arguments presented in reaching this decision. In considering the evidence, I find there is entitlement for the worker’s GI symptoms, the worker was totally disabled and unable to return to work, she did not reach MMR (MPR) until November 2016 and that she is entitled to a 35% NEL for psychotraumatic disability. The rationale for my decision is as follows.
1. Secondary GI Condition
I will first address the worker’s secondary GI issues as they directly affect the other issues in this appeal.
Operational policy 15-05-01 states in part:
Workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.
Injury resulting from work-related injury
Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee, is an example.
As is outlined above entitlement in this case has been accepted for PTSD and Major Depressive Disorder (MDD), which resulted from the index incident that occurred on August 23, 2013. This has resulted in permanent restrictions including not being able to work directly with trauma incidents and content.
During the hearing, the worker testified that as result of her anxiety she has developed secondary GI symptoms in the form of nausea and vomiting. In reviewing the medical reporting on file I note that the worker has experienced some degree of nausea since the onset and that the level and duration of the nausea has increased over time and has ultimately developed into chronic vomiting.
The worker has undergone multiple assessments and tests including x-rays, ultrasounds and endoscopy which failed to reveal an organic cause for the condition. Dr. Hall, the worker’s family physician, and Dr. Schep, Gastroenterologist, who assessed the worker on June 16, 2016, further supported this.
Dr. Hall outlined that Dr. Schep examined the worker and performed a gastroscopy, which only revealed a small hiatus hernia, but was essentially normal. Dr. Hall notes that it was Dr. Schep’s impression that the worker’s symptoms were a result of “emotional” issues.
The operating area denied entitlement for the symptoms citing that there was no organic cause for the condition. However, in reviewing the medical reporting on record specifically, the reports from Dr. Hall I note that the worker was noted to have vomiting which was affecting her employability. In her September 2017 report, Dr. Rockman outlines that the worker’s symptoms of vomiting, sweaty palms, trembling hands, complaints of irregular heartbeats and shortness of breath are characteristics of anxiety and the worker does not experience them other than when she is anxious.
It is my understanding that nausea/vomiting can be symptoms of anxiety. While I acknowledge the employer representative’s arguments the fact of the matter is that Dr. Rockman is a clinical psychologist and I am not persuaded that she would provide an opinion on the worker’s symptoms being characteristic of anxiety, had she not been confident to say so. In addition, the mere fact that an organic cause was not identified, in my view, further supports that the GI symptoms are indeed associated with the psychological condition.
I am further persuaded that there has been ample evidence of the condition throughout the medical reporting on record and find that it is directly related to the accepted condition, as symptoms of the psychological diagnosis.
2. Level of Impairment – Closure of WT Plan
Operational Policy 18-03-02 states in part:
A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of
the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.
During the hearing, I found the worker to be forthright and credible in her testimony. She provided detail with respect to her level of impairment throughout her treatment process and she explained why she experienced a setback during her group treatment and why she felt betrayed by Dr. Kamkar/CAMH, which ultimately led to her being discharged from the program. In reviewing the emails sent by the worker to Dr. Kamkar I am satisfied that the worker did in fact suffer a setback during her group discussions and that while she was a willing participant in the RTW process, she was in fact psychologically incapable of returning to work in April 2016.
While CAMH suggested that, it would be beneficial for the worker to return to work, the fact of the matter is that Dr. Kamkar did not definitively state that she could return to work. Instead, the reports are consistent with a moderate level of functional impairment with respect to her day-to-day activities. In addition, the PTP reports outline that due to the worker’s anxiety, and related vomiting, she could not engage in any activities. I also accept the worker’s testimony with respect to her heightened anxiety symptoms when the discussion relating to RTW commenced and continued.
Following her discharge from CAMH, the worker immediately sought treatment with Dr. Rockman, who had originally treated her at the onset, and in her report dated August 30, 2016 Dr. Rockman notes that if the worker returned to work prematurely she would risk deterioration, even though continuous sick leave was not beneficial. In my view, Dr. Rockman did not necessarily condone total disability for the rest of the worker’s life; however, she was of the opinion that the worker was not ready for work at that time and that she required ongoing treatment.
While I acknowledge the comments made in that the worker was looking for someone to provide an accurate diagnosis and to agree with her, I am not persuaded that this was due to a sinister cause, but in fact, more of a psychological cry for help. I also accept that during the initial phase of the GRTW plan the worker went into work and was operating on “auto-pilot”; however, following her shifts her symptoms accelerated and led to her being totally incapacitated.
The worker ultimately sought emergency medical treatment with Dr. Stokl in November 2016 and the consultation note indicated that the worker was seen due to the severity of her psychological symptoms. He outlined that the worker’s mood was sad and she was objectively anxious. He provided a diagnosis of “treatment resistant major depression with severe anxiety symptoms” on top of a past history of what sounded like PTSD. He went on to note that the worker had been unsuccessful in getting on top of her anxiety and depression and he ultimately opined she was unable to return to work. The worker’s current psychiatrist, Dr. Haggith, has echoed this same sentiment to date.
Therefore, in considering all of the above I find the worker was and continues to be totally disabled and unable sustain the suitable work offered by the employer from April 2016, onward. For these reasons, she is entitled to full LOE benefits, less benefits received, to date and ongoing. She is also entitled to ongoing treatment for the maintenance of her mental health.
3. Maximum Medical Recovery (Psychological)
A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached.
A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
Definitions
Impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.
Maximum medical recovery (MMR) means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.
Permanent impairment means impairment that continues to exist after the worker reaches MMR.
Significant improvement means a marked degree of improvement in the work-related injury/disease that is demonstrated by a measurable change in clinical findings.
The operating area determined that the worker reached MPR as of June 8, 2016 as per the CAMH reports. However, as it has been determined above, the worker’s condition deteriorated upon the initiation of RTW discussions, by being triggered during her group therapy and her participation in the GRTW plan. Therefore, while it may have appeared that the worker’s condition had plateaued by June 2016, I find that she suffered a setback and her condition deteriorated. While I acknowledge the information provided by CAMH in that the worker had reached a plateau with respect to her psychological condition by June 2016, I respectfully disagree. Instead, I am more persuaded that the worker likely reached a plateau by November 2016, or the date she was seen by Dr. Sokl and was diagnosed with a treatment resistant condition.
4. NEL Award
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Associations Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
The Workplace Safety & Insurance Board’s (WSIB) policy for assessing Permanent Impairment due to Mental Health and Behavioural Disorders states in part:
Workers who have a permanent impairment due to a work-related mental or behavioural disorder are entitled to non-economic loss (NEL) benefits based on the severity of the impairment.
The WSIB attempts to determine the degree of the worker's permanent impairment by considering all relevant health care information in the claim file.
If the existing health care information in the claim file is insufficient to determine the degree of the worker's permanent impairment, the WSIB requests additional health care information from the worker or the worker's physician(s). If the information is still insufficient, the WSIB requires the worker to attend a NEL medical assessment conducted by a roster physician to determine the condition of a mentally or behaviourally impaired worker.
The WSIB then rates the condition using the Mental and Behavioural Disorders Rating Scale, which combines elements of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition (revised), (the AMA Guides) with the WSIB's Psychotraumatic and Behavioural Disorders Rating Schedule.
Mental and Behavioural Disorders Rating Scale:
Class 1 - No impairment (0%) - no impairment noted
Class 2 - Mild impairment (5-15%) - impairment levels compatible with most useful function
Class 3 - Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function
Class 4 - Marked impairment (50 - 90%) - impairment levels significantly impede useful function
Class 5 - Extreme impairment (95%) - impairment levels preclude useful function
Based on the NEL evaluation form for psychotraumatic disability dated February 14, 2017 the worker was granted a rating of 25% for psychotraumatic disability, which is considered to be in the Class 3 Moderate impairment. This is defined in policy as:
Class 3, Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function
There is a degree of impairment to 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.
In the lower range of impairment, the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.
In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even room-bound at frequent intervals.
The NEL award was based on multiple medical documents contained in the record including reports from CAMH (Dr. Kamkar, Dr. Ravindran and Dr. Saeedi). As it has been accepted above that the worker reached MPR in November 2016 and has remained totally disabled since that time, the additional reports from Dr. Rockman, Dr. Sokl and Dr. Haggith should be utilized in the NEL quantum review.
A review of the medical reporting in addition to the testimony provided at hearing reveals that the worker complains of daily feelings of being tired/exhausted and having no energy. She also notes problems with concentration and memory. She is unable to focus and has difficulty in socialization. The medical reveals issues with a moderate anxiety state, definite deterioration of family adjustment, anger issues, evidence of discord, incipient breakdown of her social ability, longer episodes of depression, tendency to withdraw, noise intolerance and stress intolerance.
The worker testified that she is not engaging in activities outside of the home and that she has decreased concentration and cognitive functioning. She also explained that she is unable to adapt to stress and this manifests itself as exacerbated anxiety, nausea/vomiting, difficulty coping with daily stressors and that she has developed maladaptive coping techniques.
The worker testified that she is suffering from mal-nutrition and has lost approximately 54 pounds. She testified that she has trouble falling asleep and staying asleep secondary to racing thoughts and being unable to shut her mind off. The worker reported being unable to do home care and she is no longer able to enjoy many of the things she used to including recreational activities and going to the gym.
The worker provided detailed testimony at the hearing with respect to her heightened startle response, hypervigilance and inability to cope with stress. She endorsed feelings of depression and while she loves helping others, she is unable to function.
In considering all of the above, I am persuaded that the worker’s permanent psychotraumatic disability is best described by a mid-range Class 3, Moderate impairment. This is supported by the fact that there is a degree of impairment to complex integrated cerebral functions noting the worker’s sleep disturbance, fatigue, cognitive difficulties, as well as activities of daily living related to anxiety. However, there is no indication of self-neglect. There is however, indication that the worker has had self-harm thoughts and has acted on those thoughts to some degree.
While the worker provided testimony with respect to her emotional state and provided examples of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue and noise intolerance, there is no clear evidence of a phobic pattern or conversion reaction. The worker is still capable of driving to and from appointments and while she may tend to stay indoors for longer periods of time, there is no evidence which supports she is room-bound or homebound.
There is no medical requirement for supervision and/or direction of daily activities due to impaired cognitive function. The worker does in fact leave her house to attend healthcare related appointments on a regular basis.
Therefore, in considering all of the above and when comparing the medical reports on record to the Class 3 description of a Moderate Impairment, I find the worker displays the characteristics at the mid-range of this Class.
Therefore, I find the NEL rating should be 35% as this accurately reflects the worker’s level of impairment with respect to her psychotraumatic disability.
CONCLUSION
I conclude the following:
There is entitlement for the worker’s GI symptoms as being related to the psychological disability;
The worker is totally disabled and unable to return to work. As a result she is entitled to full LOE benefits from April 2016 and ongoing, less any other benefits received;
The worker reached MPR in November 2016, the date she was assessed by Dr. Sokl;
The worker is entitled to a 35% NEL award for psychotraumatic disability.
The worker’s objection is therefore, allowed in part.
DATED September 27, 2018
L. Cirillo
Appeals Resolution Officer
Appeals Services