Worker v. Employer, 2018 CanLII 61826

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

Decision number: 20180018 OBJECTING PARTY: Worker REPRESENTED by: Representative RESPONDENT: Employer (not participating) HEARING: Hearing in Writing HEARD by: S. van Veen, Appeals Resolution Officer DATED: May 15, 2018

ISSUES

The worker objects to the Case Manager’s May 14, 2015 decision to deny the following –

1. Entitlement for permanent disability reassessment of his compensable left ankle, left shoulder, cervical spine and lumbar spine injuries.
2. Entitlement for permanent disability reassessment of his psychotraumatic disability.
3. Entitlement for physiotherapy treatment.

BACKGROUND

On February 11, 1987, this then 32 year old cement finisher fell 15 feet through a floor opening, injuring his left ankle, left shoulder, lower back, neck and head. Entitlement was accepted for a fractured left medial malleolus with surgery, dislocated left shoulder, head injury, neck and lumbar strains. Entitlement was extended for psychotraumatic disability.

The worker’s injuries resulted in permanent disability (PD) with several pension assessments. Based on the latest organic PD assessment in September 2005, he was granted a 40% PD award for his physical injuries as follows – 6% left ankle, 4% left shoulder, 15% cervical spine and 15% lumbar spine. The non-organic (psychotraumatic disability) PD award was last assessed in February 2012 and increased to 20% from the previous 10%. The worker’s PD awards total 60%.

The worker’s subsequent claim for a February 20, 2014 left ankle fracture with surgery, from a slip and fall accident at home, was denied as non-compensable.

In March 2015, the worker requested entitlement for a further PD reassessment and physiotherapy treatment.

In a May 14, 2015 decision, the Case Manager (CM) denied entitlement for a PD reassessment and physiotherapy. The CM determined the worker had not deteriorated from the assessed 60% pension level to warrant a reassessment and additional treatment. The decision was maintained following reconsideration on August 15, 2017.

Worker’s Position

The worker appeals the May 14, 2015 decision. The worker’s representative (WR) provided a brief submission on April 16, 2018. He argued that the worker has continued to deteriorate physically and mentally as a result of his compensable injuries. He submitted that this was demonstrated in the medical evidence on file, particularly the latest reports of the treating psychiatrist and family physician. As the worker’s condition has deteriorated, the WR submitted he should be entitled to a PD reassessment as well as physiotherapy treatment.

The worker’s objection is now under consideration.

AUTHORITY

Operational Policies:

15-04-02 – Psychotraumatic Disability 17-01-02 – Entitlement to Heath Care 18-07-01 – Determining the Degree of Disability

ANALYSIS

In arriving at a decision on the presenting issues, I have considered the evidence on file, submission, relevant policy and legislation. For the reasons set out below, I do not find in favour of the worker and deny entitlement to an organic and non-organic PD reassessment and entitlement to physiotherapy treatment.

1. Permanent Disability Reassessment Entitlement (Organic):

Operational Policy document 18-07-01, “Determining the Degree of Disability,” states that if a permanent disability worsens, the WSIB may reassess the worker's disability. The degree of worsening is determined based on health care information submitted to file. This provision applies for both organic and non-organic permanent disabilities.

For the organic injuries, the worker was last assessed for PD rating purposes on September 7, 2005, by a Workplace Safety and Insurance Board (WSIB) Pensions Medical Consultant. The assessment noted that according to the worker, he had not worked for the last two years. In summary, the physical examination revealed the following –

• Axial loading was positive at C4 through C6 with tenderness from C3 to C6.
• There was tenderness in the lumbar spine extending from T9 to S1. Sciatic notch testing was tender bilaterally.
• Neck examination showed limited range of motion (ROM). Flexion was only 4 degrees. Extension was 22 degrees. Lateral flexion was 18 degrees on the right and 20 degrees on the left. Rotation flexion on the left was 35 degrees and 25 degrees on the right.
• The right shoulder ROM testing indicated abduction was 120 degrees, flexion 130 degrees, extension 50 degrees and adduction at 28 degrees. Internal rotation was 32 degrees and external rotation was 90 degrees. Left shoulder testing showed abduction at 120 degrees, flexion at 140 degrees, extension at 28 degrees and adduction at 25 degrees. Muscle examination showed tenderness in the anterior trapezius border, rhomboid majors bilaterally and medius bilaterally, more so on the right.
• The back ROM showed lumbar extension of 4 degrees, lateral flexion was 12 degrees on the right and 20 degrees on the left. He had pain at L3-S1 with this movement. Rotational flexion to the right was 20 degrees and to the left was 30 degrees. Forward flexion was limited to mid shin with his fingertips.
• Leg circumference measurement noted the right thigh was 2.5 centimeters greater than the left. Mid-calf measurement was equal bilaterally. Light touch and pin prick in the legs was normal bilaterally.
• Straight leg raising on the right was 20 degrees and 30 degrees on the left. Flexion stretch testing was extremely positive bilaterally with pain at the L4-S1 area. The right ankle ROM testing showed 8 degrees of dorsiflexion, 5 degrees of plantar flexion, inversion of 12 degrees and eversion of 9 degrees. In comparison, the ROM of the injured left ankle showed 8 degrees of dorsiflexion, 1 degree of plantar flexion, 9 degrees of inversion and 3 degrees of eversion.
• Non-compensable arthritis of the knees.

The September 7, 2005 PD assessment and findings resulted in an organic PD rating of 40% as follows – 15% neck, 15% low back, 4% left shoulder and 6% left ankle.

The worker requested a PD reassessment in March 2010. A WSIB Medical Consultant offered the opinion that the medical reporting of the areas of injury, since 2007, did not offer any objective findings which would place the worker below his assessed pension level. An organic PD reassessment was then denied.

The worker subsequently sustained further injury to his left ankle on February 20, 2014. On this date, he slipped and fell on a patch of ice in his driveway. He sustained a left ankle fracture that led to open reduction and internal fixation surgery on March 3, 2014. This further left ankle injury and treatment were denied as non-compensable.

In a June 14, 2014 report, the worker’s physician, Dr. Zasowski, wrote that the worker continued to have pain involving the low back and left ankle. The pain was constant and exacerbated occasionally. The back examination was reported as unchanged with flexion measuring 18 inches from fingertip to toe. Lateral bending measured to the lateral knee bilaterally. Left ankle ROM demonstrated marginally restricted dorsiflexion. There were no neurological findings. There were no reported changes to his medication which included Tylenol 3, Tylenol 500, Zoloft, Salofalk, Tecta, Naproxen and Ativan.

On April 20, 2015, Dr. Zasowski reported the worker continued to have chronic daily pain involving his low back, left ankle, neck and shoulders. His clinical examination had not changed measurably from the last report with restricted ROM of the cervical and lumbar spine. He also suffered depression secondary to his injuries.

On May 5, 2016, Dr. Zasowski reported the worker was last seen on February 23, 2016. He had persistent complaints of low back pain and stiffness. Examination revealed restricted ROM with forward flexion carried out 18 inches fingertip to toe distance. There was no extension of the low back and lateral bending was carried out to mid-thigh bilaterally. The worker had chronic mechanical low back pain and remained on a host of medications for compensable and non-compensable conditions.

In the latest June 17, 2016 report on file, Dr. Zasowski indicated the worker was seen regularly for treatment of his pain and related conditions. He was still on a host of medications. Examination revealed that lumbar flexion was very restricted with ROM unchanged from previously reported. Straight leg raising was normal at 90 degrees. Neurological examination was normal. Right hip ROM was also normal. According to Dr. Zasowski, the worker had exhausted physiotherapy allowance and was performing self-directed exercises. He was given a local injection and was being referred to a pain clinic.

In addressing the matter of organic PD reassessment, I find that the medical evidence does not support the WR’s position that the worker’s compensable injuries have worsened since the 2007 PD reassessment. It was based on the 2007 PD examination that the worker was granted a very significant 40% PD award for permanent disability affecting his cervical spine, lumbar spine, left shoulder and left ankle. That pension examination detailed comprehensive objective findings, as above summarized. By contrast, while documenting the worker’s continued pain, the family physician’s latest reports are insufficient and lack comprehensive clinical findings which would support worsening of the compensable injuries.

As the evidence does not establish the worker’s permanent disabilities in his cervical spine, lumbar spine, left shoulder and left ankle have worsened since the last PD reassessment, he has not met the policy conditions for a further reassessment. Entitlement for an organic PD reassessment is, therefore, denied.

2. Permanent Disability Reassessment Entitlement (Non-Organic):

Policy 15-04-02 entitled “Psychotraumatic Disability” sets out the four-category rating schedule for assessing mental and behavioural disorders for accidents before 1990. For the purposes of this appeal, Category 2 sets out the following description for impairments within this rage:

Category 2 – moderate impairment of total person (15% - 25%)

In this category, 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 the members of the family in all activities which take place outside the home. The worker demonstrates a moderate, at times episodical, anxiety state, agitation with excessive fear of re-injury, nurturing strong passive dependency tendencies.

The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal and depressive features, loss of appetite, insomnia, chronic fatigue, low noise intolerance, mild psychomotor retardation and definite limitations in social and personal adjustment within the family. At this stage, there is a clear indication of psychological regression.

The worker’s PD for psychotraumatic disability was initially rated at 10% and made permanent in February 1994. The PD assessment at that time noted the worker was reportedly subdued during the interview with some psychomotor retardation. He reported pain and depression. His sleep was poor and his appetite varied. He was depressed, nervous and irritable. There were cognitive difficulties. The worker spent his time in Italy, doing some cooking and cleaning. There was chronic pain with associated anxiety and depression. He had separated from his first wife which was a great source of stress for him. His prognosis was poor.

Based on a March 4, 2011 Appeals Resolution Officer (ARO) directive, a reassessment of the non-organic PD award was conducted on February 12, 2012, by a WSIB Consultant Psychiatrist. The PD rating was based on a paper review of the file records, at the worker’s request. This included review of the February 1994 PD assessment, details of a May 30, 2011 WSIB Social Worker’s report that involved interview with the worker, and relevant medical records to that point.

The 2012 PD assessment recognized the following details from the Social Worker’s interview–

• The worker reported a variety of pain symptoms and physical limitations. His hair was dishevelled and he seemed in pain, moved slowly and carefully.
• He had poor eye contact. He spoke in a low voice and seemed groggy. His responses to questions were incomplete and he would often trail off. He had difficulty expressing himself.
• He became tearful at various times through the interview.
• The worker reported his pain symptoms had increased and he had more difficulty sleeping. He had disrupted sleep.
• He dressed daily by being careful and moving slowly, with some assistance with socks from his wife.
• He made himself breakfast and lunch as his wife worked during the day. He did the dishes and started dinner preparations.
• He sometimes did light laundry.
• He reported difficulty with memory and concentration, felt unrelaxed and nervous.
• He spent 90% of his time at home where he would lie down and watch television. He had no social life or friends.
• He had returned to work for four years until 2005 when he had to stop because of pain symptoms.

The Consultant Psychiatrist also noted the following relevant non-organic details reported by the worker’s then treating psychiatrist, Dr. Sumner and also Dr. Zasowski:

Dr. Sumner’s records –

• September 27, 2007 – the worker had neuropsychiatric difficulties consistent with the traumatic brain injury. He was treated with Tompamax which was only mildly effective and he was adding Welbutrin.
• December 13, 2007 – initial diagnosis was mixed anxiety and depression secondary to a general medical condition, chronic pain from his work-related accident. He had frontal symptoms from his work-related accident.
• January 16, 2008 – the worker was being treated with 200 mg of Topamax and Concerta was added to treat his pain and an acquired form of attention deficit disorder secondary to his trauma.
• May 5, 2009 – noted he had seen the worker since April 4, 2007 with impaired functioning on a neuropsychiatric basis. He had additional impairment related to his pain. He was not able to care for himself and not able to manage a household. He did not see this changing. He was being treated with Topamax, Concerta and Exelon, with some improvement but not enough to enable him to live independently.
• May 9, 2010 – reviewed the worker’s cognitive difficulties. He was unable to take care of himself because of his head injury. He also had chronic pain. His wife acted as his caretaker.

Dr. Zasowski’s records –

• August 18, 2008 – requested the worker’s pension be reassessed because he had a major depression as evidenced by his dysphoria, insomnia, anhedonia and an inability to concentrate. He had been prescribed Ativan and Celexa.
• September 20, 2010 – noted medications included Exelon, Concerta, Topamax, Celexa 40 and Ativan, as well as non-psychotropic medication. He had a guarded prognosis.

Based on review of the records, the WSIB Consultant Psychiatrist’s general impression was that the worker reported difficulties with pain, anxiety, depressive and cognitive symptomatology since his compensable injury. All reports pointed towards chronic emotional difficulties with or without an organic component. The differential diagnosis included, “a chronic depressive disorder, chronic anxiety disorder, chronic pain disorder and a cognitive disorder NOS.” A 20% non-organic PD award was recommended, increased from the former 10% PD of 1994.

In the present appeal, I must determine if the worker’s compensable psychotraumatic disability has further worsened since the PD reassessment of February 2012. In this regard, the medical records since 2012 primarily address the worker’s physical condition with little mention of the non-organic difficulties.

An April 2, 2014 report from psychiatrist, Dr. Mallia, indicated the worker had been referred by his physician for psychiatric consultation. His former treating psychiatrist until 2013 had moved out of the country. Dr. Mallia noted the 1987 workplace accident with resulting physical injuries and onset of depression. The worker reported he had been feeling distressed by pain in his left leg, lower back and neck. He had also been depressed and preoccupied with his pain. He did not sleep well. He had a close relationship with his three children and shared the house with his second wife. Dr. Mallia reported that mental status examination revealed his speech was normal for pace, volume and tone. His mood appeared to be depressed with a sad and suffered affect. His thought form was coherent and rational. His thought content consisted of vegetative symptoms of depression along with pain. The worker had good judgement. There were no psychotic symptoms and no cognitive impairment. The diagnosis was a Major Depressive Illness, recurrent moderate form and Chronic Pain.

There are no further psychiatric reports on file. There is mention that the worker missed two follow up appointments with Dr. Mallia. Dr. Zasowski’s reports of April 20, 2015 and June 17, 2016 commented the worker had chronic pain from his physical injuries and depression, but provided no other details.

On close review, the symptoms and findings reported by Dr. Mallia and very brief comments of the family physician are consistent with those recorded in the 2012 PD assessment. They do not demonstrate deterioration in the worker’s non-organic condition or any associated regression in his activities of daily living. Rather, the findings clearly reflect a continuation of the existing psychotraumatic disability and not a permanent worsening of the condition.

As the evidence does not establish the worker’s psychotraumatic disability has worsened since the 2012 PD reassessment, he has not met the policy conditions for a further reassessment. Entitlement for a non-organic PD reassessment is, therefore, denied.

3. Entitlement for Physiotherapy Treatment:

Operational Policy 17-01-02, “Entitlement to Health Care,” states that a worker who is entitled to WSIB benefits, is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury.

The worker has not worked since at least 2005. He requested additional physiotherapy treatment in March 2015 because he considered his compensable injuries had deteriorated. However, this is not borne out in the clinical evidence, as detailed above. The records reveal the worker has had courses of physiotherapy and other treatment in the past for pain which have not proven of significant benefit. Given the length of time the worker has had injury-related pain and given its continued existence without any acute recent onsets, it is unlikely that further physiotherapy treatment would have any positive impact, in terms of improving his pain levels and activities of daily living. Therefore, I find it unlikely that further physiotherapy would be necessary, appropriate, or sufficient in this worker’s case. Entitlement for additional physiotherapy treatment is denied.

CONCLUSIONS

1. Entitlement is denied for PD reassessment of the worker’s compensable left ankle, left shoulder, cervical spine and lumbar spine injuries.
2. Entitlement is denied for PD reassessment of the worker’s psychotraumatic disability.
3. Entitlement for physiotherapy treatment is denied.

The worker’s objection is denied.

DATED May 15, 2018.

S. van Veen Appeals Resolution Officer Appeals Services Division