WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190081
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Out of Business)
HEARING: Oral hearing on June 7, 2019
HEARD by: L. Cirillo, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Interpreter
DATED: June 24, 2019
ISSUES
The worker objects to the Case Manager’s (CM’s) decisions dated June 4, 2012, July 12, 2012, October 5, 2012, October 19, 2012 and October 23, 2012, which concluded the following:
Determined the worker was entitled to a 20% Non-Economic Loss (NEL) award for Chronic Pain Disability (CPD);
Determined the worker was non-co-operative in his Work-Transition (WT) assessment and as a result closed the plan;
Adjusted the worker’s Loss of Earning (LOE) benefits from full to partial (PLOE) based on the entry-level wages of the Suitable Occupation (SO) of National Occupational Classification (NOC) 9483 Light Assembly of $10.25 per hour, 40 hours per week effective October 5, 2012;
Determined the final 72-month lock-in decision to be based on the median wages of the SO of $13.50 per hour, 40 hours per week.
BACKGROUND
On October 23, 2007, the worker was a passenger in a tractor-trailer. It was raining heavily and as a result, the vehicle slid on a bridge across the top of a cement wall, rupturing the gas tank. The cab detached from the frame and fell over the bridge onto the road below where it caught fire. The worker was removed from the cab by emergency personnel and taken to the emergency room with multiple injuries. The worker was 40 years of age at the time and had been working for the employer as a Long-Haul Truck Driver for 1 year.
Initial entitlement for multiple injuries including a head injury, fracture of the T12 superior endplate, comminuted fracture of the nasal bone, fractures of the C6 lamina, small teardrop fracture of the anterior and inferior aspects of the C2 vertebrae were allowed and full LOE benefits were paid.
The worker participated in treatment, and was assessed by several programs including, the Regional Evaluation Centre (REC), the Toronto Rehabilitation Institute (TRI) and the Functional Restoration Program (FRP). The worker also began treatment with Dr. Panjwani, Psychiatrist on July 11, 2008. It was noted that the worker had suffered a head injury with a traumatic brain injury of uncertain severity with a massive scalp laceration with de-gloving of 40% of his scalp, neuropathic pain, headaches due to cervico-genic/neuropathic causes, nasal fracture, possible anosmia and cervical and thoracic vertebral fractures. A diagnosis of Chronic Pain Disorder (CPD) was made with definite malingered neurocognitive dysfunction.
Following review by the WSIB Medical Consultant (MC) in May 2011, it was concluded that the worker met the entitlement criteria for CPD. This encompassed the worker’s residual post-head injury subjective symptoms and the elements of his organic cervical and thoracic spine fractures, hyposmia and scalp de-gloving injury.
The worker was granted a 20% NEL for CPD in June 2012. The decision was communicated to the worker in correspondence dated June 4, 2012.
The worker was referred for a WT assessment in early 2012, which included a vocational assessment. During his evaluation, it was concluded that the worker’s presentation was inconsistent with the accepted work-related condition (20% NEL for CPD) and that there was no information to support that he was physically or psychologically unable to participate in the assessment. As a result, it was concluded that the worker was being un-co-operative and the WT plan would be closed. It was also determined that the worker’s LOE would be adjusted to reflect the entry-level wages of NOC 9482, Light Assembly of $10.25 per hour, effective October 5, 2012. The decisions were communicated to the worker in correspondence dated July12, 2012, October 5, 2012 and October 19, 2012.
At the 72-month final LOE review, it was concluded that the worker had been un-co-operative in his WT plan and as a result his final PLOE would be based on the median-level wages of the chosen SO of $13.50 per hour, 40 hours per week, until age 65. The decision was communicated to the worker in correspondence dated October 23, 2013.
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:
The worker’s representative provided a written copy of his submissions at the hearing. He argues the following:
The NEL quantum for CPD does not accurately reflect the worker’s condition;
The worker has co-operated to the best of his abilities in WT services;
The worker is totally impaired from working and is unemployable (he also notes the worker has been granted Canada Pension Plan (CPP) Disability benefits). In addition, despite that, the SO of Light Assembly is not suitable. As a result the worker ought to be entitled to full LOE benefits until age 65;
Alternatively, the worker claims that if he is determined to be partially disabled and employable, his deemed earnings effective October 23, 2013 ought to be determined based on minimum wages.
At the hearing, the worker testified (via a Punjabi interpreter) as follows:
He is not able to do anything, he cannot walk, he cannot work;
He demonstrated the scars on his head which resulted from the de-gloving injury;
He stated he hears whistling in his left ear and has constant severe headaches with pain in his neck which runs up and down his face, arm and collar bone;
The worker stated he cannot sit or stand for long periods of time as he has significant pain in his left lower back area;
The worker described left hand tremors;
He stated he takes medicine to help him sleep and manage his pain which provides some relief for 2-3 hours at a time;
He continues to be under the care of his family doctor and his psychiatrist;
Prior to the accident, he had a good life, was working and used to go to movies, parties, weddings but since the accident, his life is not the same. He is no longer able to work, visit friends or go to Temple as often as before due to severe ongoing pain which requires him to lie down most of the time;
The worker stated that prior to his accident he would help with chores around the house but now his wife does everything and he cannot do anything;
The worker explained that his brain does not work the same as it used to. He is forgetful and can’t concentrate;
The worker explained that he spends his day at home and he always has someone there with him, either his son, his sister-in-law or his wife. They prepare his meals for him and give him his medication;
The worker stated he is only able to watch 10-15 minutes of television per day because he cannot concentrate on it and he doesn’t like the noise. He also stated he does not read;
The worker denied leaving his home. He stated he will only go out for certain activities like going to the doctor or buying his medicine when his wife is not able to. The worker confirmed he is capable of driving for short periods of time;
The worker also confirmed he possessed an AZ driver’s licence, between 2007 and 2018 at which point it expired. The worker did not recall attending a medical examination to have it renewed between the above dates.
In his closing statement, the worker’s representative argued:
The worker has suffered severe injuries in the work-related MVA as set out in his submission;
He argued that between 2008 and 2011 the worker was paid full LOE benefits with little to no involvement from WSIB during this time. He submits that this supports that it was accepted that the worker was totally disabled and unable to work. He further argued that the only thing that changed was that the 72-month final LOE review was approaching;
He also noted that the CM did not proceed with the WT assessment until the NEL rating was completed; however, that is not the purpose of the NEL quantum and the roster physician did not comment on the worker’s employability;
He stated that the WSIB used the NEL assessment, after 5 years of the worker being on full benefits, to determine that the worker was able to return to the workforce;
The representative stated there is a lack of medical on file that supports the worker is capable of returning to the workforce. In fact, the TRI, the Health Recovery Clinic (HRC) and all the treating physicians concluded that the worker was not capable of returning to work. Therefore, there is no basis for the WT process to have started;
The representative also argued that if the CM was not going to accept the opinion of Dr. Panjwani then at the very least, a medical opinion should have been obtained but it never was;
With respect to the NEL quantum, he argued that the NEL medical assessment completed by Dr. Morris outlined a class 3 impairment and there is no explanation from the NEL Clinical Specialist (NCS) on why she chose 20%. He stated that the vast majority of the medical evidence describes a situation that does not fall in the bottom of a Class 3 impairment. In addition, if one were to consider the activities daily living analysis form completed by Dr. Morris, it is clear that the worker scored 9 out of 16 categories in the “some but not all useful function” category and overall that is the category that the roster physician placed him;
In other categories, he listed class 4, which is more severe. In his view, in considering the ADL form, Dr. Morris’ examination places the worker in the upper range of class 3;
In terms of the chosen SO, he argued that it is not suitable as the worker was noted to only be capable of sedentary type work as outlined by the HRC and as a result the SO violates the accepted restrictions;
The representative also noted that all of the jobs require the ability to read and speak English; however, it is clear in the file that the worker does not speak English and while the WTS said that the worker co-operated, he would have been able to complete ESL, that is only an assertion, not reality. He argued that the worker only completed grade 5 in India and it is highly questionable that he would have been able to upgrade in English, given the requirements of that SO and given all of his organic and psychological issues. His position is that the SO is not suitable;
Furthermore, he relied on the opinion of Dr. Panjwani, which he states has not been contradicted by any other medical on file that the worker cannot return to work;
With respect to the final LOE review, he argued that the conclusion does not make sense. In his view, had the worker been capable of participating in the WT plan, the earliest possible date of completion would have been spring 2013, and that would have been optimistic, at best. He stated the upgrading would have taken at least 6-8 months’ time and the lock in date was October 2013. Even if the worker were successful, he would only have had 4-6 months of possible experience at the time of the lock in date. Therefore, he argued that the worker would have only been capable of earning entry-level wages at most, not median level wages;
With respect to the comments about the worker malingering /co-operating, Dr. Panjwani ruled out this conclusion in his 2018 report. He stated that he examined the worker over a 10 year period and that he is mainly Punjabi speaking and is familiar with the worker’s culture, which sometimes can be interpreted to be malingering, however, it is not;
In order to support his position, the representative quoted sources from four other doctors that reached the same conclusion. For example Dr. Sourkes, states the worker is medically unsophisticated and has cultural issues. Dr. Sourkes did not think the worker was malingering;
In addition, he noted the psychiatrist at TRI, Dr. Distin spoke to the worker’s inability to articulate his psychological symptoms and that it was difficult to elicit his condition. He also noted cultural factors and lack of education;
In the representative’s view, this is consistent with the rest of the report and the worker’s fixation on pain and this does not automatically equate to a conclusion of malingering. In this case, there are cultural issues and issues with education, injuries and the worker’s fixation on pain;
The representative pointed out that even the Neuro-Psychiatrist, Dr. Wiseman suspected cultural issues and while she is the one who made the diagnosis of malingering, she could not provide confirmation on whether there were bona fide cognitive issues and she noted the cultural aspects.
AUTHORITY
18-03-06 Final LOE Benefit Review
18-05-04 Calculating NEL Benefits
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
19-03-03 Determining Suitable Occupation
ANALYSIS
I have reviewed the record, legislation and relevant operational policies in reaching this decision. In considering all of the evidence including the medical on file, the WT assessment, testimony provided at the hearing and the arguments presented I find the worker is entitled to a 35% NEL award for CPD.
In addition, based on the worker’s current vocational characteristics, lack of transferrable skills and CPD (with restrictions stemming from the organic condition) he is not employable. The worker is entitled to full LOE benefits from November 6, 2013 to age 65, less any other benefits received. The rationale for my decision is as follows.
1. NEL Quantum – CPD
The Workplace Safety & Insurance Board’s (WSIB) policy for assessing Permanent Impairment due to Mental Health and Behavioural Disorders including CPD, 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
Noting the current NEL rating of 20%, the worker’s condition has been classified in the Class 3 Impairment. This is defined in the policy as:
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.
In this particular case, entitlement has been awarded for CPD versus an organic condition. As the evaluation for CPD is holistic in nature, a CPD NEL benefit supersedes and replaces any prior NEL benefit for the organic/or psychiatric condition within the same claim in order to avoid duplication or stacking of benefits.
In reviewing, the NEL medical assessment report completed by Dr. Morris on May 21, 2012 there is evidence which supports that the worker suffers from CPD with associated sleep disturbance, concentration and memory issues, emotional disturbances, social issues and pain. Dr. Morris outlined that out of 16 categories the worker scored at a grade 3, impairment levels compatible with some but not all useful function in 9 areas and the rest were a grade 4: impairment levels significantly impede useful function.
The NEL evaluation report completed by the NCS dated June 1, 2012 determined that the medical evidence on record supported that the worker’s condition was best described by the low range of a Class 3 impairment, or 20%.
In considering the medical evidence on record, I respectfully disagree with this finding. The worker was specifically referred to Dr. Morris for a NEL medical examination in order to obtain an opinion on the worker’s CPD award. I must point out that Dr. Morris outlined that he was unable to complete the evaluation without the assistance of an interpreter. He explained that the worker had ongoing problems with pain, dizziness, sleep disturbance, and psychological distress. He also noted that due to the language barrier, it was difficult to fully assess his speech, thought form or content. His mood was described as being depressed and his affect was consistent with this. While it was not possible to perform formal cognitive testing, the worker was unable to remember three words for him after a few minutes of hearing them. In his view, the worker had an impairment of moderate severity.
In considering the activities of daily living form, I find the worker has some degree of impairment to complex integrated cerebral functions as evidenced by his reports of problems with concentration and memory, in addition, he has developed dependency tendencies on others (i.e. needs assistance with all meals, medications, personal hygiene).
In addition, there is some loss in personal efficacy as evidenced by the medical reports on file which state his daily activities are limited by chronic pain. There are also reports of sleep disturbance related to his pain and loss to social efficacy as evidenced by the worker’s current inability to get back to his pre-injury occupation and self-report of an inability to leave his home.
There is emotional disturbance related to his work injury as evidenced by reports of depressive-type symptoms including feelings of sadness, anxiety, worthlessness, frustration, and an inability to enjoy life.
In order for the worker’s NEL quantum to be increased, his condition would be required to fit the majority of the criteria in the higher range of the Class 3 impairment. As noted in policy 18-05-11, in the higher range of impairment, a worker generally tends to withdraw from the family, develops severe noise intolerance and significantly diminished stress tolerance. In addition, a phobic pattern or conversion reaction will surface with some bizarre behaviour, with activities restricted to the extent that the worker is homebound and room bound.
When comparing the NEL medical evaluation report to the Class 3 description of a Moderate Impairment, I find the worker displays the characteristics in the mid-range level of impairment in Class 3.
The medical reports on file do identify that the worker has difficulty with activities including self-care, personal hygiene, ambulation, and is dependent on others for most of the day. In addition, there is evidence that the worker isolates himself from others and does not have good communication; he does not participate in any household activities. There is however, evidence that he does leave the house on rare occasions to get his medication and he is able to drive short distances.
There are no specific medical reports associating any neglect of ADL’s or personal hygiene activities despite his psychological condition and there is no evidence he is totally room or home-bound or that he avoids socialization altogether. In addition, the medical reporting does not indicate any evidence of any active or recurring panic attacks, active suicidal thoughts, intent, or ideations, and while the worker continues to struggle with his chronic pain, he manages to attend Temple on occasion.
When comparing the range of symptoms in total to the mid-level of the Class 3 impairment, I note the worker does demonstrate 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.
Therefore, I am persuaded that the medical on file supports the description contained within the mid-range of the Class 3 impairment and as a result, the worker is entitled to a 35% NEL for CPD, as this accurately reflects his current level of impairment with respect to permanent disability.
2. Level of Impairment/Employability
As noted above, entitlement has been accepted for a 35% NEL award for CPD with permanent restrictions stemming from a head, neck and back injury.
In reviewing the multiple medical reports on file including those from the REC, TRI and the HRC, it is noted that the worker’s presentation pattern indicated inconsistencies and suboptimal participation in several of the evaluations with evidence of a significant pain pre-occupation.
At the TRI in June 2008, the worker was assessed by Dr. Wiseman, Neuro-Psychologist and was administered measures of effort and cognitive symptom validity, as well as psychological measures with scales designed to assess for exaggerated or feigned psychological disturbance. His performance on two measures of symptom validity was below chance. His responses on the questionnaires indicated a strong possibility of feigned and/or exaggerated psychological symptoms. Neuropsychological testing was abbreviated because it was unlikely to provide valid information.
Dr. Wiseman noted that the only way for an individual to score so poorly was to know the correct answers and deliberately choose otherwise. Although there may have been psychological reasons for his performance, she opined that it was clearly deliberate and in the context of a disability, evaluation met the Slick et al. (1999) diagnostic criteria for definite malingered neurocognitive dysfunction. It was also noted that the worker may also have a genuine cognitive impairment, but it could not be assessed. His performance on the symptom validity measures indicated that his memory was working adequately for him to respond in the deliberately incorrect way.
Dr. Wiseman noted that the worker’s behaviour during testing was very consistent with focus on his pain and he presented with signs of depressed affect; however, there was considerable evidence of symptom exaggeration on self-report questionnaires, which called into question the credibility of his self-reported psychological symptoms. In addition, he endorsed moderate to severe levels of anxiety on a self-report questionnaire (but he generally denied anxiety during the interview) and a severe level of depression on a second questionnaire. The worker’s overall score on the questionnaires indicated a very high likelihood that he responded in an exaggerated and/or false manner. The doctor did note however, that it was certainly possible that the worker was experiencing psychological distress noting he had experienced a significant injury, which may have created pain or symptoms. In addition, she noted that some of his presentation could reflect a cultural value associated with how to access health care; however, she stated it was rather extreme and rendered her unable to offer any psychological diagnosis with confidence. She stated he might be suffering from a pain disorder.
In conclusion, Dr. Wiseman noted that the worker had suffered from what appeared to be a traumatic brain injury of unknown severity (suspected to be mild to moderate). She stated that while he was deliberately presenting as cognitively impaired, she deferred to the physical evaluators to determine if there was any evidence of exaggerated or malingered physical injuries and noting his pre-occupation with pain, she recommended a referral to a multi-disciplinary cognitive behaviourally oriented program that could address his physical and psychological factors maintaining his disability.
In reviewing, the prior and subsequent reports including those from Dr. Sourkes, Neurologist and Dr. Distin, Psychiatrist I note that mention was made on several occasions that in addition to the worker’s presentation suggesting exaggerated pain, there were many cultural issues and it was not certain that the worker was in fact malingering. In addition, it was noted that the worker was difficult to assess due to his very unsophisticated use of the English language and lack of education. His psychological symptoms were difficult to elicit and it was difficult to assess whether this was due to his psychological symptoms or a lack of awareness. It was suggested that due to the worker’s chronic pain as well as complaints of insomnia, fatigue, concentration and memory problems, significant barriers for return to work were evident.
I also note that even with the assistance of an interpreter, the worker was only able to provide simplistic answers to questions and he appeared to have no understanding of English at all. In a separate conversation with the interpreter, the TRI assessors noted that even in his side discussions with the interpreter, the worker had not been more sophisticated in his language at any point during his TRI assessment and that his language was very simple and lacking in an extensive vocabulary.
In reviewing the HRC discharge report dated December 10, 2008, I note the worker was unable to complete the program due to lack of progress and minimal engagement. Given his poor performance and extreme pain focused presentation during the program, the HRC team was unable to accurately comment on his functional abilities or capacity to work. The only conclusion made was that he would have permanent physical restrictions with respect to bending, lifting, pushing, pulling, repetitive spinal movements and prolonged activities involving sitting, standing or walking. It was also likely that he would not progress beyond the sedentary strength category.
In his report dated April 16, 2018 Dr. Panjwani, who has been treating the worker since July 2008, stated that the worker is mainly Punjabi speaking. Since Dr. Panjwani speaks five Indian languages and understands the subtle socio-cultural and linguistic nuances, he stated his reports include clinical observations specific to diversity population, and are based on a longitudinal ongoing assessment over the years. He stated that sometimes, the presentation of symptoms by South Asian patients is culture based and mistakenly perceived as malingering, as it is in the case of the worker. In his view, the worker has not been malingering and his long-term prognosis is poor due to the severe and prolonged nature of his mental and physical disorder.
In considering all the medical opinions on file, I am persuaded that while the worker’s presentation was interpreted as malingering by Dr. Wiseman, it is possible that this is not the case. Entitlement has been accepted for CPD, which is a pain-focused disorder. All of the medical assessments note significant pain focus, which was earlier described as “functional overlay”. All of the specialists noted the possibility of cultural issues, even Dr. Wiseman. In considering the worker’s lack of education and limited transferrable skills, I find it difficult to accept that the worker possesses the intellectual ability to be able to know all the answers to the questionnaires and deliberately answer incorrectly. While I accept that the worker has exaggerated his symptoms to some degree, I am persuaded by Dr. Panjwani’s opinion, who has been treating the worker since 2008, in that the presentation of South Asian patients is culturally based and can be mistakenly perceived as malingering in this particular case.
I must also note that the worker was referred for a vocational assessment. While he only minimally participated, it was confirmed that the worker only completed a grade 5 education in India and he did not complete any additional education when he immigrated to Canada in 1996. The worker has limited transferrable skills in that he only worked as an AZ truck driver from 1998 to the date of injury and he had no other employment history.
In considering the worker’s NEL for CPD, restrictions stemming from the organic injuries, significant pain focus and lack of transferrable skills; I accept Dr. Panjwani’s opinion in that the worker is unemployable due to a combination of his significant work-related condition, academic profile and physical restrictions. For these reasons, I find the worker is entitled to full LOE benefits from October 5, 2012 to age 65, less any applicable CPP disability benefits.
CONCLUSION
I conclude the following:
The NEL quantum for CPD is 35%;
Based on the worker’s 35% NEL award for CPD, academic profile and physical restrictions he is not employable;
The worker is entitled to full LOE benefits from October 5, 2012 to age 65, less any applicable CPP disability benefits.
The worker’s objection is therefore, allowed.
DATED: June 24, 2019
L. Cirillo
Appeals Resolution Officer
Appeals Services Division