APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20210036
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
(NOT PARTICIPATING)
HEARING:
VIDEOCONFERENCE – OCTOBER 28, 2021
HEARD by:
C. GOEGAN, APPEALS RESOLUTION OFFICER
DATED:
NOVEMBER 18, 2021
ISSUE
The worker is objecting to the January 28, 2021 decision of the Case Manager denying entitlement to a psychotraumatic disability.
BACKGROUND
On August 12, 2011, the worker reported an onset of low back pain caused by his work duties as a vinyl cutter. He was then 48-years old and had worked for the employer since October 10, 1996. Entitlement was granted for a lumbar strain and an L5-S1 disc herniation.
The worker had surgery in April 2014 consisting of a lateral decompression and discectomy at L5-S1. He had further revision decompression surgery in February 2015. In August 2016, the worker received a 17% non-economic loss (NEL) award for the permanent impairment resulting from the injury.
When a return to suitable work with the employer was ruled out as a viable option, the worker was referred for work transition (WT) services. At the time of the final loss of earnings (LOE) benefit review in August 2017, the decision was deferred as the worker continued to participate in a WT program.
As part of the WT process, the worker attended a computer skills training and academic upgrading program. A suitable occupation (SO) of Purchasing and Inventory Clerk was selected and the worker was sponsored in an online Supply Chain Management Program through an Ontario college, which he successfully completed in June 2018. He was then provided with a job search training program that included employment placement services. The worker completed the plan WT activities on
December 14, 2018 at which time WT services concluded.
At the conclusion of the WT process, the Case Manager determined the worker was capable of earning of $14 per hour (Ontario minimum wage) in full-time (40-hours per week) employment in the SO.
In a decision dated August 8, 2019, an Appeals Resolution Officer determined the projected earnings used by the Case Manager at the time of the final LOE benefit review were appropriate. In a March 19, 2020 decision, an Appeals Resolution Officer concluded the SO of purchasing and inventory clerk, or any other entry-level occupation was suitable for the worker.
On October 13, 2020, the worker had further surgery to implant a spinal cord stimulator.
The worker attended psychological treatments and the worker’s representative requested entitlement to a psychotraumatic disability under the applicable WSIB policy. In a decision dated January 28, 2021, the Case Manager denied entitlement to a disability as the Case Manager determined the worker had a pre-existing psychological condition that did not deteriorate following the injury. The Case Manager also concluded the majority of factors contributing to the worker’s psychological condition were unrelated to the injury.
The worker objected to the January 28, 2021 decision and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-05 – Determining Permanent Impairment
15-04-02 – Psychotraumatic Disability
November 3, 2014
September 7, 2018
ANALYSIS
I find the worker has entitlement to a psychotraumatic disability. I also find the worker has a permanent impairment and is entitled to a NEL determination. I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and the reasons for my decision are set out below.
Worker Position
The worker’s representative argued that while the worker received treatment for anxiety before the accident, it was controlled. The representative submitted the worker’s anxiety became significantly worse after the accident and argued the anxiety condition has been permanently aggravated as the worker never returned to his pre-accident state.
The representative submitted the worker’s injury resulted in severe physical impairment and years of debilitating pain as the worker had unsuccessful low back surgeries that ultimately lead to the implantation of a spinal cord stimulator. The representative submitted the failure of the second low back surgery in particular, severely affected the worker’s psychological functioning. She maintained the medical evidence in the record clearly establishes the worker’s psychological condition was permanently aggravated by non-medical, socio-economic factors such as the loss of control over his life and pre-accident livelihood that are clearly and directly related to the injury.
The Worker’s Testimony
The worker testified that prior to the accident he did experience anxiety episodes. He could not recall exactly when they began. He testified he went to his family doctor after the anxiety began and his family doctor prescribed the medications Lorazepam and Clonazepam that were effective in controlling anxiety attacks.
The worker testified that currently, anxiety and pain prevent him from leaving his home on a regular basis. He stated that when he does go out and his pain levels increase, he will “run home and hide”. When questioned by his representative about how often he goes out, the worker stated he tries to do activities such as light grocery shopping where he can get in and out of the store quickly. The worker explained he is able to drive, but is only able to drive for short distances. He testified that he is unable to drive while using his spinal cord stimulator because of insurance liability and this increases his anxiety.
The worker testified that he continues to take Lorazepam on an as needed basis. He testified that after the accident, he took Lorazepam approximately three times daily and he currently takes it on an as needed basis. He testified that he also continues to take Clonazepam and CBD oil. The worker indicated he has tried a number of different medications for anxiety over the years but could not recall the names. He stated his doctor recently prescribed Celexa, but explained he did not tolerate the medication and was no longer taking it.
When questioned about his daily activities, the worker testified he normally gets up around 5:00am. He drinks a cup of coffee and completes a routine of two or three hours of stretching exercises in order to get moving. The worker explained if he has an errand to run on a particular day, he will do it and then quickly return home to turn on his spinal cord stimulator. The worker testified he will do lighter household chores such as dishes, but is unable to vacuum. The worker testified that his spinal cord stimulator does help with pain. The worker explained that if he is standing and doing dishes and his back pain increases, he has to lie down and turn on the spinal cord stimulator.
The worker testified he tries to stay engaged and involved with his family but he feels worthless. He explained that he feels worthless and useless because the people around him are able to work and carry on with their regular activities while he is not. The worker indicated that during a typical day, he is “shut down” by pain and anxiety much more than he is functioning well. With respect to sleep, the worker indicated he takes a sleeping pill but wakes frequently during the night.
The worker testified that his feelings of anxiety, panic and depression became significantly worse after his 2015 back surgery. He explained at that point, he realized just how significant his back injury was and how his life changed. The worker stated he experienced increased feelings of panic and anxiety, as he no longer had an employment income and could no longer do any of things he did prior to his injury like playing hockey or golf.
The worker testified he has attended treatment for his mental health and found some of the treatment beneficial. He explained he continues to practice breathing techniques in order to control his anxiety.
Entitlement to a Psychotraumatic Disability
Policy 15-04-02 (Psychotraumatic Disability) provides that if a psychological condition is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability developed within five years of the injury or the last surgical procedure. A psychotraumatic disability is considered to be a temporary condition and is accepted as permanent only in exceptional circumstances.
The policy states that entitlement for any psychotraumatic disability may be established when the following circumstances exist or develop:
- Organic brain syndrome secondary to
- Traumatic head injury
- Toxic chemicals including gases
- Hypoxic conditions, or
- Conditions related to decompression sickness
- An indirect result of a physical injury
- Emotional reaction to the accident or injury
- Severe physical disability or impairment, or
- Reaction to the treatment process.
- The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.
The worker testified that while he experienced anxiety prior to the injury, the condition was controlled with medication. I found this largely consistent with the medical evidence in the record. In May 2011, several months before the workplace injury, clinical notes from Dr. Deimling, the worker’s former family doctor, indicated the worker was experiencing severe anxiety and panic attacks to the extent he could barely manage after he stopped taking the medication Celexa. Dr. Deimling advised the worker to resume taking the medication and by August 12, 2011, Dr. Deimling stated there had been marked improvement in the anxiety and the worker was experiencing no significant symptoms.
With respect to the post-injury psychological symptoms, I note that on May 16, 2012, the worker attended a concurrent mood and anxiety assessment at the WSIB Function and Pain Program (FPP). In the report,
Dr. Oosterhoff, a psychologist, diagnosed an anxiety disorder related to post-injury adjustment issues and frustration as well as a pre-existing history. Dr. Oosterhoff indicated the factors contributing to the worker’s anxiety symptoms included prolonged recovery from the work injury, pain related focus and distress, perceived physical limitations as well as family and work-related issues. Dr. Melnyk reported the worker presented with increasing panic attacks since the injury triggered by pain, financial concerns, employment issues and increased exposure to feared situations. While Dr. Oosterhoff and Dr. Melnyk noted the worker’s pre-existing anxiety issues, I find it significant that both clinicians related the worker’s psychological symptoms to his inability to cope with post-injury pain, post-injury financial concerns and employment related issues that began following the injury.
The worker subsequently participated in psychological treatment through the WSIB FPP with Dr. Vettese, a psychologist. In a discharge report dated January 30, 2013, Dr. Vettesse indicated that while the worker continued to experience stress associated with pain, claims related issues, return to work and relationship difficulties secondary to pain he no longer met the diagnostic criteria for an adjustment disorder or an anxiety disorder. Dr. Vitesse indicated the worker’s diagnosis at discharge was a chronic pain disorder with psychological factors and a general medical condition. I interpret Dr. Vettese’s report to mean that while the worker no longer met the criteria for an anxiety disorder, he continued to experience psychological symptoms due to pain and non-medical, socio-economic factors related to the injury.
The worker underwent low back surgery in April 2014. In a chart note dated July 3, 2014, Dr. Deimling indicated the worker presented with a history of progressively escalating chronic global anxiety symptoms. The chart note indicated the worker’s anxiety levels had steadily increased over the past couple of months although the worker was not aware of any specific triggers.
In an August 11, 2014 chart note, Dr. Deimling stated the worker was getting more and more chronically anxious and he diagnosed severe chronic anxiety. In a report dated August 16, 2014 Dr. Deimling indicated the worker had both increased anxiety and degenerative disc disease in the lumbar spine.
The worker underwent a second low back surgery involving a spinal fusion on February 15, 2015 and later completed a WT plan by December 14, 2018. Following the completion of the WT plan the worker attended further psychological assessment at the WSIB Musculoskeletal Program with Dr. Smith, a psychologist. In a report dated January 24, 2019, Dr. Smith noted the worker had experienced an increase in ruminative thinking and stress-related anxious agitation. Dr. Smith stated the worker’s recent deterioration into mild to moderate anxiety was related to the worker’s loss of income and his belief his physical capacities were severely limiting. I found Dr. Smith’s report to be consistent with the worker’s testimony in that his anxiety worsened following his second surgery in 2015 as he testified it was at that point he realized how much his life had changed as a result of the accident. Dr. Smith endorsed the diagnoses of somatic symptom disorder with predominant pain and an anxiety disorder as occupational. While Dr. Smith indicated the worker was capable of returning to competitive work without psychological restrictions, he recommended further psychological treatment.
The worker subsequently attended treatment with Ms. Radan, a psychotherapist at Altum Health. In a report dated June 12, 2019, Ms. Radan indicated the worker remained “quite symptomatic” with respect to ongoing anxiety and required a combination of both psychotherapy and medication to manage the symptoms.
A WSIB Back and Neck Specialty Program psychiatry consultation report from Dr. Svihra, a psychiatrist, the worker presented with features of somatic symptom disorder with predominant pain, as well as increased anxiety since the injury. Dr. Svihra endorsed the diagnoses of somatic symptom disorder with predominant pain, panic disorder and an unspecified anxiety disorder as occupational diagnoses.
Dr. Svihra recommended medication changes and recommended further psychiatric treatment for medication management and psychological support if proposed plans for a spinal cord stimulator were to proceed.
In a November 15, 2019 medical report for Canada Pension Plan Disability Benefits, Dr. Mollon listed the worker’s medical conditions as chronic low back pain following a work injury and an anxiety disorder that was likely to remain the same. In the report, Dr. Mollon referenced WSIB reports detailing the worker’s physical and mental disabilities following the 2011 workplace injury.
In a report dated December 3, 2019, Ms. Radan described the worker experiencing increased anxiety in relation to impending surgery to implant a permanent spinal cord stimulator, ongoing stress related to his finances and return to work.
A February 18, 2020 report from Dr. Melnyk, a psychiatrist at the WSIB Back and Neck Specialty Program described the worker continuing to experience high levels of anxiety and feelings of irritability. Dr. Melnyk noted the worker would frequently leave a situation due to anxiety and the worker described feeling as though his head was “spinning”. The worker did report being better able to manage panic attacks and noted they had been less intense. Dr. Melnyk continued to endorse the diagnoses of somatic symptom disorder with predominant pain and an unspecified anxiety disorder and recommended medication changes.
In a report dated September 6, 2020, Dr. Melnyk indicated the worker’s condition had improved.
Dr. Melnyk reported increased functioning following a reduction in the worker’s anxiety and she noted he had not experienced any further panic attacks. Dr. Melnyk indicated it was a negative prognostic indicator that despite psychiatric and psychological therapy, the worker had only sustained mild gains. In the report, Dr. Melnyk indicated the worker had reached maximum medical recovery. She noted it had been at least 10 years since the injury and the worker had not been able to return to work as a result of pain and psychologically based symptoms.
In my view, the balance of the evidence as set out above suggests that while the worker experienced long-standing problems with pre-accident anxiety, the anxiety symptoms were controlled with medication at the time of the accident. I find the balance of the evidence further establishes the worker’s anxiety increased as the result of pain, physical limitations and injury-related financial concerns in 2012. While the worker’s anxiety improved in 2013 following psychological treatment, he experienced further worsening of the anxiety condition in 2014 following his first low back surgery. I also find the worker’s anxiety remained exacerbated in 2018 as the result of his persistent low back pain following the failed low back surgeries the loss of his job and the reduction of his income in 2018. I find it significant that both Dr. Smith and Dr. Svihra, who assessed the worker through the WSIB Low Back Specialty Clinic, endorsed the worker’s anxiety disorder as an occupational diagnosis. In addition, the worker was diagnosed with a somatic symptom disorder that was not present prior to the work-related injury. Ms. Radan, who treated the worker for anxiety, related the worker’s persistent anxiety to the impending implantation of a spinal cord stimulator and stress related to his reduction in income. Dr. Mollon indicated the worker’s anxiety disorder was likely to remain the same. Dr. Melnyk noted that while the worker had improved with treatment and listed the panic and anxiety disorders as resolving, she also listed somatic symptom disorder as unchanged and stated the worker had reached maximum medical recovery.
In conclusion, I find the worker suffered a work-related low back injury in 2011 that resulted in unsuccessful low back surgeries in 2014 and 2015, chronic pain and the implantation of a spinal cord stimulator. Within a five-year period following the accident and the subsequent back surgeries, the worker developed an exacerbation of his anxiety disorder and somatic symptom disorder that the balance of the medical evidence related to his permanent low back impairment and socioeconomic factors including the loss of his job and the reduction in his income. Therefore, I find it more probable than not that the work-related low back impairment and the non-medical socioeconomic factors including the loss of his job and the reduction in income contributed significantly to the worker’s psychological condition. Given the length of time the exacerbated psychological condition has persisted, I find the worker’s impairment is permanent. As such, he is entitled to a non-economic loss (NEL) determination.
CONCLUSION
I conclude the worker has entitlement to a psychotraumatic disability and is entitled to a NEL determination.
The worker’s objection is allowed.
DATED November 18, 2021
Appeals Resolution Officer
Appeals Services Division