WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2408/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2408/08 BEFORE: J. Dimovski: Vice-Chair HEARING: November 14, 2008 at Toronto Oral DATE OF DECISION: June 18, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1477 DECISION(S) UNDER APPEAL: WSIB ARO decision dated October 31, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Ms. M. Zare, Paralegal Did not participate Mr. A. Tahir, Punjabi language Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2408/08 REASONS (i) Issue [1] This now 42 year-old former machine operator appeals an Appeals Resolution Officer (ARO) decision dated October 31, That decision denied the worker initial entitlement to benefits under the Board s psychotraumatic disability policy arising from compensable injuries incurred from February, [2] Thus, the issue in dispute is: Whether the worker has initial entitlement to psychotraumatic disability benefits. [3] The worker now brings this issue in dispute to the Tribunal for a final decision. (ii) Background [4] I have not attempted to refer to all the evidence presented, but have reviewed it and considered it in its entirety. In order to understand the context to this appeal, Decision No. 2006/05 provides useful background information: [2] The facts contained in this section are, generally speaking, not contested and the Vice- Chair relied upon them in reaching his conclusions in this matter. [3] On December 2, 1997 (Claim #1) the worker sustained a left elbow epicondylitis injury while performing repetitive work with the accident employer. The Board paid loss of earnings benefits as a result of the injury. The worker subsequently returned to modified duties. [4] The worker, while performing modified duties, reported injuries to his right elbow and shoulder. The injuries were diagnosed as tendonitis or epicondylitis of the right elbow and shoulder. The accident date was February 17, 1999 (Claim #2). The Board accepted and paid LOE benefits for these injuries. [5] The worker returned to modified work and claimed a recurrence of his right elbow and shoulder problems on January 5, The worker was terminated by the employer on March 10, 2000 on the basis that the worker was capable of performing his regular duties as of that date. The Board agreed with the employer and LOE benefits ceased on March [6] The worker appealed and the ARO granted LOE benefits from January 5, 2000 to March 1, 2000 as she found the worker was totally disabled. The ARO also granted the worker LOE benefits subsequent to March 2000 based on a suitable employment or business (SEB) without training. The ARO denied the worker entitlement to benefits for CPD. [7] In October 2000 the worker was granted a 9% non-economic loss (NEL) award for impairment of the right elbow and shoulder. [8] The worker received employment benefits for one year and he subsequently worked for one year as a security guard. The worker quit the security guard position due to pain related to his compensable injuries. [9] In June 2003 the worker began a labour market re-entry (LMR) program sponsored by the Board. The goal was to attain the recommended SEB of a cashier in a self-service gas bar after English as a second language training. The worker completed part of the program and a training position was found for him in a gas bar. The worker reported that

3 Page: 2 Decision No. 2408/08 he was unable to perform the physical duties of the position due to pain and the Board terminated the program due to non-cooperation. [5] Decision No. 2006/05 (released on March 2, 2006) denied the worker s initial entitlement to benefits under the Board s chronic pain disability (CPD) policy. After considering all the evidence, the Vice-Chair in Decision No. 2006/05, denied the worker initial entitlement to CPD benefits, on the basis that his pain complaints [were] predominantly attributable to organic causes both compensable and non-compensable. [6] In reviewing the worker s injuries, Decision No. 2006/05 provided the following: that the worker had left lateral epicondylitis and right elbow and shoulder injuries were the result of tendonitis/epicondylitis (see, paragraph 40) that the numbness and tingling in both the worker s hands were due to non-compensable carpal tunnel syndrome (see, paragraph 41) that worker s right neck pain that radiates to the right and left shoulder and arm were due to non-compensable degenerative condition of his cervical spine (see, paragraph 43 and 46), that the worker s neck symptoms were investigated for the first time in July, [7] The Vice-Chair wrote at paragraph 44: The worker s pain is predominantly related to organic causes as outlined earlier in this decision and the worker has been correctly compensated according to the Board s policy in regard to organic injuries. The worker s other complaints (neck, shoulders, arms and hands) are related to non-compensable organic problems. [8] In September 2006, the worker claimed initial entitlement to benefits under the Board s psychotraumatic disability policy and a NEL assessment for his left elbow arising from him 1997 accident (Claim # 1). In a response dated September 18, 2006, the Board denied the worker s requests. [9] As noted by the ARO, the worker briefly attempted to work in 2004 as a security guard but his pain prevented him from continuing from working and he stopped working. He subsequently successfully claimed Canada Pension Plan (CPP) benefits based on chronic pain and carpal tunnel syndrome problems which developed. [10] In his October 31, 2007 decision, the ARO denied the worker s entitlement to pyschotraumatic benefits but determined that the worker had a permanent impairment of his left elbow and ordered a NEL assessment. As a result of a NEL assessment conducted in January 2008, the worker received a 6% NEL award in relation to his left elbow permanent impairment. (iii) Law and policy [11] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. Since the worker s claim for psychotraumatic disability benefits arose from Claim #2 or his 1999 accident, the WSIA is the applicable legislation for this appeal.

4 Page: 3 Decision No. 2408/08 [12] Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. Of particular relevance is Operational Policy Manual (OPM) Document # (Published: 15 March 2005) which provides the following entitlement criteria: Entitlement for 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. As an indirect result of a physical injury - emotional reaction to the accident or injury - severe physical disability, 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. (iv) Submissions [13] Ms. Zare acknowledged, as decided in Decision No. 2006/05, that there were noncompensable conditions which contributed to the worker s pain condition but that the preponderance of evidence supported that the development of the worker s right elbow condition, in 1999, still materially contributed to his onset of depression. [14] Relying on the worker s testimony, and medical reports from Drs. J.H. Ennis (psychiatry), S. Sharma (psychiatry) and K. Khan, the worker s family physician, Ms Zare argued the pain in the worker s right elbow contributed to the worker s poor self-image, financial stress, as well as his enjoyment and his ability to participate in activities of daily living. As such, she argued that the preponderance of evidence showed his depression to be related to his extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to his work injury. (v) Analysis [15] After applying the applicable legislation and relevant Board policy, and after weighing all the evidence and Ms. Zare s submissions, I allow the worker s initial entitlement for psychotraumatic benefits for the following reasons. [16] In his report dated July 7, 2003, Dr. Ennis diagnosed the worker with a pain disorder associated with depression arising from the worker s compensable injuries. At the time, Dr. Ennis recommend the worker s participation in a pain management program. Similarly, in his report dated October 8, 2003, Dr. S. Sharma outlined his DSM-IV diagnosis as:

5 Page: 4 Decision No. 2408/08 Axis I - Depression secondary to medical condition Axis II - Deferred Axis III - Work-related Injuries Axis IV- Dispute with W.S.I.B Financial difficulties Axis V- Current GAF score is no more than 60 [17] The worker s representative argued that while the worker had pain due to noncompensable pain complaint, the preponderance of evidence clearly supported that the pain caused by his compensable injuries materially contributed to the development of the worker s depression. Accordingly, she argued the worker qualified for initial entitlement under the Board s psychotraumatic disability policy. [18] In support of her position, Ms. Zare reviewed reports from Dr. Ennis, dated July 9, 2003 and February 7, 2005, and Dr. Sharma s reports dated October 8, 2003 and December 18, 2007, which supported that the worker s work-related pain contributed to the worker s depression. In particular, she argued that the worker s pain from his 1999 accident significantly contributed to his depression. These reports reflected Dr. Khan s position that the worker s depression was due to his pain. In his testimony, the worker testified that his depression developed almost a year and a half after his 1999 accident. [19] If I accept Ms. Zare s approach, from a chronological perceptive, the medical record, supports that the development or re-emergence of the worker s non-compensable neck pain preceded the onset of the depressive symptoms the worker described to Dr. Ennis to support it was in fact the significant contributing injury or source of pain which contributed to the worker s depression. Accordingly, if the worker s non-compensable neck pain caused the onset of his depression than it is not compensable. [20] Ms. Zare, however, relied on medical opinion to support her submission that the worker s 1999 injury materially contributed to the worker s onset of depression. [21] In his report dated December 18, 2007, Dr. S. Sharma (psychiatrist), who began treating the worker for depression from October 2003, in response to questions posed by Ms. Zare, opined that chronic pain caused the worker s depression. Among other things, Dr. Sharma noted that about the time of the worker s LMR program he started to worry about his future and developed depressive symptoms which included anxiety, spontaneous crying and loss of confidence and he lost the ability to concentrate and enjoy pleasurable activities. At the end of his report, Dr. Sharma was asked directly for an opinion on causation, the question and Dr. Sharma s answer appeared as follows: Q4 R4 In your opinion, was the right shoulder/elbow injury of February 1999 a significant contributing factor to the development of [the worker s] psychological condition? Please explain. The main contributing factor to [the worker s] psychological condition is the chronic pain and his lack of ability to function normally. His chronic pain is in his right shoulder and elbow as his (sic) left elbow.

6 Page: 5 Decision No. 2408/08 [22] A review of the worker s pain complaints over the years is much more complex than that which was understood by Dr. Sharma and which formed the basis of his opinion on causation. Prior to his 1997 injury, as corroborated by Dr. Khan s clinical notes, the worker complained about pain in the early and mid-1990s in his neck due to a non-compensable motor vehicle accident and other areas including his elbows. The worker testified that his non-compensable neck complaints completely resolved prior to his 1997 injury. Additionally, the worker developed non-compensable carpal tunnel syndrome and his history of pain complaint is inconsistent. [23] It is the worker s argument that his right elbow and shoulder condition significantly contributed to the development of his depression, which the worker stated began two years prior to Dr. Ennis July 2003 report. Such an argument attempts to parse out pain associated with one area from the continuum of pain the record supports as recorded from 1997 and the pain that the worker may have had prior to 1997 and the non-compensable sources of pain the worker developed subsequent to his 1999 injury. It also attempts to attribute the worker s depression to compensable sources of pain as opposed to non-compensable sources of pain. [24] In my view, while the worker s onset of depression occurred when his non-compensable neck condition had become a significant issue as it had been prior to his 1997 accident, his depression also coincided with his compensable difficulties and LMR program. I find that the socioeconomic factors and prolonged disability from the compensable condition led to the worker s psychotraumatic disability. [25] In my view, the medical opinion on record does support the worker s compensable sources of pain likely was at least one of the significant contributing factors leading to his depression. The worker relied on reports produced by Dr. J.H. Ennis (psychiatry) from July While Dr. Ennis reports did not fully appreciate the worker s history of complaints nonetheless I find the worker s compensable conditions were significant in the onset of the worker s depression. In his 2005 report, Dr. Ennis related the worker s primary complaint of pain to his right sided neck pain radiating down into the right shoulder, down the right arm and to the elbow. While Dr. Ennis considered all the worker s complaints compensable which is not the case, it is clear that both the worker s compensable and non-compensable conditions led to the worker s depression. [26] Dr. Khan in his reports dated March 29, 2004 and November 15, 2004 related the worker s pain, in his compensable and non-compensable areas of injury, to the development of his depression. Ms. Zare argued that while the worker s non-compensable injuries contributed to the worker s depression, the worker s right elbow and shoulder injury, also contributed to the worker s depression and the pain could not be parsed or divided between compensable and noncompensable. [27] I agree that the worker s compensable conditions need not be the sole contributing factor to the worker s depression. Rather the compensable condition need only be a significant contributing factor to the worker s depression. I find the worker s compensable sources of pain from his 1999 accident, as supported by the preponderance of medical opinion on file, likely contributed to his depression. Accordingly, the worker has entitlement to benefits under the psychotraumatic policy for depression on the basis that it was indirectly caused by the worker s 1999 compensable physical injuries.

7 Page: 6 Decision No. 2408/08 DISPOSITION [28] The appeal is allowed. DATED: June 18, 2009 SIGNED: J. Dimovski