workplace safety and insurance appeals tribunalwsiat.on.ca/decisions/2016/417 15 i.pdf · date of...

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle

Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étage

Toronto ON M5G 2P2 Toronto ON M5G 2P2

WORKPLACE SAFETY AND INSURANCE

APPEALS TRIBUNAL

DECISION NO. 417/15I

BEFORE: W. Sutton: Vice-Chair

HEARING: February 27, 2015 at Toronto

Oral

Post-hearing activity completed on June 12, 2015

DATE OF DECISION: January 11, 2016

NEUTRAL CITATION: 2016 ONWSIAT 70

DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) A, Clark, dated

December 10, 2009; ARO P. Luck, dated July 5, 2011, and the

Vice President, Appeals Services Division, S. Todorovic, dated

November 17, 2014, which deemed, as final, the following

decisions of the Case Manager (CM) dated May 31, 2013;

September 25, 2013; April 7, 2014; August 19, 2014 and

September 3, 2014, and the decision of the NEL Clinical

Specialist, dated June 10, 2014

APPEARANCES:

For the worker: L.J. Dillon, Lawyer

For the employer: Not participating

Interpreter: S. Puacha, in the Serbian language

Decision No. 417/15I

REASONS

(i) Introduction

[1] The worker appeals three decisions of the Workplace Safety and Insurance Board

(Board). In a decision of December 10, 2009, the ARO concluded that the worker did not have

entitlement, including a finding of permanent impairment, for the legs. The ARO allowed

ongoing entitlement, including a Non-Economic Loss (NEL) assessment of the low back. As

well, the ARO directed that two of the worker’s later claims for recurrence injuries of the low

back with accident dates of February 1, and 2, 2007, (allowed as a single claim), and on

July 19, 2007, be amalgamated into the compensable low back claim with an accident date of

September 29, 2003. The ARO directed the Case Manager to review the worker’s entitlement to

Loss of Earnings (LOE) benefits from December 1, 2003, noting that the worker was employed

part-time, and to determine whether the accident employer was able to provide work within the

worker’s restrictions. The ARO rendered this decision following an oral hearing.

[2] Subsequent to the ARO’s decision, on February 3, 2010, the Case Manager (CM) denied

the worker’s entitlement to LOE benefits from August 29, 2008 to November 7, 2008. Full LOE

benefits were allowed from November 7, 2008 to February 2, 2009; partial LOE benefits were

allowed from February 2, 2009 to February 5, 2010, and full LOE benefits were granted from

February 6, 2010 to the date of the worker’s Labour Market Re-Entry (LMR) program

assessment.

[3] On April 14, 2010, the worker was granted an 18% NEL award for the low back.

[4] In the second ARO decision of July 5, 2011, it was concluded that the worker did not

have entitlement for the neck and left shoulder and that the quantum of her NEL award of 18%

for the low back was appropriate. The ARO also concluded that the worker did not have

entitlement to LOE benefits from November 16, 2004 to December 2, 2004, as at that time she

was on short term disability benefits (STD) and there was insufficient medical evidence to

support the finding that worker’s lost time was work-related. The ARO’s decision was rendered

following an oral hearing.

[5] In an ARO decision dated May 6, 2013, which is not before me in this appeal, the worker

was granted entitlement for her psychological condition. The ARO returned this matter to the

Board’s operating area to determine the date of the worker’s maximum medical recovery

(MMR). The ARO reached this decision based on the written record, without an oral hearing.

[6] On June 10, 2014, the worker was granted a 10% NEL award for psychotraumatic

disability with an MMR date of February 10, 2014. Combined with the NEL award of 18% for

the low back, the worker’s whole person NEL award totaled 26%.

[7] On November 17, 2014, in response to the request of the worker’s representative, the

Vice President of the Appeals Services Division of the Board deemed several decisions of the

CM to be final decisions of the Board. These included:

That the worker remained partially impaired and capable of participating in her Work

Transition (WT, formerly LMR) plan as of May 2013. (decision dated May 31, 2013)

That the worker was employable and that her WT could resume once she had completed

treatment on February 10, 2014. (decision dated September 25, 2013)

Page: 2 Decision No. 417/15I

That reactivation of the WT plan in April 2014 to complete the suitable occupation (SO) of

Light Assembly was appropriate. (decision dated April 7, 2014)

The quantum of the 26% NEL award, which was increased from 18% to reflect the

worker’s psychological impairment of 10%, was appropriate. (decision dated

June 10, 2014)

Denial of entitlement to pancreatitis. (decision dated August 19, 2014)

Determination that the SO of Light Assembly was appropriate and that the worker the

worker was partially disabled and capable of working, and that her partial LOE benefits

were appropriately locked-in effective September 1, 2014 at $128.53 per week. (decision

dated September 3, 2014)

(ii) Preliminary matters

[8] At the commencement of the hearing, the Hearing Ready Letter of January 28, 2015 was

discussed. It was noted that the Tribunal’s Medical Liaison Office had reviewed the Case Record

and recommended that the issue of the worker’s entitlement to pancreatitis be referred to a

Tribunal Assessor. It was determined that a further opinion from a Tribunal Assessor on this

issue would be pursued. As such, this decision proceeds on an interim basis and will be followed

by the Assessor’s review. On receipt of that opinion, and subject to any final submissions the

worker’s representative may wish to provide, a final decision will be issued in respect of the

worker’s entitlement to pancreatitis.

[9] Also noted was January 28, 2015 Tribunal correspondence addressed to the worker’s

representative inquiring as to whether the worker had undergone endoscopic retrograde

cholangio pancreatography (ERCP) and if so, was there an available report. The worker’s

representative advised that he was unable to obtain any reporting in this regard.

(iii) Issues

[10] The issues under appeal are as follow:

1. Permanent impairment or ongoing entitlement for the legs as the result of an

accident on September 29, 2003.

2. Entitlement for the neck and left shoulder as a result of an accident on

September 29, 2003.

3. Entitlement to LOE benefits from November 16, 2004 to December 2, 2004.

4. Objection to the 18% quantum for the low back awarded on April 14, 2010.

5. Objection to the quantum of the worker’s NEL award of 10% for psychotraumatic

disability granted June 10, 2014.

6. Objection to the finding of partial impairment and the worker’s ability to participate

in Work Transition (WT, formerly LMR) services commencing in June 2014.

7. Objection to the finding that the worker was employable and able to resume WT

services following treatment.

8. Objection to the resumption of WT services to complete training as a Light

Assembly.


9. Objection to the finding that the SO of Light Assembly was suitable.

10. Objection to LOE benefits established at $128.53 per week from the date of the

worker’s final LOE review lock-in on September 1, 2014 to the age of 65 years.

11. Entitlement for pancreatitis (decision deferred pending review by a Tribunal

Medical Assessor, followed by a final decision on this issue).

(iv) Background

[11] The following are the basic facts.

[12] In November 1999, the now 60-year-old worker started as a machine helper with the

accident employer, a meat processing company. On September 29, 2003, the worker injured her

lower legs and back when she was trying to move a 300 kilogram cart containing salamis. The

wheels caught and the cart fell, knocking the worker to the floor and falling on her legs. She was

given a diagnosis of contusions to the right and left lower legs and the lumbar spine. The worker

was granted LOE benefits from October 3, 2003 to December 1, 2003, when she returned to

modified work at full wage.

[13] On January 7, 2004, the Board allowed Second Injury Enhancement Fund (SIEF) costs of

50% to the accident employer based on the worker’s pre-existing degenerative disc disease

(DDD) of the lumbar spine.

[14] The worker suffered further injuries involving her low back in 2007. On

February 1, 2007, she reported low back, left leg and left arm pain after carrying a heavy pain of

water. On February 2, the worker experienced low back pain after hanging two kilogram salamis.

The worker further reported low back pain on July 19, 2007, while working on the assembly line.

As previously noted, the ARO in the decision of December 10, 2009 determined that the 2007

injuries were recurrences of the September 2003 injuries and the claims were amalgamated.

[15] The worker continued to work with the accident employer until February 2010

performing various modified duties. There were, as well, a number of periods in which the

worker received STD benefits for matters the Board found to be unrelated. This included the

period of November 16, to December 2, 2004.

[16] In February 2010, it was determined that the accident employer could no longer

accommodate the worker in employment that was sustainable and within her restrictions. As

such, the worker was referred to LMR services in March 2010. It was also determined that,

pursuant to paragraph 44(2.1)(b) of the Workplace Safety and Insurance Act, 1997 (WSIA), the

final review of the worker’s LOE benefits would be deferred while she was participating in the

LMR program.

[17] In preparation for the worker’s participation in LMR services, a Psychovocational

Assessment performed on March 17, 2010. It was concluded that the worker was not suitable for

retraining due to her lack of English competency, her compensable and noncompensable

conditions and her psychological health. As such, the LMR program was closed. It was further

concluded that the worker would benefit from psychological treatment on an aggravation basis at

a Psychological Trauma Program (PTP) supported by the Board. It was expected that the worker

could resume the WT program following treatment in the suitable employment or business

(SEB) of Cashier.


[18] Following treatment in September 2012, the worker was referred to WT services. At that

time, the Case Manager recommended that the worker apply for Canada Pension Plan (CPP)

disability benefits. It was decided that the suitable occupation (SO, formerly SEB) of Retail

Salespersons and Sales Clerks was suitable for the worker. The worker objected to this, but

agreed to cooperate until the matter was resolved. In the course of the program, the worker was

reported to be enjoying it, but it was noted that she had suffered a series of panic attacks.

[19] The WT plan was amended on January 23, 2013 and a new SO of Light Assembly was

chosen for the worker. The WT program was again closed on October 13, 2013 as the worker

was participating in a Board Function and Pain Specialty Program (FPP). The WT program was

reactivated in June 2014, but was closed on August 29, 2014. The Board determined that the

worker was employable in the SO at an entry level wage of $11.00. On September 4, 2014, the

CM concluded that the worker’s LOE benefits were to be locked in, effective September 1, 2014

to the age of 65 years, based the wage of $11.00 per hour over a 40 hour work week, resulting in

weekly benefits of $128.53.

(v) Law and policy

[20] Since the worker was injured in September 2003, the WSIA is applicable to this appeal.

All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

[21] Section 13(1) of the WSIA provides:

A worker who sustains a personal injury by accident arising out of and in the course of

his or her employment is entitled to benefits under the insurance plan.

[22] Psychological impairments are included in the definition of “impairment” in section 2(1)

of the WSIA:

“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.

[23] Section 46(1) of the WSIA, provides that if a worker’s injury results in permanent

impairment, the worker is entitled to compensation for non-economic loss.

[24] “Permanent impairment” means impairment that continues to exist after the worker

reaches MMR.

[25] Legislation and Board policy provide that the degree of a worker’s permanent impairment

is determined in accordance with the prescribed rating schedule or criteria, any medical

assessments, and having regard to the health information on file. The prescribed rating schedule

for most impairments is the American Medical Association’s Guides to the Evaluation of

Permanent Impairment, 3rd edition (revised) (the AMA Guides). The Board has adopted specific

rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and

other conditions.

[26] Tribunal jurisprudence applies the test of significant contribution to questions of

causation. A significant contributing factor is one of considerable effect or importance. It need

not be the sole contributing factor. See, for example, Decision No. 280.

[27] The standard of proof in workers’ compensation proceedings is the balance of

probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of doubt is resolved in


favour of the claimant where it is impracticable to decide an issue because the evidence for and

against the issue is approximately equal in weight.

[28] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages,

Revision No. 8, would apply to the subject matter of this appeal:

Policy Package No. 1, “Initial Entitlement,”

Policy Package No. 31, “Secondary or Non-Work-Related Conditions,”

Policy Package No. 61, “NEL Entitlement,”

Policy Package No. 63, “NEL Quantum – decisions as July 2, 2008,” and

Policy Package No. 300, “Decision Making/Benefit of Doubt/Merits and Justice.”

[29] The Board further provided the following policy packages, Revision No. 9:

Policy Package No. 8, “NEL Quantum for Mental Disorders,”

Policy Package No. 38, “Recurrences,”

Policy Package No. 61, “NEL Entitlement – decisions prior to March 30, 2011,”

Policy Package No. 63, “NEL Quantum – decisions from July 2, 2008 to March 29, 2011,”

Policy Package No. 72, “Worker Co-operation Obligations,”

Policy Package No. 216, “Final LOE Review – benefits as of February 15, 2013,”

Policy Package No. 231, “Work Transition & Suitable Occupation,”

Policy Package No. 235, “Work Reintegration Principles, Concepts and Definitions,”

Policy Package No. 241, “Initial Entitlement,”

Policy Package No. 251, “Secondary Entitlement – decisions prior to February 15, 2013,”

Policy Package No. 263, “NEL Quantum,” and

Policy Package No. 300, “Decision Making/Benefit of Doubt/Merits and Justice.”

[30] I have considered these policies as necessary in deciding the issues in this appeal.

(vi) Relevant medical and documentary evidence

[31] While I have reviewed the worker’s file in its entirety, I note, in particular, the following

medical and documentary reporting:

June 17, 1996: Cardiologist, Dr. Drobac, noted the worker’s experience with heart

palpitations and provided a diagnosis of episodes of paroxysmal atrial tachycardia.

March 17, 2003: Dr. Drobac reported that the worker had successfully undergone ablation

therapy and her cardiac condition could be managed with medication.

July 29, 2003: The worker attended the emergency room with complaints of atypical chest

pain, initially thought to be anxiety related. It was subsequently determined that the worker

had likely suffered from gastroesophageal reflux.


September 3, 2003: An abdominal ultrasound identified no abnormalities in the worker’s

pancreas.

October 4, 2003: A Form 8 Health Professional’s Report completed by Dr. Vujnovic, the

worker’s general practitioner, stated that that the worker had injured her upper and lower

back, legs and feet as a result of the September 29, 2003 accident. Sprains and contusions

were noted.

October 7, 2003: X-rays of the worker’s legs and feet showed no significant abnormalities.

October 16, 2003: A chiropractor’s Form 8 and accompanying correspondence provided a

diagnosis of lower leg contusion and lumbar strain.

October 17, 2003: The worker attended the emergency room and anxiety was the

provisional diagnosis, with work and home stressors noted.

October 24, 2003: The worker’s Form 6 Report of Injury/Disease indicated that while

pulling the cart on September 29, 2003, “ ... it got stuck and fell over my lower legs and I

fell on my back. The floor was made of concrete ... I felt pain on my legs immediately, and

on my back the day after the injury.”

November 11, 2003: The worker’s Progress Report stated that her back and leg pain was

ongoing.

November 14, 2003: Dr. Vujnovic noted the worker’s continued complaints of leg and

back pain and stated that the severity of the worker’s injury was delaying her recovery. The

worker’s Progress Report indicated “ongoing back and leg pains.”

December 9, 2003: The worker attended a Regional Evaluation Centre (REC) on referral

from the Board regarding “lumbar strain/contusions. Soft tissue injury bilat legs.” After

taking a history and examining the worker, the REC assessors concluded:

Lumbar strain/contusion

[The worker] should make a complete recovery with respect to this injury within the next

six to eight weeks.

Soft tissue injury to bilateral lower legs. This problem is now resolved.

No medical restrictions were recommended. It was considered that the worker would have

low back discomfort for six to eight weeks with prolonged standing and repetitive bending.

December 12, 2003: On a Functional Abilities Form (FAF), Dr. Vujnovic advised that the

worker could return to modified hours, with the following restrictions: walking short

distances only; standing more than 15 minutes; sitting no more than 15 minutes; no lifting

or ladder climbing; stair climbing a short flight only; no bending, twisting or repetitive

movement of the back and legs; no above shoulder activity, and avoid cold environments.

The worker’s Progress Report noted: “Lower back pain, and right lower leg pain.”

January 6, 2004: In a report to Dr. Vujnovic, Dr. Charendoff, orthopaedic surgeon, noted

the worker’s continued experience with low back pain and referred pain to both lower

extremities, worse on the right. He diagnosed the worker with mechanical low back pain

and recommended conservative management.


February 28, 2004: Dr. Vujnovic advised that the worker could return to full time hours

with ongoing, but improved restrictions for the back and legs.

March 9, 2004: Psychiatrist, Dr. Milenkovic assessed the worker in relation to her heart

palpitations and post-traumatic stress disorder as a result of prior civil unrest in her

homeland. The worker reported a number of panic attacks commencing in July 2003. She

noted the worker’s September 2003 injury and the worker’s low mood “due to her job

problems and her father’s health problem.” Dr. Milenkovic diagnosed panic disorder due to

PTSD and queried generalized anxiety disorder with panic attacks and anxiety and

depressive disorders.

March 19, 2004: The worker attended the emergency room complaining of anxiety and was

diagnosed as suffering a panic attack.

April 14, 2004: Having noted the worker’s atypical chest pain and some symptoms of

depression, cardiologist, Dr. Chessex, ruled out any significant heart disease at that time.

May 4, 2004: Physiatrist, Dr. Prutis, assessed the worker noting that the worker’s

accident-related leg pain had resolved, and her current leg pain was due to radiation of pain

from her lower back. Dr. Prutis concluded that the worker had sustained severe myofascial

strain and contusion to both lower extremities and that her clinical presentation was

suggestive of lumbar disc herniation.

May 29, 2004 through August 21, 2004: In his FAF reports, Dr. Vujnovic noted the

worker’s ongoing pain in her back, lower legs, ankles and feet.

September 9, 2004: Emergency room reporting indicated that the worker had attended

regarding chest pain. Low back pain, anxiety and somatization were noted and a

psychiatric referral was recommended.

September 18, 2004: Dr. Vujnovic’s FAF reported pain in the worker’s lower legs, ankles,

feet and back.

November 15 to December 8, 2004: This is in the period when the worker claims LOE

benefits. The clinical notes of Dr. Gajic, general practitioner, in this period refer to the

worker complaints anxiety, depression and epigastric pain.

November 11, 2004: Cardiologist, Dr. Drobac, assessed the worker for noncompensable

reasons. In doing so, he noted that the worker was “ ... very weepy and stressed today [due

to her father’s current illness]. She obviously has had a great deal of difficulty with stress

and anxiety in her life as well.”

November 28, 2004: Emergency room records indicate the worker attended due to diarrhea.

Noted were complaints of epigastric pain and depression.

In an undated report, Dr. Vujnovic advised that the worker “has been under my care due to

illness and unable to work from November 16, 2004 to December 20, 2004.”

January 4, 2005: Dr. Drobac reported that with medication, the worker’s “ ... chest pains

have disappeared” and her palpitations occurred now two to three times daily and lasted for

an hour. “The feeling is that these palpitations are distinctly different than what she had

before.” He queried mild sinus tachycardia due to the worker’s noted hypertension.


August 29, 2006: X-rays of the left shoulder were normal.

November 14, 2006: X-rays of the left humerus were negative for any abnormalities.

December 7, 2006 and February 2, 2007: Dr. Gajic reported the worker was under her care

for low back pain and was restricted from heavy lifting.

February 2, 2007: Dr. Gajic reported the worker’s February 1, 2007 lifting incident and

provided a diagnosis of lumbosacral strain and decreased range of motion (ROM) in the

left shoulder secondary to pain. Her chart notes from February 2, 2007 through

March 27, 2007 reflect this finding, along with “very sharp shoulder pain (February 3) and

leg pain (March 13, 2007). X-rays of the lumbosacral spine were normal.

March 13, 2007: An x-ray of the left shoulder was normal.

March 14, 2007: An ultrasound of the worker’s shoulders was normal.

April 2, 2007: An STD form completed by Dr. Gajic to the worker’s insurer indicated low

back, left arm and shoulder, and leg strain since February 2007.

May 13, 2007: Dr. Getahun, a physician at a fracture clinic, reported that the worker had

fallen the previous day and suffered an undisplaced fracture of the right fibia, confirmed by

x-rays.

July 17, 2007: The worker attended the emergency room with complaints of back and left

leg pain.

July 26, 2007: Orthopaedic surgeon, Dr. Wood, reported seeing the worker about

increasing pain and limping of the left leg with balance problems that had developed in the

previous two years. The worker’s complaints primarily involved the low back and left foot.

July 23, 2007: Dr. Gajic advised that the worker had suffered a further lumbar strain on

July 19, 2007 due to performing heavier duties than her restrictions allowed. Dr. Gajic’s

clinical notes indicated reduced ROM in the worker’s cervical spine.

August 9, 2007: In a discussion with the Claims Adjudicator (CA, later, CM), the worker

was reported to state that “she claims never recovered was trauma to leg” following the

September 2003 accident, and that she received Employment Insurance benefits for a short

period she was off work due to her leg pain.

October 7, 2007: The CA reported that the worker had broken her leg at home in

May 2007.

November 5, 2007: In a report addressed to the worker’s psychiatrist, Dr. Mesaros,

Dr. Kirwin, a physiatrist, reported the worker’s complaints in order of severity as including

“1, low middle back and left leg pain 2, neck left shoulder and left arm pain and 3,

headache at all these complaints occurred immediately post accident ... at her workplace.”

Dr. Kirwin assessed the worker with mechanical cervical, thoracic and lumbar pain with

left rotator cuff tendonitis and cervicogenic headaches, non-specific left ankle, foot and

knee arthralgia, and left leg and left arm numbness, weakness and pain.


December 20, 2007: Dr. Kirwin reported that a bone scan identified some degenerative

change “which is a component of her complaints.” An ultrasound of the shoulders was

unremarkable. There were no changes in the worker’s symptoms.

January 29, 2008: Dr. Kirwin reported that that EMG studies were normal for the worker’s

left arm and her legs. An MRI was arranged relating to the worker’s ongoing cervical and

lumbar spine complaints.

April 22, 2008: Dr. Kirwin advised that the worker’s left leg and low back pain had

increased due to heavy work lifting beyond her restrictions. Her left leg was giving way

and was causing her to fall. The worker stated that since her accident, she had experienced

falls twice per month, but was now falling five to six times each month. Dr. Kirwin stated:

Unfortunately, since my last assessment, [the worker’s] low back and leg pain in

particular has increased on severity due to the heavy lifting as apparently her work is [sic]

required her to do activities beyond the restrictions outline by her family doctor

previously ...

May 27, 2008: Dr. Wood reported MRI findings of “light impingement of the exiting L5

nerve root on the left.” There was no need for surgical intervention.

June 24, 2008: Dr. Kirwin reported the worker’s complaint of nonspecific soft tissue strains

of the right leg and iliac crest issues due to “overuse of the right leg because of ongoing left

leg pain which is her primary complaint.” The worker also experienced pain radiating into

the left leg from her low back. She appeared to have a combination of left knee

degenerative changes and chronic regional pain syndrome (CRPS) type 1. X-rays of the

worker’s knees were unremarkable. The worker’s complaint of mid back and neck pain as

well as left arm pain and headaches were unchanged for previous assessment. The worker

was to be referred to an anaesthesiologist for consideration of injections addressing her left

leg regional pain syndrome.

June 27, 2008: The CA reported that the accident employer had received reports from the

worker complaining “whole body pain mostly left leg pain, left foot and low back issues. ...

The CA reviewed clinical records noting “ ... all leg issue complaints come in and around

time IW fell at home and fx ankle leg.”

September 8, 2008: Physiatrist, Dr. Kirwin noted that despite the worker’s recent lay-off

from work due to problems in the plant, her symptoms, and in particular her pain, remained

unchanged.

November 27, 2008: Dr. Kirwin reported that the worker has ongoing low back, neck, left

arm and left leg pain that remained unchanged. The worker was also experiencing

psychological stress as a result of her lay-off from work, which might account for her

nonspecific symptoms involving swallowing, itchiness, swelling in the hands and feet,

tiredness and feeling unwell, which could not be objectively explained.

January 13, 2009: In a report to Dr. Kirwin, anaesthesiologist, Dr. Carstoniu, assessed the

worker’s “chronic left leg pain” that was present from the knee to the foot. He reported that

in the year following her injury in September 20021, the worker’s “right leg pain had

significantly receded but left leg and back pain were no better.” The worker’s lumbar pain

1 Dr. Cartoniu’s reference to September 2002 is presumably a typographical error and should refer to 2003.


extending sometimes into the buttocks and also up to the neck, the latter occurring in

concert with anxiety. Dr. Carstoniu measured the worker’s lumbar extension at 5%.

Dr. Carstoniu noted that a “CT scan of the lumbar spine in March 2008 documented the

presence of disc protrusion at L4-5 causing left sided foraminal narrowing and

displacement of the left L5 nerve root.” Noted was decreased sensation on light touch in

the lateral edge of the left foot and in the first and second toes. Left arm pain was brought

on by physical activities using the left hand. After taking a history and examining the

worker, Dr. Carstoniu stated:

I completely agree with your diagnosis of Chronic Regional Pain Syndrome, type I

affecting [the worker’s] left leg. The history of trauma, the nature of her symptoms and

her physical findings all support this diagnosis. In addition, she has chronic back

symptoms, primarily mechanical in nature that are closely related to her leg symptoms. It

is possible that the back pain is the result of biomechanical factors such as her gait

abnormality as well as psychological stress leading to guarding. In addition, it is possible

that her documented left L5 protrusion with impingement on the exiting nerve root may

be a contributing factor despite the absence of localized signs.

On today’s examination, I could not find hard signs of focal neurological deficit,

vasomotor instability, peripheral vascular disease, inflammatory musculoskeletal disease,

malingering or drug seeking behaviour that might otherwise account for her presentation.

There is no question that psychological distress and persistent pain have become closely

linked in what is most likely a synergistic relationship.

Dr. Carstoniu recommended multidisciplinary treatment approach including medication

management and cognitive behavioural therapy to address the worker’s concurrent

psychological and pain concerns, to which, the worker agreed.

January 22, 2009 and April 16, 2009: Dr. Kirwin’s report noted that the worker’s

symptoms were unchanged.

July 10, 2009: Dr. Kirwin reported that the only change in the worker’s condition was an

increase in her lower left leg and foot pain aggravated by her work duties.

September 20 2009: In a comprehensive report addressed to the worker’s representative,

Dr. Kirwin stated:

There has been a further aggravation of [the worker’s] left leg complaint due to the

demands of her workplace [which] is unable to modify her duties. Therefore I

recommend she applied [sic] for disability as we are unlikely to achieve any control over

complaints without a modification to her work and it does not look like she will be able

to be retrained because of her lack of English and her age and no recent experience with

light work duties.

[...]

My opinion regarding the progress of [the worker’s] condition is guarded.

[...]

[The worker’s] restrictions with respect to work, include no long standing, sitting and/or

walking; no lifting greater than 2 kg; no stair and/or ladder climbing; no repetitive

holding or gripping with her left hand, also there should be limited bending, twisting

and/or repetitive movement of the neck, middle and low back. Movement of the left knee,

ankle and foot and left shoulder should be minimized. She should avoid exposure to cold.


December 1, 2009: Dr. Kirwin reported work-related aggravation of the worker’s low back,

left leg, and particularly, the left foot “due to the ongoing trauma of her work.” Also noted

were the worker’s “apparent panic attacks.”

February 23, 2010: In a report addressed to the worker’s representative, Dr. Mesaros

reported attending the worker since November 2004 regarding “symptoms of anxiety,

depression and physical illness, which all evolved following an accident at her workplace

on September 28, 2003.” She stated the following:

... [S]he was frightened, traumatized and complained of multiple pains such as: pain in

the low and mid back, pain in the left leg, severe pain in the neck, pain of the left

shoulder and left arm and instant headaches. She was on sick leave for 14 weeks with

physical injuries [and] feared possible disapproval of her supervisor and possible job loss,

which was responsible for her decision to return to work prematurely. In addition to her

physical pains, which became permanent, she promptly developed numerous psychiatric

symptoms, typical for Post-traumatic Stress Syndrome (PTSD) and Anxiety Disorder.

She suffered chest pain, insomnia, irritable mood, restlessness, difficulties breathing,

hypervigilance, startling responses and multiple fears. She was rushed to different

emergency rooms 14 times and was diagnosed with Panic Disorder. In the year 2004, she

was seen by two psychiatrists and received psychiatric care. In spite of that, her physical

pain caused by the injuries at workplace, as well as her psychiatric symptoms escalated.

Parallel to the PTSD, [the worker] became depressed, hopeless and preoccupied with her

illness.

Mental status examination in the course of treatment... was dominated by symptoms of ...

severely depressed mood, psycho motor agitation, initial insomnia, lack of energy and

interest to do things, fatigue, crying spells, sense of personal worthlessness, sense of

hopelessness and helplessness, diminished ability to think, negative thoughts, poor

concentration and poor ability to focus and complete mental tasks, indecisiveness, ...

recurrent and intrusive recollections of the traumatic event at the workplace, feeling and

acting distressed about the accident, being preoccupied with disapproval, being ridiculed

and mistreated at work by supervisors, irritability and outbursts of anger and protest,

being easily started and hypervigilant.

Dr. Mesaros reported diagnoses of Major Depressive Disorder - severe and unremitting;

Post-Traumatic Stress Disorder - chronic, and Panic Disorder without Agoraphobia. These

conditions were affected by “[p]ersistent high workplace stress over the past seven years

with multiple work-related accidents and ... [f]amily stress involving care of two ageing

parents.” The worker’s Global Assessment of Functioning (GAF) score was characterized

as “49 serious impairment in social and occupational functioning; Marginal functioning in

2009 =51-50.”

Dr. Mesaros reported that the worker’s panic attacks and chronic anxiety were gradually

brought under control by the use of medications. She went on to state:

... [The worker] suffers with a complex and prolonged co-morbid physical and

psychiatric illness in duration of at least six years. [She] sustained a serious injury at

work in September 2003, which led to numerous complications. [The worker], who was

essentially healthy until that time, perceived her workplace as unsupportive and noxious.

Regardless, whether her perception was real or distorted, the fact remains that she

became ill in response to her work environment. Current psychiatric treatment is geared

towards maintenance of existing strengths and prevention of further decline in mental

status rather than cure, which cannot be achieved. [The worker] is considered to be totally

disabled for work on a full-time and part-time basis. Vocational prognosis is poor and

[she] is not expected to be employable in the foreseeable future.


March 17, 2010: The worker underwent a Psychovocational Assessment conducted by a

psychologist in conjunction with her referral to the LMR program. Noted was the worker’s

completion of Grade 12, in her homeland and that she had completed the last four in trade

school. The worker’s English language skills “were rated as poor by the test administrator.”

The worker’s restrictions:

[a]ccording to the referral documentation [were:] “lifting, bending, carrying, walking,

pulling, pushing and sitting. More specifically, she should avoid lifting over 5lbs;

repetitive bending or twisting of the low back; prolonged sitting, standing or walking; and

stair and ladder climbing.

The assessor noted that there were adverse factors affecting the worker’s performance,

including “fatigue, anxiety, concentration difficulties, pain and level of depression ... that

may not accurately reflect her true potential on some of these measures.”

On testing, the worker’s depression, anxiety and trauma response were assessed in the

“severe” range. The assessor noted that the results from this assessment suggest that there

are psychological barriers present and, if not properly treated, they may impact on her

ability to progress with her re-training. A pain management program was also

recommended prior to participating in the LMR program. It was noted that the worker fell

in the below average range cognitively. The most salient characteristics of her personality

suggested the worker was sensitive, emotional and prone to experiencing feelings that were

upsetting. The assessor concluded:

Regarding her psychological health, the results from this assessment suggest that there

are psychological barriers present and, if not properly treated, they may impact on her

ability to progress in re-training. Attendance at a pain management program would also

be beneficial to her, as the test administrator noted several pain behaviours throughout the

session, and felt that [the worker] was particularly pain-focused. If possible, it would be

preferable for her to attend a pain management program before she proceeds with

training. Academic upgrading could be done concurrent with the pain management

program.

[...]

In general, [the worker] is not a good candidate for re-training. She should begin with a

pain management program and continue psychological treatment and her candidacy for

LMR training should be re-evaluated after approximately six months. Eventually, direct

entry or short-term retraining jobs could be considered is she was willing and able to

proceed with upgrading and retraining. Given [the worker’s] test scores, she would

require significant academic upgrading, in all areas, before proceeding with her

retraining, and she is best suited to private vocational retraining programs. She also

requires extensive ESL training to upgrade her English language skills. Her maximum

training potential, given her test scores, would be grade eight or grade nine. A certificate

from a vocational school could also be considered but jobs requiring short term training

are preferable.

However, there are several barriers present that may affect her success in the LMR plan.

Her job options are limited due to her restrictions. Additionally barriers include her

psychological issues; other injuries and non-compensable medical issues; low test scores;

poor English language skills; and her medications, which may affect her level of alertness

and concentration. As well, the number of years she has left in the workforce and for

retraining is somewhat reduced, given her age. These limitations may affect her job

options and her LMR plan. Notwithstanding, she appears sincere in her desire to work

and re-enter the work force.


Given these barriers and the psychological findings, it is likely that [the worker] is not

psychologically ready to pursue a new career path at this time. I am concerned that she

will be unsuccessful with a new job opportunity. I would suggest a re-evaluation after

approximately six months. In the interim, she should be under the care of a mental health

professional, as I am very concerned about her psychological health. Her scores for

depression, anxiety and post-traumatic stress are all very high and she was visibly upset

when asked about her emotional health. The test administrator noted that she cried during

the session. For the sake of completeness, I have provided a list of jobs that would be

considered suitable should [the worker] proceed with an LMR plan at some point in the

future, but all of these jobs listed will require some level of accommodation given her

injury and related restrictions.

In response to the relationship between the worker’s 2003 accident and its sequelae and the

worker’s current psychological condition, the assessor noted:

There appears to be a partial relationship between the development of [the worker’s] pain

disorder and mood disorder symptoms. These symptoms appear to onset after the

workplace accident but were significantly exacerbated by her termination [with the

accident employer]. There also appears to be a partial but significant relationship to her

workplace accident and her panic disorder symptoms even though there is some evidence

her symptoms preceded her accident. There is a direct relationship between the onset of

her subthreshold PTSD symptoms and her workplace accident, however, she was likely

vulnerable to this given a possible pre-existing diagnosis due to her experiences in the

war. There is no relationship between her workplace accident and her phobia of

thunderstorms.

Regarding the worker’s prognosis for a return to work, the assessors stated:

Fair for alternate work or retraining. Positive prognostic factors include her return to

work shortly after each workplace accident and her motivation to return to work.

Negative prognostic factors include her limited command of the English language,

caregiver needs for her parent and perceived level of disability.

The assessors opined that the worker had not yet reached MMR for her psychological

condition as she had “has not yet engaged in psychological treatment to address her pain

disorder and depressive symptoms.”

July 13, 2010: Commencing in June 2010, the worker attended the PTP. The Discharge

Report of July 13, 2010 provided the following:

Axis I: Pain Disorder Associated with both Psychological Factors and

General Medical Condition

Panic Disorder with Agoraphobia

Major Depressive Disorder, Single Episode, Moderate

Anxiety Disorder NOS with Symptoms of PTSD

Specific Phobia – situational type: thunder storms

Rule out: Anxiety Disorder Not Otherwise Specified – features of

posttraumatic stress disorder predating workplace accident;

unclear if currently experiencing symptoms

Axis III Chronic pain – left leg and back; Complex regional pain

syndrome; Soft-tissue injuries to the left leg; ...


... Relation Between the Accident and its Sequelae and the Current Psychological

Condition.

The workplace accident is a partial contributor to the major depressive and pain

disorders.

The workplace accident is a partial contributor to the panic disorder. There was

vulnerability related to longstanding anxiety sensitivity, and the panic may have

predated the workplace accident, which either precipitated the onset of panic

disorder or significantly exacerbated it.

The posttraumatic stress disorder predated the workplace accident related to

trauma in her country of origin. It does not appear to be exacerbated by the

workplace accident.

The workplace accident is a partial contributor to the major depressive and pain

The Discharge Report did not provide a complete DSM-IV diagnosis and it is noted that on

initial assessment the following was determined:

Axis IV: Financial problems

Not currently working

Having to care for mother who recently had a stroke

Difficulties with accident employer

Interpersonal problems with co-workers

Axis V: GAF = 55

The psychiatric assessment conducted during the PTP program also noted a GAF of 50 to

60.

On discharge, the PTP assessors concluded that the worker was capable of participating in

LMR after further treatment. There were no psychological restrictions indicated. Prognosis

for retraining and return to work was characterized as “fair.” Positive prognostic indicators

included the worker’s stable pre-accident state, her occupational functioning and her

expressed motivation to return to work. Negative factors included the worker’s chronic

pain, limited fluency in English, multiple psychosocial stresses, her older age and her

longstanding anxiety sensitivity.

The assessors also concluded that the worker had not reached MMR as she had not

received sufficient psychological treatment. Recommendations included continued

psychiatric follow-up and referral in the community to a psychologist, who spoke the

worker’s language for cognitive behavioural therapy. Referral to an individual

multi-disciplinary pain management program was also recommended, the timing of which

should be determined by the psychologist.

January 4, 2011: Psychologist, Dr. Dalton, advised the Board of his assessment of the

worker. He stated that due to the worker’s limited English and the unavailability of

psychometric measures in her native tongue, no psychological testing was performed. After

reviewing the worker’s file and conducting an interview with her, Dr. Dalton provided the

following DSM-IV diagnosis:


Axis I Pain Disorder Associated With Both Psychological Factors and a

General Medical Condition

Panic Disorder with Agoraphobia

Major Depressive Disorder, Single, Moderate

Specific Phobia

Axis II No Diagnosis

Axis III See medical file

Axis IV not working; financial strain; problems with primary support group

Axis V Current GAF: 55

Dr. Dalton noted the worker’s symptoms of sleep difficulties, increased irritability,

depressed mood and anxiety. He recommended 16 one and one half hour psychotherapy

sessions. Dr. Dalton went on to state:

It should also be noted that such factors as advanced age, perceived disability, lack of

English speaking skills, no driver’s licence and work experience limited to physical work

will likely pose significant barriers to a successful return to work.

April 7, 2012: The Board referred the worker to Dr. Palikucin-Reljin, a psychologist, for

16 sessions of cognitive behavioural therapy. The diagnosis of Chronic Pain Disorder with

Psychological Factors and General Medical Condition was provided. Following testing, the

worker was described as “severely depressed” and experiencing suicidal ideation. Barriers

were described as follows:

[The worker’s] sense of general emotional overload, and traits obsessive-compulsive,

prosecutory ideas. [She] feels that her anxiety is exacerbated in anticipation of something

bad to happen to her or to her family member.

April 24, 2012: In a report to Dr. Gajic, rheumatologist, Dr. Voorneveld ruled out any

connective tissue disorder and specifically fibromyalgia. Mild to moderate left knee

osteoarthritis was noted.

May 12, 2011: Dr. Mesaros reported the worker’s GAF as 49.

September 20, 2012: Dr. Mesaros reported rating the worker’s depression as severe, 35,

compared to a normal score of 10. Her previous rating was 40.2

October 15, 2012: In a report to the worker’s representative, Dr. Mesaros reported DSM-IV

diagnoses of:

Axis I Major Depressive Disorder – severe, unremitting

Post-Traumatic Stress Disorder – chronic, unremitting

Panic Disorder without Agoraphobia – in remission

[...]

Axis V GAF=48-49, serious impairment in social, occupational and

School functioning. Poor overall functioning, mental and physical in

2011, with persistent GAF=49; there is a lower score in 2012 due to

intermittent suicidal thoughts associated with physical pain, poor

quality of life and unremitting depression.

2 Montgomery-Asberg Depression Rating Scale.


Dr. Mesaros attributed the worker problems to the September 2003 accident. Her report

went on to state the following:

In the course of treatment, [the worker] responded to medications partially and symptoms

of Panic Disorder cleared, while the symptoms of PTSD and Major Depression persisted.

Thus was due to ongoing physical pain and physical limitations. For example, she is no

longer able to walk long distances and she is limited to her ability in climbing stairs,

sitting and standing. This contributes to her social and occupational impairment. Over the

past year, [the worker’s] hopelessness for her recovery and suicidal thoughts became

worse. She has gained weight due to social withdrawal and immobility. ... Her psychiatric

symptoms and chronic pain are mutually aggravating and perpetuating.

Dr. Mesaros described the worker at totally disabled from any type of work. She stated:

Vocational rehabilitation is not indicated because of persistent, active psychiatric

symptoms, particularly impaired cognitive functions, such as ability to concentrate,

remember and retain new material. In fact, the efforts at re-training would likely

aggravate [the worker’s] mental status. ... Psychiatric treatment for maintenance will

continue indefinitely. Vocational prognosis for [the worker] is very poor and she is not

expected to be employable in the future.

September 9, 2013: The worker was referred to the FPP. On initial assessment, it was noted

that the worker demonstrated a significant amount of pain behaviour and walked with a

limp. She appeared anxious and tearful. The worker advised that she was independent in

most of her activities of daily living (ADL), though taking longer to wash and dress, and

preparing larger meals to avoid cooking every day. She relied on friends to assist with her

housework and grocery shopping. She reported memory and concentration problems. She

seldom went out, spending most of her time at home.

The February 10, 2014 FPP Discharge Report noted the worker’s participation from

November 11, 2013 to February 10, 2014. The DSM-IV diagnosis was:

Axis I: Clinical Disorders

Pain Disorders with both Psychological Factors and General Medical

Condition (Chronic)

Major Depressive Disorder, Chronic, Moderate3

Axis II: Personality Disorders

Deferred

Axis III: Medical Conditions (as per the medical file and comprehensive assessment)

Continued recovery from injury, Coronary Artery Disease post stent

insertion, by self report

Hypertension on medication

Axis IV: Psychosocial Stressors

Financial stress, stress related to employer and WSIB, uncertainty

regarding occupational future, lack of confidence in ability to meet

WSIB expectations to re-enter the workforce

3 It is noted that on original assessment in the FPP, this was described as “moderate to severe.”


Axis V: Global Assessment of Functioning

The GAF score does not include impairment due to physical limitations

and is estimated to be 51 to 55

The assessors concluded that the worker was capable of perform activities at the

“sedentary” level. Her restrictions were identified as:

Limit stair climbing to a rare basis with the use of external support and

mini-breaks

Limit far forward reaching to a rare basis

Limit reaching to the floor or low-level work to a rare basis

Limit back extension and twisting to a rare basis

Limit squatting to floor on a rare basis

Application of regular micro-breaks to manage the onset of headaches and

difficulty with concentration

Regular Application of proper posture and correct body mechanics.

At discharge, the assessors noted that the worker’s pain catastrophizing scale was reduced

to moderate as compared to severe at the commencement of the program. Her depression

had improved to moderate, but her pain rating remained at moderate, as it was at the

commencement of the FPP. The assessors further noted the following:

[The worker] reported significant improvement in her mood and anxiety secondary to

education sessions with the cognitive behavioural therapist. This was evident in her

ability to reduce her dose of Risperdal M-tabs (which she reported were prescribed for

nighttime agitation) from once nightly to once-to-twice weekly.

[...]

[The worker] also expressed significant regret that her pain did not improve in her time in

FPP, and she related that her biggest current concerns were around fears for her future,

particularly fear around returning to work, as she reported she does not feel capable of

this.

[...]

She presented as a pleasant and cooperative individual, though fearful, highly distressed

and disability focused. This was combined low affect and lethargy. She appeared easily

overwhelmed and tearful on occasions. As the program culminated however, [the worker]

appeared more outgoing and somewhat less reactive, citing somewhat improved

confidence as a result of attending treatment. Although somewhat improved upon

discharge, [the worker] demonstrated considerable pain behaviours, including upper

extremity guarding and antalgic gait...

[...]

Among her primary concerns [in individual cognitive behaviour therapy], she highlighted

doubts about her ability to return to work in any capacity and support her elderly father.

She also maintained that her future employment prospects were poor due to the extent of

her physical limitations, difficulties with English and advanced age. [The worker] largely

approached these sessions as supportive in nature. She appeared to have limited success

in attempting to apply techniques used in session independently. She seemed to require

coaching and direction in this regard. While she continued to struggle with

problem-solving, self efficacy and limited insight regarding negative thinking, [the

worker] articulated many benefits based on her participation in the program. Among


these she reported that although she remained easily overwhelmed and prone to crying

her mood was a “little better’ and calmer overall. ... [She] added that from a functional

perspective, her walking, sitting and standing tolerances were improved; and she noted

that she was somewhat more confident and active at home as a result. She additionally

described losing weight and improved sleep initiation.

The assessors advised that there were no contraindications that would preclude the worker

from engagement in the WT program. They recommended that as the worker had a positive

response to treatment further psychological sessions were warranted to assist with anxiety

and mood issues by a psychiatrist, should her symptoms continue, further supported by

eight to 10 psychological treatment in the community to further incorporate the coping

strategies she had learned. A follow-up assessment was recommended in three months to

address the worker’s psychological barriers and her use of coping strategies.

April 16, 2014: The worker was admitted to hospital for six days, with complaints of

abdominal pain. Following testing, internist, Dr. Sameshima concluded that the worker’s

diagnosis was: “Pancreatitis, slightly abnormal liver parameters. Negative a [sic] imaging

for gallstones. Underlying hypertension as well as nervous disorder.” On Discharge, the

worker was advised to comply with a low fat diet.

April 25, 2014: A WT Memorandum reported a meeting with the worker, her

representative, the CM and the WT Specialist, in which the following was noted:

[The representative] stated that the IW had been hospitalized for seven days for

pancreatitis ... The IW stated that she had been given a special diet she had been advised

to reduce her medications as they can contribute to “flare ups” and additional pain.

June 10, 2014: A WT Memorandum recorded a conversation between the WT Specialist

and the worker’s representative, in which it was noted that the worker “is back in hospital

with pancreatitis [and] ... admitted on either Jun 9 or early on Jun 10/14.”

June 12, 2014: A hospital Discharge report indicated that the worker had been treated for

“epigastric pain.” She had been prescribed Demerol and advised she could eat a normal

diet.

June 17, 2014: A report from Dr. Gajic stated the worker was unable to work due to

hospitalization on June 12, 2014, for the second time in the previous two month. No reason

was given for the hospitalization.

July 10, 2014: In a Report to the Board, Dr. Mesaros advised:

This is a brief follow-up note re [the worker] who was seen today in psychiatric re

assessment. [She] suffers with a severe form of Major Depressive Disorder (MDD),

chronic, unremitting + resistant to treatment. She is considered to be totally +

permanently disabled for work. GAF 47 which is worse than on October 30, 2012 at the

time of the last report to you.

July 24, 2014: An emergency room report stated that the worker attended due to emotional

upset that occurred while she was seeking work at a staffing agency. The report noted that

the worker stated she was suicidal. Her past history included “chronic body pain.”

February 3, 2015: In a further report to the worker’s representative, Dr. Mesaros provided

the following DSM-IV diagnosis:


Axis I Major Depressive Disorder – severe, unremitting

Post-Traumatic Stress Disorder – chronic

Panic Disorder without Agoraphobia – in remission

Axis II Features of low self-esteem;

Axis III Physical pain in multiple sites related to work place accident – low

back pain, left leg and left foot pain, left shoulder and left arm pain;

Hypertension: Degenerative changes in her C spine at the C5-C6 level;

Protruding disc at L4-L5; Chronic Gastritis – severe, secondary to

intake of high quantities of prescribed medications for pain and

psychiatric problems;

Axis IV Persistent high stress from chronic low back pain and pain in left leg

and left knee which are often tender and swollen; financial stress from

vocational disability caused by the work place accident;

Axis V GAF=47; serious impairment in social, occupational and school

functioning; intermittent suicidal thoughts associated with physical

pain, poor quality of life and unremitting depression.

Dr. Mesaros went on to state:

... [The worker] never recovered from the consequences of her workplace accident to

date.

[...]

[She] was essentially well before the accident at work. There is no evidence of

pre-existing psychiatric condition such as Major Depression, Post-traumatic Stress

Disorder, Panic Disorder and Pain Disorder before the accident at work in

September 2003. On the contrary, [the worker] described herself as a very energetic,

motivated and productive factory worker, always eager to help others, to volunteer for

difficult shifts and always well-liked and praised by her supervisors. There is no evidence

of absenteeism due to Depression, Anxiety or Pain Disorder before the accident at work.

There is ample evidence that [her] physical pain and complex mental illness evolved after

the accident at work.

Current mental status is still marked by symptoms of Major Depression – depressed

mood, psychomotor agitation, initial insomnia, lack of energy and interest in doing

things, fatigue, crying spells, sense of personal worthlessness, sense of hopelessness and

helplessness, cognitive difficulties such as diminished ability to think, presence of

negative thoughts, poor concentration and poor ability to focus and complete mental

tasks. Also, there are symptoms of chronic Post-Traumatic Stress Disorder – with

recurrent and intrusive recollections of the traumatic event at the former work place,

feeling and acting distressed bout the accident, being preoccupied with the consequences

of the accident at work, notably physical pain ... [and] limitations.

In addition to Major Depression and Post-traumatic Stress, [the worker] suffers with the

ongoing symptoms of Chronic Pain Syndrome, which developed after the accident at

work. She complains she is never pain free, that at night her pain causes insomnia due to

tossing and turning in order to find relief.

Dr. Mesaros reported that at that time, the worker had been prescribed Risperidone 0.5 mg

twice daily for control of psychomotor agitation and for prevention of negative thoughts.

Her report concluded:

In summary, [the worker] suffers from a complex and prolonged co-morbid physical pain

and psychiatric illness, which developed secondary to a serious accident at her

workplace, in September, 2003. This led to numerous unresolved complications, which


persist to date. [The worker] is considered to be totally disabled and completely

unemployable as a result of the work place accident and having to cope with ongoing

pain. Long-term vocational prognosis for [the worker] is very poor and she is not


(vii) The worker’s testimony

[32] The worker testified that before arriving in Canada in 1991, she achieved a Grade 12

education in her homeland and worked selling shoes for 17, years. Two years after her arrival,

the worker worked in the bakery of a large grocery store, a job she held for six years. The worker

was hired by the accident employer in 2001, working on machines that produced sausages and

salamis.

[33] The worker described her September 29, 2003 accident, stating that when the wheels of

the cart she was maneuvering caught, the cart fell on her and she was knocked to the floor. It

took three men to remove the cart and once that happened, she found she could not move due to

the pain in her low back. The worker testified that she tried to work with the pain for two days

because she was worried that she would lose her job, but found it then to be “terrible.” She was

also experiencing pain in her lower legs and at the base of her skull.

[34] The worker testified that while she had heart and psychological problems prior to the

compensable accident, her cardiac and psychological states following the accident were not the

same. It had been her family doctor who advised her to stay off work for 16 weeks and had

referred her to Dr. Milenkovic. In this period, the worker stated, the accident employer called her

every second day about returning to work and the Board had told her to do the same or she

would “get termination.” Because of this, the worker testified, she worried every day and

experienced a choking feeling. She was given medication for stress. She also attended hospital

where she was approved medication and told to return if her symptoms recurred. The worker

stated she continued to see Dr. Milenkovic. When she told the psychiatrist that the medication

she was given was “not right,” Dr. Milenkovic told her that there was nothing that could be

further done.

[35] The worker stated that she then sought another psychiatrist and began to see Dr. Mesaros

in 2004. She explained that during her attacks, she could not walk, her lips turned blue, her chest

tightened and her heart pounded. Initially she saw Dr. Mesaros weekly for six months until her

condition improved somewhat. At present, she had attacks three to four times each month and

each attack would last for three to four hours. The worker stated that Dr. Mesaros spoke her

language. The psychiatrist discussed her mood with her and she often cried during these sessions.

The worker explained that she cried because of “what happened to me” and because of “my

suffering.” She could not work and had “no normal life.” The worker testified that she was afraid

to talk to anyone else about her problems. She also stated that she had remained almost

completely housebound for the past six years.

[36] The worker testified that she recalled her training in the WT program. She described

being given short papers to answer in school. She did not get a certificate of diploma at the end

of the program. The work stated that three work placements had been found for her, but she was

only accepted by one. The work involved hanging clothes from a buggy after customers had tried

the clothes on. She alternated between standing and sitting, and found by the end of the day her

right upper arm was painful. It was also difficult for her to go to the washroom. The worker

stated that she performed these tasks for two months, attended twice a week for two hours.


[37] The worker stated that the pain in her legs was worse now. She could not manage going

up or down stairs and she could not walk or stand for long. The pain was constant while walking,

sitting and sleeping. The right leg was worse than the left and pain radiates in her back where she

had a ruptured disc. Both shoulders were painful, the right more so, due to radiating pain from

her back and she experienced swelling in her shoulders. Her neck and shoulder pains were

getting “worse and worse,” especially in the winter. The neck pain remained at the base of her

skull. The worker stated that she relied on pain medication every day.

[38] The worker testified that before her accident, she worked two jobs and “was never

home.” She used to enjoy dancing and going to movies and plays with her friends. She would be

out all day, but all this stopped when she “got sick.”

[39] The worker explained that on a typical day, she arose after no more than three to

four hours of restless sleep. She often could not sleep because her pain interfered with it and she

would have to get up. The time she arose was dependent on her pain level. The worker explained

that when she arose, it took 30 minutes for her to get dressed. She relied on her father’s

assistance with self-care. She needed help with shopping and cleaning. The worker stated that

she kept in touch with her friends who “always helped” and drove her places. While she could

cook, she did it slowly. She might go out for a walk once or twice a week if she was feeling

better or go out with a friend for coffee for no more than two hours. For the most part, the worker

testified, she did not go out much now because of her pain, nervousness and inability to sit still.

[40] While she had been “one way before” she was “another way now.” The worker described

her life as “very difficult ... I have no life ...”. She could no longer read, and if she tried to, she

would forget what she read. The worker stated that there was always something that happened to

set her back. She testified that she felt that her problems would never be cured or go away. The

worker testified that, at present, she was not capable of work.

[41] The worker confirmed that she had been admitted to hospital in 2014 for six days due to

bleeding and swelling in her stomach and pain under her breasts. She was eventually told that

she had pancreatitis and the condition was due to the medication she had been prescribed. She

did not know which medication as she did not have an interpreter. The worker testified that there

was a second six day admission to hospital, but it was acknowledged that attempts to obtain the

records of the second admission had not been successful. The worker stated the medication she

took for her stomach was changed and she still experienced swelling in her stomach and she had

problems with burping when she ate.

(viii) Analysis

[42] In reaching a decision on this appeal, I have considered the law and Board policy, the

Case Record, and the worker’s testimony and submissions. For the reasons that follow, I

conclude that this appeal should be allowed in part.

(a) Ongoing entitlement/permanent impairment for the legs

[43] In denying this branch of the worker’s appeal, the ARO on December 10, 2009,

concluded:

... although at time the legs are mentioned, I do not see in in these clinical notes [some of

which are unintelligible] or medical reports on file, any significant on-going bilateral leg

problems that could reasonably be related to the accident of 2003, and there is no separate

diagnosis for the legs.


[44] The worker representative submitted that the workplace accident of September 2003,

when the 600 pound cart fell on the worker’s legs was a significant accident. The worker’s left

leg pain was supported as present and diagnosed as CRPS type 1 by both Drs. Kirwin and

Carstoniu. The representative also noted the medical reporting that referred to the worker’s

altered gait and attributed her right leg problems to overuse in compensating for the left leg. As

such, the worker should be granted entitlement for her the condition of her legs.

[45] I agree with the representative’s submission that the September 2003 accident was

significant, involving a 300 kilogram cart falling on the worker’s legs. For the reasons that

follow, I also conclude that the worker has entitlement for injuries to her legs.

[46] At the outset, I note no evidence of substance to suggest that the worker had any issues

with her legs prior to her compensable accident in September 2003. The diagnoses provided

following the accident by Dr. Vujnovic and the worker’s chiropractor confirmed contusions to

the worker’s lower legs. The x-rays of the worker’s taken October 7, 2003, revealed no

abnormalities. When the worker attended the REC in December 2003, it was the opinion of the

assessors that the worker’s soft tissue injuries to her legs had resolved.

[47] However, in reviewing the medical evidence that followed, I find that the worker’s left

leg condition did not resolve. Dr. Charendoff noted in January 2004, that the worker was

experiencing referred pain in her lower legs due to her mechanical low back condition. In

February 2004, Dr. Vujnovic recommended continued restrictions regarding the worker’s legs.

Dr. Prutis described the worker’s leg pain in May 2004 as referred pain from the low back.

Dr. Vujnovic continued to report the worker’s leg pain in his FAFs of May 2004 through

September 2004.

[48] Following the February 2007 accident, Dr. Gajic reported the worker’s leg strain and pain

in her February 2 and April 7, 2007 reports. Following the July 2007 accident, the emergency

room confirmed the worker’s left leg complaint on July 17, 2007. In a discussion with the CA on

August 7, 2007, the worker advised that since her September 2003 accident, she had never

recovered from her leg trauma.

[49] Dr. Kirwin’s November 2007 report confirmed that low back and left leg pain were the

most severe of the worker’s complaints, which were attributable to her work place accident. He

noted on January 29, 2008, that EMG studies were normal for the worker’s legs. By April 2008,

Dr. Kirwin noted that the worker had experienced falls twice per month when her left leg gave

out and was falling or six times per month. In June 2008, Dr. Kirwin confirmed the diagnosis of

CRPS in the worker’s left leg.

[50] I note that on June 27, 2008, the CA reported the worker’s complaints of whole body pain

mostly left leg, left foot and low back pain. The CA attributed these complaints to the May 2008

fracture of the worker’s right ankle. I am not persuaded of this conclusion, given the balance of

evidence indicating that the worker’s major concern related to her left leg and Dr. Kirwin’s

diagnosis of CRPS in the left leg.

[51] From June to November 2008, Dr. Kirwin reported no significant changes in the worker’s

complaints or pain relating to her legs. In January 2009, Dr. Carstoniu assessed the worker’s left

leg pain that had not improved since her accident. He characterized it as “chronic left leg pain”

and state that “I completely agree” with Dr. Kirwin’s diagnosis of CRPS in the worker’s left leg


as “[t]he history of trauma, the nature of her symptoms and her physical findings all support this

diagnosis.”

[52] In my view, this reporting establishes that the worker suffered an ongoing injury to the

left leg. The evidence indicates that the worker had ongoing left leg pain from the time of her

accident and that was related to her compensable workplace accident in September 2003, as

stated by both specialists, Drs. Kirwin and Carstoniu. While there is some evidence that this pain

was secondary referred pain from the low back, I am nonetheless persuaded by the diagnosis of

CRPS by Dr. Kirwin in April 2008, and further confirmed by Dr. Carstoniu in January 2009, that

the worker suffered from this condition as a result of her compensable work-related accident. I

am also persuaded that the worker’s left leg was established as permanently impaired as of

Dr. Carstoniu’s January 13, 2009 report. It supported the worker’s diagnosis of CRPS and

qualified the worker’s condition as chronic. I further note that following Dr. Carstoniu’s report,

Dr. Kirwin continued to advise that the worker’s left leg condition remained unchanged and on

September 2009, it was further aggravated as a result of the worker’s excessive work demands.

[53] I find, therefore, that the worker has initial entitlement for the left leg, due to her

September 2003 injury, and furthermore, has entitlement to a NEL assessment of the left leg as

of Dr. Carstoniu’s report of January 13, 2009.

[54] As it pertains, to the right leg, on July 26, 2007, Dr. Wood reported that the worker’s

increased left leg complaints also involved limping which was affecting her balance. Further, as I

have noted, in June 2008, Dr. Kirwin reported that the worker’s right leg had become

problematic due to overcompensation for the worker’s left leg. In January 2009, Dr. Carstoniu

reported the worker’s irregular gait.

[55] Operational Policy Manual (OPM) Document No. 15-05-01, “Resulting from

Work-Related Disability” provides, in part, the following:

Worker sustaining secondary conditions that are causally linked to the work-related

injury will derive benefit to compensate for the further aggravation of the work-related

impairment of for new injuries.

[56] In this case, the worker suffered soft tissue and contusion injuries as a result of her

September 2003 accident. In December 2003, the REC concluded that these injuries had resolved

in the right leg. This is consistent with Dr. Carstoniu’s January 2009 report that a year following

the worker’s injury, the worker’s “right leg pain had significantly receded.”

[57] Dr. Wood referred to the worker’s increased left leg complaints also involved limping

which was affecting her balance in June 2007. In June 2008 and January 2009, Dr. Kirwin and

Dr. Carstoniu noted the worker’s right leg problem and altered gait. Dr. Kirwin concluded that

the worker’s developing right knee pain was due to overcompensation for her left leg injury. On

this basis, I do not find that the worker’s right knee condition directly stemmed from her

September 2003 injury. Rather, I find that it emerged as a secondary condition of that injury a

result of the overcompensation of the right leg for the injured left leg, as diagnosed by

Dr. Kirwin on June 24, 2008. As such, I conclude that the worker has initial entitlement for her

right leg as of Dr. Kirwin’s June 24, 2008 report as a condition secondary to her injury of

September 2003.


(b) The neck and left shoulder

[58] In reaching the decision of July 5, 2011, the ARO concluded:

In the absence of any evidence to support injury to the left shoulder or neck at the time of

the September 29, 2003 injury, I must conclude that entitlement is not warranted. In

addition, there is a lack of medical evidence to support the injury to left shoulder and

neck following the accident of February 2, 2007. ...

[59] The worker’s representative submitted that the medical reporting and the worker’s

testimony supported the conclusion that her neck and left shoulder condition were related to her

compensable injuries.

[60] With respect to the worker’s neck, I note that in her Form 6 report, the worker made no

reference to an injury to her neck, nor did the Form 8s completed by Dr. Vujnovic and the

worker’s chiropractor in October 2003. Subsequently, reference to the worker’s neck was made

in a number of reports, including Dr. Gajic’s July 23, 2007 report: decreased ROM in the neck.

Dr. Kirwin reported neck issues in November 5, 2007 – neck pain complaints and reference to

mechanical cervical pain; January 29, 2008: ongoing cervical complaints and

November 27, 2008 – ongoing neck pain. None of these reports provided a diagnosis for the

worker’s neck pain. Nor was there any evident imaging confirmation of a neck problem.

[61] Rather, in December 2007, Dr. Kirwin reported that a bone scan identified degenerative

changes “which were a component of her complaints.” Dr. Kirwin also ordered an MRI of the

worker’s cervical and lumbar spine. It is not apparent that this report is contained in the file.

However, on May 27, 2008, Dr. Wood reported MRI findings relating to the worker’s low back.

No mention was made of neck findings in his report that might otherwise relate the neck

condition to the worker’s compensable work-related accidents. Rather, in January 2009,

Dr. Carstoniu attributed the worker’s neck pain to the extension of lumbar pain “also up to the

neck.”

[62] In her report of January 2010, Dr. Mesaros stated that the worker suffered “severe pain in

her neck” following her 2003 injury. In her subsequent reporting of February 2015, Dr. Mesaros

noted that the worker was experiencing degenerative changes in the cervical spine.

[63] While in her testimony, the worker testified that her neck pain was getting worse, I am

unable to conclude that this was due to her workplace accidents. While neck pain was reported,

there was no clear correlation drawn between the pain and the work-related accident that was

supported by objective findings or diagnoses in the medical reporting. Rather it appears that the

worker’s neck pain was due to the normal and noncompensable degenerative process of aging as

indicated by Dr. Kirwin’s bone scan findings of December 2007 and Dr. Mesaros’ report of

February 2015. I conclude, therefore, that on the balance of probabilities, there is no causal

relationship between the worker’s neck complaints and her work-related accident.

[64] As it pertains to the worker’s left shoulder, I note again, that while the worker referred to

injury to the left arm in her 2003 Form 6, there was no mention of a shoulder injury. Thereafter,

the medical reporting is silent regarding the left shoulder until Dr. Gajic reported on

February 2, 2007 that the worker had “very sharp shoulder pain” and decreased ROM in the left

shoulder as a direct result of her accident lifting a pail of water on February 1, 2007.


[65] While it is noted that the March 2007 x-ray and ultrasound of the left shoulder rendered

normal result, Dr. Gajic’s report of April 2007 attributed the worker left shoulder strain to the

February 2007 accident. I note further, that in November 2007, the Dr. Kirwin based the

worker’s left shoulder complaints on a diagnosis of left rotator cuff tendonitis. I find that the

worker suffered a left shoulder injury as a result of her February 1, 2007. This injury was

attributed to the February 2007 accident by Dr. Gajic and further confirmed on a diagnosis of left

shoulder tendonitis by Dr. Kirwin in November 2007. As such, the worker has initial entitlement

for the left shoulder as a result of her injury in February 2007.

(c) LOE benefits from November 16, 2004 to December 2, 2004

[66] In the decision of July 5, 2011, the ARO concluded as follows:

In a follow-up visit of November 19, 2004 the worker was again treated for epigastric

pain. The chart note for November 22, 2004 records the worker’s complaints of difficulty

sleeping, chest tightness and heart pounding.

[...]

Having considered the evidence before me, I concur with the decision reached at the

operating level. The period of absence from November 16, 2004 to December 2, 2004 is

unrelated the compensable impairment and there is no basis to consider LOE benefits for

this period.

[67] As confirmed by the Board, the worker applied for, and received STD, disability benefits

from November 16, 2004 to December 2004. My review of the chart notes of Dr. Gajic in this

period indicates the following assessments:

November 15, 2004: anxiety and epigastric pain

November 19, 2004: anxiety

November 22, 2004: (unintelligible) pain, anxiety, panic (sent hospital)

November 30, 2004: anxiety and depressions (followed by Dr. Mesaros)

[68] Further review of the medical reporting in this period confirms the worker’s attendance in

an emergency room on November 28, 2004, where the diagnosis involved epigastric pain and

depression. Dr. Vujnovic reported that the worker had been under his care from November 16 to

December 20, 2004, but did not specify the nature of the “illness” involved. Other than

Dr. Gajic’s unspecified note of pain, which may have referred to epigastric pain, the

preponderance of the available evidence compels the conclusion that the worker’s LOE was not

based on her compensable injuries, but rather on noncompensable epigastric pain and

psychological issues. While the worker was later granted entitlement for psychotraumatic

disability in April, 2010, the condition in 2004 was noncompensable, and as noted above, while

the issue of the quantum of the worker’s NEL award for psychological disability is considered in

this appeal, the issue of initial psychological entitlement is not before me. As such, I conclude

that the worker’s lost time from November 16, to December 2, 2004 was due to noncompensable

issues and therefore, entitlement to LOE benefits in this period is not in order.

(d) NEL quantum for the low back

[69] As a result of the December 10, 2009 ARO decision, the worker was granted entitlement

to a NEL assessment for the low back. The assessment took place on April 14, 2010 and the

worker was granted a NEL award of 18%. The worker appealed the quantum of the NEL and the


NEL RN assessor’s review the medical evidence concluded that the quantum of the NEL had

been properly assessed. On July 5, 2011, the ARO upheld this decision, stating that there is:

... no compelling reason or argument had been presented which would result in a decision

to increase the NEL quantum. The evidence supports the degree of permanent

impairment has been accurately and adequately reflected by the NEL award.

[70] In conducting the original NEL assessment as it related to a diagnosis of lumbar strain,

the NEL assessor based her finding on Dr. Carstoniu’s January 13, 2009 report and its reference

to the CT findings of March 2009. The NEL assessor reported the following:

Lumbosacral Region: 18%

Abnormal Motion: 12%

Maximum Flexion measured was 30 degrees

Maximum Extension measured was 10 degrees,

Maximum Left Lateral Flexion measured was 15 degrees

Maximum Right Lateral Flexion measured was 20 degrees

[...]

Other Impairment:

Unoperated intervertebral disc or other soft tissue lesion with medically

documented injury and a minimum of six months of medically documented pain,

recurrent muscle spasm or rigidity, associated with moderate to severe

degenerative changes on structural tests; includes unoperated herniated nucleus

pulposus with or without radiculopathy, affecting level(s) L4-L5 7%

impairment.

Spine: 18%

Whole Person: 18%

[71] The only ROM measurement that can be compared to that of the NEL assessment was

provided by Dr. Carstoniu in his January 2009 report. Dr. Carstoniu measured the worker’s low

back extension at 5 degrees, as compared to 10 degrees measured by the NEL assessor.

[72] Table 60 found at page 98 of the AMA Guides entitled “Impairment Due to Abnormal

Motion” provides the following rating scheme for the evaluation of lumbar extension.

True Lumbar Extension Degree of Lumbosacral % Impairment

of From Neutral Position Motion Whole Person

(0˚) to” Lost Retained

______________________________________________________________________

0˚ 25˚ 0˚ 7

10˚ 15˚ 10˚ 5

[73] According to Table 60, 0 degrees of lumbar extension equates to a 7% whole person

impairment and 10 degrees of lumbar extension equates to a 5% whole person impairment. On

determining that the worker had a lumbar extension of 10 degrees, the Board has awarded the

worker the lower rating of a 5% whole person impairment. Dr. Carstoniu measured the worker’s

lumbar extension at 5 degrees.


[74] Table 60 does not set out a rating for 5 degrees of lumbar extension. Earlier decisions of

this Tribunal concluded that where there was no “in between” rating, it was beyond the Board’s

jurisdiction to amend the AMA Guides to include an amount that was not specifically listed.

(See, for example, Decisions No. 269/93 and 28/97.) Later decisions found that the Board should

be permitted latitude to stray from the AMA Guides rating where reasonable. (See

Decisions No. 122/96 and 918/00.) More recently, the Panel in Decision No. 1970/15 heard a

case in which a rating fell in between the AMA Guides outline and the assessor chose the lower

of the ratings. The Panel in Decision No. 1970/15 concluded the higher rating was appropriate on

the basis that to find otherwise appeared to be inconsistent with the benefit of doubt provisions

pursuant to subsection 124(2) of the WSIA.

[75] The issue in this case involves the finding of the assessor that the worker had a lumbar

extension measurement of 10 degrees. In doing so, the assessor considered Dr. Carstoniu’s report

which found lumbar extension at 5 degrees. In the absence of significant reasons to depart from

the findings of Dr. Carstoniu, I find that the worker’s NEL rating should be based upon his

findings. As the whole person rating falls between the AMA Guides listings 5% and 7%, I adopt

the approach taken by the Panel in Decision No. 1970/15. I am persuaded that the benefit of the

doubt applies in this case and the higher rating should apply. As such, the worker’s whole person

impairment is appropriately rated as a 7% whole person impairment. This serves to increase the

worker’s NEL award by 2%.

(e) NEL quantum for psychotraumatic disability

[76] In granting initial entitlement for the worker’s psychotraumatic disability in May 6, 2013,

the ARO stated:

As noted, I do not accept that the worker was without psychological problems prior to the

work injury but I do conclude that the socioeconomic stressors that arose as a result of the

worker injury affected her pain and exacerbated her psychological condition.

The evidence is that subsequent to her work injury, the worker’s psychological problems

intensified. The worker had chronic back pain and problems arose at work with respect to

finding suitable work. There was conflict with supervisors around the return to work

issues. She feared for her financial security. She eventually lost her job as suitable work

was not available. I accept that her condition became worse in response to these stresses.

I conclude that the persisting psychotraumatic disability is primarily related to extended

disablement and to non-medical socio-economic factors, the majority of which can be

directly and clearly related to the work related accident.

The ARO went on to state that it was not clear that the worker had reached MMR for her

psychotraumatic condition and directed and assessment of the worker in the FPP.

[77] The worker’s representative submits that the worker’s psychological condition prior to

the September 29, 2003 accident were clearly distinguishable from the psychological problems

she had following the accident. Notably, her panic attacks occurred post-accident. The

representative also argued that while the worker’s pre-injury heart issues involving tachycardia

could be mistaken for panic attacks and anxiety, the medical evidence clearly differentiated her

pre-and post-accident conditions. He contended that the first diagnosis of panic attack occurred

when the worker attended the emergency room in March 2004. The representative submitted that

the quantum of the worker’s NEL award for psychotraumatic disability had been underestimated

as mild, given the medical reports that reflected the severity of her of her psychological

condition, particularly the reporting of Dr. Mesaros.


[78] In conducting the NEL assessment the NEL Clinical Specialist concluded that the worker

had entitlement to a 10% NEL award for her psychotraumatic disability and found the MMR

date to be February 10, 2014, the date of the FPP Discharge Report.

[79] The NEL Clinical Specialist’s assessment included the following as it related to the

worker’s ADLs, social functioning, concentration persistence and pace, and adaptation to stress:

Overall Impairment:

In reviewing all of the available and relevant evidence, a Class 2 – 10% impairment best

describes the worker’s condition noting:

Organic pain and response to pain (pain behaviours) continues to be central

since her injury. Although the worker remains independent in the majority of her

ADLs (cooking, doing groceries, personal care), she doubts her ability to return

to work in any capacity and support her elderly father.

The worker reports challenges with her memory and concentration, specifically

with sustaining and focusing her attention. She seemed to require coaching and

direction when learning new pain coping strategies and was limited in insight

regarding negative thinking. However, cognitively she did not demonstrate any

noteworthy challenges. As noted previously she continues to live independently

and there is no evidence of self-neglect. As such, any degree of impairment of

complex integrated cerebral functioning would be considered minor in nature.

In spite of challenges (pain and physical limitations), the worker states she

continues to socialize and can enjoys [sic] spending time with friends. At the

end of the ... [FPP], she appeared to be more outgoing and less reactive, and

cited improvement in her self-confidence. However there continues to be

evidence of some loss of personal and social efficacy as the worker continues to

doubt her ability to return to work in any capacity, is easily overwhelmed, and

continues to be emotionally labile. That being said psychological testing results

indicate an improvement in the worker’s perception of her disability (previously

she saw herself as severely disabled, now sees herself as moderately disabled).

At the end of the ... [FPP] the worker reported achieving a significant

improvement in her mood and anxiety. Further she was able to reduce her dose

of Risperdal (prescribed for night-time agitation). She has shown an

improvement in her level of depression from the time of the assessment although

depressive symptoms are still somewhat present. There is no evidence of

suicidal ideation.

[80] The NEL Clinical Specialist referred to the Board’s OPM Document No. 18-05-11,

“Assessing Permanent Impairment Due to Mental and Behavioural Disorders,” which states, in

part, the following:

Policy

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.

Guidelines

Rating 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 ...

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

The following scale applies to the assessment of permanent impairment benefits for

psychotraumatic disability, chronic pain disability, and fibromyalgia syndrome.

Class 1, No impairment (0%) - no impairment noted

Class 2, Mild impairment (5-15%) - impairment levels compatible with most useful

function

There is a degree of impairment of complex integrated cerebral functions, but the worker

remains able to carry out most activities of daily living as well as before. There is also

some loss in personal or social efficacy and the secondary psychogenic aggravations are

caused by the emotional impact of the accident.

There is mild to moderate emotional disturbance under ordinary stress. A mild anxiety

reaction may be apparent. The display of symptoms indicates a form of restlessness,

some degree of subjective uneasiness, and tension caused by anxiety. There are

subjective limitations in functioning as a result of the emotional impact of the accident.

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 roombound at frequent intervals.

Class 4, Marked impairment (50 - 90%) - impairment levels significantly impede

useful function

[...]

Class 5, Extreme impairment (95%) - impairment levels preclude useful function

[...]


[81] As the outset, I find that the worker’s panic attacks commenced following her

compensable injury of September 2003. It is evident, in my view, that while the worker attended

the emergency room in June 2003 and it was initially considered that the worker was

experiencing cardiac problems that were initially thought to be anxiety-related, the final

assessment concluded that she had more likely suffered from gastrointestinal reflux.

[82] The NEL assessment resulted in a 10% award, which placed the worker in the mid-range

of Class 2 representing mild impairment at levels comparable to most useful function. For the

reasons that follow, I find that the NEL quantum of 10% inadequately represents the worker’s

level of impairment. Rather, I find that the worker’s psychological impairment is better

represented by an award based on Class 3 criteria, of moderate impairment at levels compatible

with some but not all useful function.

[83] In reaching this conclusion, I do not overlook the findings in the final FPP report that the

worker’s condition had benefited from the treatment she had received in this program. This is

reflected in the analysis provided by the Specialist as set out above. In my judgment, however,

the results set out in the Discharge Report of the FPP were transitory in nature and reflected the

worker’s condition only while she was participating in comprehensive treatment. In my view, as

I explain further below, on a broader assessment of the evidence, the conclusion of the FPP

assessment did not reflect a realistic representation of the worker’s psychological condition.

[84] In particular, I find that the worker’s characteristics do not reflect the Class 2 criteria of

mild to moderate disturbance under ordinary stress. Dr. Mesaros provided the most

comprehensive psychological treatment of the worker, commencing in November 2004, a year

following the worker’s compensable accident. In her first report of February 2010, Dr. Mesaros

provided a diagnosis of major depression which was “severe and unremitting,” along with a GAF

score of 49 (down from 50 to 51 in 2009) represented a “serious impairment of the worker’s

social and occupational function.” She opined at that time that with the use of medication, the

worker’s panic attacks and chronic anxiety had gradually been brought under control.

[85] The Psychovocational assessor found on testing in March 2010 that the worker’s

depression and anxiety were in the “severe range.” The conclusions of the PTP assessors of

July 2010 was that the worker’s depressive disorder was moderate and that she continued to

suffer from a panic disorder, as did Dr. Dalton in his report of January 2011. In April 2012,

Dr. Palikucin-Reljin measured the worker’s depression in the “severe” range. She related the

worker’s anxiety due to prosecutory and fearful thinking, nothing that the worker also expressed

suicidal ideations. In May 2011 Dr. Mesaros estimated the worker’s GAF as 49. Her rating of the

worker’s depression in September 2012 was severe at 35 - down five points from her previous

rating of 40 - where the normal rating was 10. In October 2012, Dr. Mesaros diagnosed major

depressive disorder that was again “severe, unremitting.” At that time she stated the worker’s

panic disorder was in remission. It is noted that this was the period in which the worker was

participating in the WT program, as outlined in more detail below, she was experiencing frequent

panic attacks, many of which took her to hospital. Dr. Mesaros supplied a GAF of 48-49 and

noted “serious impairment in social, occupational and School functioning,” along with suicidal

ideation. It is of note, that the FPP Discharge Report also provided a diagnosis of “moderate”

major depression, but with a slightly higher GAF of 51 to 55.


[86] Following the FPP program and the worker’s admissions to hospital for treatment of

pancreatitis, Dr. Mesaros reported to the Board on July 10, 2014, that the worker continued to

suffer from a “severe form of Major Depressive Disorder, chronic and unremitting + and

resistant to treatment.” Notwithstanding Dr. Mesaros’s prior and later reports indicating the

worker’s panic disorder was in remission, the worker was once again in the emergency room in

July 2014 as the result of a panic attack and expressions of suicidal ideation.

[87] Viewing these reports as a whole, it is evident that throughout, the worker suffered from

at least moderate depression, as acknowledged in the FPP Discharge Report and more likely a

more severe degree of the condition as was consistently reflected by Dr. Mesaros over the

10 years in which she treated her, and further supported by the Psychovocational assessor and

Dr. Palikucin-Reljin. I find this to be compelling evidence that the worker’s impairment was

more than mild as the Class 2 criteria provide. The worker suffered more than mild to moderate

disturbances under ordinary stress, as her frequent panic attacks and suicidal ideations indicate.

Her anxiety levels are readily viewed as more than mild. The symptoms she displayed during

these episodes involved more than just restlessness and some degree of uneasiness and tension.

In my view, the nature of the worker’s depression, anxiety and panic attacks clearly place her

with Class 3, Moderate Impairment.

[88] On a review of the other aspects within Class 3, I note the following. While the worker’s

complex integrated cerebral functions were impaired by her reduced concentration and focus and

she was suffering from psycho motor agitation as noted by Dr. Mesaros in February 2010, she

was still able to manage her self-care, although more slowly. The worker remained able to cook,

although cooking larger meals so that she did not have to cook every day as was noted in the FPP

Discharge Report. The worker remained able to contribute the care of her parents, without

significant evidence of diminishment of, or direct withdrawal from, her familial relationships.

While the worker testified that she spent most of her time at home, she still managed to maintain

her social connections as she testified. While the worker experienced fatigue, insomnia and

demonstrated a significant level of stress intolerance, for example, reacting to the notion of

dealing with the public in favour of work that was more independent of public interaction, there

is no evidence of substance that noise intolerance was a factor or that she demonstrated bizarre

behaviour.

[89] On balancing these criteria, I conclude that the worker demonstrated more than less of the

criteria of Class 3 Moderate Impairment category. I find that this warrants a NEL rating in the

mid-range of the Class 3 of 30%.

(f) WT services

[90] There are four issues in this appeal that relate to the worker’s participation in the WT

program between June and August 2014. Each arises out of separate decisions made by the CM.

The details of each are as follow:

May 31, 2013: The worker’s representative queried in May 20, 2013 correspondence why

the worker was still participating in WT services since the ARO decision of May 6, 2013

had awarded the worker entitlement to a NEL assessment for her psychotraumatic

disability. The CM responded as follows:


The ARO has awarded a PI for the psychiatric disability and requested an assessment ...

and any further treatment which may be necessary. This will be completed when [the

worker] completes her current placement in her WT plan and prior to her commencing

her [JST] and her [work placement] so as not to disrupt her WT plan.

[...]

If these conditions are not met, and we have given the worker notice of non-cooperation,

the ... LOE benefits are reduced or stopped.

There is no mention in the ARO decision that the worker is incapable of participating in

her WT plan due to the PI for Psych. And the plan will continue as agreed to. The worker

remains partially impaired.

September 25, 2013: In response to the worker representative’s claim that the worker was

unemployable and therefore should not resume her WT plan on completion of her

treatment at the FPP, the CM advised the following:

... this letter confirms that the medical on file does not support that she is unemployable

and the WT services will resume once she has completed her treatment. It is expected that

the treatment will help her cope better in the WT services and her employability. If she

fails to continue in the treatment and WT services, her ... LOE may be reduced or

stopped.

April 7, 2014: The CM advised the worker as follows:

WT services were closed on October 23, 2013 as you were attending the ... [FPP]. You

have not completed the FPP as of February 10, 2014. I am referring this claim for a NEL

assessment ...

[...]

I am also reactivating WST services to complete your ... SO of Light Assembly

[...]

... as long as you cooperate fully in your WT plan, you will continue to receive ... LOE

benefits.

September 3, 2014: With respect to the suitability of the SO of Light Assembly, the CM

advised the worker of the following:

You began your training in the ... SO of Light assembly in November 2012. You have

recently been awarded an 8 per-cent ... NEL award for psychiatric disability. I have

determined that the SO is still within your precautions and you are still partially impaired

and capable of working. You have now successfully completed your ... WT plan as of

August 29, 2014.

[91] In essence, these issues are interrelated and as such, I have integrated them as I proceed

in my analysis below.

[92] By way of background, the following review of the worker’s participation in the WT

program is instructive of this analysis. The worker was referred to WT services in August 2012

and participated in it until September 2013, when she was referred to the FPP program. In this

period, the following is noted:

On September 17, 2012, an initial meeting with the worker, her representative and a Work

Transitions Specialist (WTS) was held. It was noted that the worker was “ ... visibly

agitated, tearful and shaking for most of the meeting.” The worker also expressed fear that


“people will laugh at her if she attends the training program” and was reassured she would

be treated with respect and dignity.

A WT plan was completed on November 17, 2012, which identified the SO of Retail

Salespersons and Sales Clerks as suitable for the worker. Her WT program included

six weeks of ESL training; six months of vocational training, two weeks of Job Search

Training (JST) and 10 weeks of on-the-job training. The worker signed the plan but it was

noted by the worker’s representative that “[t]he I.W. objects to the plan, but will fully +

completely cooperate until such time as this matter is resolved.”

On November 30, 2012, the WT service provider advised the Board that the worker had

been found in distress, “rapidly breathing and making loud moaning sounds” along with

expressing suicidal thoughts. The worker did not wish to go to hospital and stated that pain

was originating in her low back and extending to her shoulders and chest. The worker was

reassured by the WT staff and the CM. The worker advised the CM that she liked everyone

at the WT program and they were all nice, but she was afraid of working in a store and

would rather do factory work. The worker was eventually sent home by taxi as she did not

feel well enough to return to her class.

In a discussion with Dr. Mesaros on December 12, 2012, the CM advised of the worker’s

report of enjoying the program and was doing quite well. Dr. Mesaros stated that the

worker had a long history of psychosis, depression and anxiety and was on an

anti-psychotic medication, which if increased in dosage would cause the worker to be

drowsy, impairing her ability in the program. It was Dr. Mesaros’ reiteration of her

previous opinion that the worker could not manage a structured program and ran the risk of

decompensation of her mental state. In a memorandum to the Board, dated

December 12, 2012, the service provider requested that the worker sign a “no suicide, no

harm” contract. There is no indication the worker’s file that this request was pursued.

In a December 12, 2012 Progress Report, it was noted that the worker stated she liked

school, her teacher and that everyone was nice. To this point, the worker had suffered

“several panic attacks” in the program. A December 21, 2012 ESL report indicated barriers

to the worker’s progress including high levels of stress and anxiety, especially in regard to

returning to work; expressed feelings of pessimism with respect to her English capability;

frequent references to wishing she was dead, and frequent, major episode of nausea and

physical pain.

On January 23, 2013, the worker’s SO was changed to Light Assembly and a new WT plan

was signed. The rationale for the change was based on the worker’s concerns about dealing

directly with the public.

On January 28, 2013, the WTS advised the CM that on January 25, of the worker’s upset

that she was not believed as to the pain she had from her compensable condition and that

she did not want to live. After reassurance, she returned to class. A similar panic incident

was reported on January 29, 2010.

The worker completed her ESL training on January 21, 2012 and proceeded to the

vocational training program. In these programs, she participated five days a week, for

four hours in the afternoon. On February 15, 2013, the worker’s work placement interview

was cancelled due to the worker’s illness. The job entailed tagging clothing for a


department store. The interview was rescheduled and held on March 5. While worker was

reported to have presented well, the employer, in the end, concluded that she could not be

accommodated.

On March 18, 2013, a further incident involving the worker’s upset over her pain and

passive suicidal thoughts was reported by WT program to the Board. The worker was

reassured and sent home by taxi.

Following an interview on March 18, the worker commenced her work placement at

another department store on March 23, 2012, for two hours, two days a week. The

placement included job coaching.

On March 25, the worker again complained of her pain and suicidal thoughts. As on

previous occasions, the worker stated that no one believed her pain and she was again

reassured by the WTS that this was understood.

On May 3, 2013: Another work placement interview took place in a flower store. While the

worker was reported to have presented well, the store could not accommodate her as the

work involved heavy lifting. Two further interviews with large clothing retail stores were

scheduled for May 29 and May 31 and the worker was offered placement in each, tagging

and folding clothing.

On May 31, 2013, the worker signed an agreement to participate in the second work

placement. She performed well on June 6, the first day of the placement, but on June 7,

advised the service provider that she was experiencing chest pain, shortness of breath, and

dizziness. She was sent to hospital by ambulance. The worker performed well in the work

placement on June 13.

On June 24, 2013, the worker’s WT plan was extended by eight weeks to allow her more

time in the work placement. On news of the extension, the worker was reported to have

become agitated and an ambulance was called.

As of July 8, 2013, the worker’s hour were increased to 2.5 per day. The August 22, 2013

Progress Report indicated that the worker had increased her placement hours to three and

was making progress.

The worker attended the JST program with the assistance of an interpreter on

September 3, 2013. The worker reported that she did not feel capable of returning to work.

While cooperative, the worker presented as tearful and reported extreme anxiety as well as

struggling not to vomit during her appointments. It was noted that the worker was

challenged by her lack of computer skills and that she did not own a computer. On

September 13, 2013, it was determined that the JST program would be put on hold from

September 17 so that the worker could attend the FPP.

By this time, the worker had 107 missed hours of required time in the WT program.

[93] The WT program resumed in April 2014, but the worker did not attend it having been

noted that she was hospitalized in April and June for treatment of pancreatitis. It recommenced in

June 2014, with weeks of work placement remaining and participation in the JST. A job

opportunity as packager had been identified, but was determined to be outside the worker’s

restrictions.


[94] At a meeting held April 28, 2014, the worker became nauseous and had to leave the

meeting, accompanied by her interpreter. On July 4, 2014, the worker was reported to have had

an anxiety attack.

[95] On June 9, 2014, the WTS reported that the worker had completed JST and had 10 weeks

of remaining employment placement services, which was approved June 10, 2014. It was also

noted that day that the worker had been readmitted to hospital for treatment of pancreatitis. At an

orientation meeting held June 24, 2014, the worker was directed to contact 20 employers each

week. A work placement was considered. It was reported that the worker was pursing

employment on July 21, 2014. The worker’s representative advised that “although the IW will

cooperate fully in WT; he does not think the IW is able to fully participate due to compensable

and noncompensable reasons,” the latter presumably the worker’s struggle with pancreatitis.

[96] A July 24, 2014 Crisis Intervention Report stated that the worker had attended the JST

and explained her condition was progressively worsening. The worker stated that no one cared

about her, but that they would do so once she committed suicide by taking all of her medications.

An ambulance was called and police assistance, the worker was taken to hospital.

[97] The WTS reported on August 14, 2014 that the worker had met with service provider. It

was noted that the worker had completed 16 job search activities with the assistance of a friend

in the previous week, along with her job search log. Unfortunately, the worker’s résumé read

“Light Packer/Assembly” instead of “retain Light Packer/Assembly.” The worker reported

continuing to seek work with the assistance of friends and “cooperates fully with the

expectations” of the program. The service provider confirmed continued attempts to find

employment for the worker without success.

[98] On August 15, 2014, the worker advised the service provider that she was “unwell” due

to injury-related pain and her ongoing gastrointestinal problems.

[99] The WT program was closed on August 29 2014. The WTS reported that neither the

program nor the worker had been successful in finding employment for the worker and the

worker was unemployed at the time of the closure. The Employment Closure Report stated that

the worker had circulated her résumés in various malls. She had not been able to pursue online

job searches “as her friends were out of town.” The report went on to state:

Despite ongoing job development activities undertaken on behalf of [the worker], a job

offer was not secured. Many employers indicated they were not currently hiring, or had

opportunities that were not suitable for the Worker. Further, due to limited English skills,

[the worker] noted difficulties communication with employers. Also, her limited

computer skills made it difficult for her to complete online applications independently. ...

Overall, [the worker] demonstrated cooperation throughout the [employment placement]

program.

[100] The worker’s representative submits that the worker’s more than mild psychotraumatic

condition constituted a barrier to her success in the WT program. Despite her best efforts the

worker failed to complete 107 hours of missed time in vocational training. The PTP program

advised that the worker could return to WT if her condition stabilized, but this did not happen as

was evidenced by the frequent reports of the worker’s panic attacks and hospital attendances that

occurred during the program. As well, the SO the worker was assigned required her to stand and

this was not fair to the worker given her physical restrictions. In the representative’s view, there

was no likelihood that the worker would succeed in WT given the severity of her physical and


psychological problems. The worker’s participation in the WT program should be viewed, at

best, as a gamble. It was evident that the worker’s condition never stabilized.

[101] At the outset, I make two findings. First, as noted above, I have allowed the worker an

increase in the quanta of her NEL award established in April and June respectively for the low

back of 2%, for psychotraumatic disability from 10% to 30%. These increases constitute a

significant whole person award of 44%. These increases also necessitate a re-evaluation of the

worker’s circumstances at the time she resumed her WT program in June 2014 in training for

employment in Light Assembly.

[102] Second, it is clear on review of the worker’s file that there is no issue associated with the

worker’s cooperation in WT services. This is evidenced by her commitment to engage in WT

services in 2012 when it was noted that “[t]he I.W. objects to the plan, but will fully +

completely cooperate until such time as this matter is resolved.” Thereafter, the file indicates that

the worker was motivated to continue to the best of her ability. The final report of the WT

program expressly stated that “Overall, [the worker] demonstrated cooperation throughout the

[employment placement] program.”

[103] In my view, and notwithstanding the worker’s cooperative efforts, she was incapable of

successfully completing the WT program. Even though she participated in her upgrading and

vocational training, and was said to have completed the program, by August 29, 2014, she

nonetheless had a remaining 107 hours of missed required time in the program that was

outstanding.

[104] I am further persuaded of the worker’s inability to successfully complete the program by

prior reports that predicted the difficulties the worker faced. In March 2010, the

Psychovocational assessor expressed clear reservations about the worker’s capacity to participate

in the WT program. The assessors noted at the outset that there were adverse factor affecting the

worker’s performance, including “fatigue, anxiety, concentration difficulties, pain and level of

depression ... that may not accurately reflect her true potential on some of these measures.” The

assessors concluded that the worker was not a good candidate for retraining in 2010 without the

benefit of a pain management program that could be done in concert with the worker’s

upgrading. Notwithstanding the worker’s evident motivation to return to work, the assessors

expressed further concerns regarding several barriers present that may affect the worker’s

success in retraining. Her job options are limited due to her restrictions. Additionally barriers

included her psychological issues; other injuries and non-compensable medical issues; low test

scores; poor English language skills; and her medications, which could affect her level of

alertness and concentration. As well, the number of years she had left in the workforce and for

retraining was somewhat reduced, given her age. These limitations could affect her job options

and her retraining.

[105] As recommended by the Psychovocational assessor, the worker was referred to the PTP

prior to the commencement of the WT program. The PTP assessors concluded that no

psychological restrictions were indicated and the worker’s prognosis for retraining and return to

work was characterized as “fair.” Positive prognostic indicators included the worker’s stable

pre-accident state, her occupational functioning and her expressed motivation to return to work.

Negative factors included the worker’s chronic pain, limited fluency in English, multiple

psychosocial stresses, her older age and her longstanding anxiety sensitivity. Although continued

psychological and psychiatric treatment was recommended, the negative factors did not take into


account the extent of the worker’s psychological impairments, a particular concern raised by the

Psychovocational assessor.

[106] In January 2011, Dr. Dalton expressed reservations about the worker’s future, stating:

It should also be noted that such factors as advanced age, perceived disability, lack of

English speaking skills, no driver’s licence and work experience limited to physical work

will likely pose significant barriers to a successful return to work.

[107] In October 2012, Dr. Mesaros addressed this issue in even stronger terms by opining:

Axis V=GAF 48-49, serious impairment in social, occupational and Schooling function

[...]

Vocational rehabilitation is not indicated because of persistent, active psychiatric

symptoms, particularly impaired cognitive functions, such as ability to concentrate,

remember and retain new material. In fact, the efforts at re-training would likely

aggravate [the worker’s] mental status. ... Psychiatric treatment for maintenance will

continue indefinitely. Vocational prognosis for [the worker] is very poor and she is not


[108] The February 2010 FPP Discharge Report indicated that the worker’s condition had

improved with treatment and stated that there were no psychological contraindications to the

worker’s return to the WT program. As I have found previously in this analysis, the FPP results

were at best transitory and reflective of the comprehensive treatment the worker received while

participating the program. I note further, that the FPP assessors recommended a three month

follow-up assessment to evaluate the worker’s barriers and her utilization of the coping strategies

she had been taught. There is no indication in the file that this follow-up took place. Had it, it

would have been scheduled in May or June 2014, coinciding with the worker’s resumption of

WT services and may have provided further insight into the worker’s capabilities at that time.

Furthermore, the FPP recommended that despite the worker’s positive response to treatment,

further psychological sessions were warranted to assist with anxiety and mood issues by a

psychiatrist, and should her symptoms continue, a further eight to 10 psychological treatments in

the community to further incorporate the coping strategies she had learned. There is also no

indication that this recommendation was followed; rather, in May 31, 2013, just prior to the

resumption of the WT program, the CA advised the worker as follows:

The ARO has awarded a PI for the psychiatric disability and requested an assessment ...

and any further treatment which may be necessary. This will be completed when [the

worker] completes her current placement in her WT plan and prior to her commencing

her [JST] and her [work placement] so as not to disrupt her WT plan.

[109] This combination of events, in my view, served to diminish the worker’s chance of

success on her return to the WT program in June 2014.

[110] The evidence of the worker’s circumstances once she resumed the program in June 2014,

absent the recommended psychological support, and given her noted barriers to success, is also

predictive of her inability to achieve success in the WT program. In particular, I note the

following:

On July 14, 2014, the worker suffered another panic attack and was taken to hospital.

The July 24, 2014 Crisis Intervention Report stated that the worker had been expressing

suicidal thoughts and was taken to hospital.


While the worker attempted to secure employment, she relied on friends for this and in

particular, to conduct online research, which evidently the worker had never mastered. This

is supported by the Closure Report, which indicated that the worker could not communicate

online independently.

A lack of clarity in the worker’s understanding of the process of job seeking was evident in

her confusion on her résumé read “Light Packer/Assembly” instead of “retail Light

Packer/Assembly.”

The Employment Closure Report confirmed that there were no job opportunities identified

that were suitable for the worker. It also noted that the worker’s limited English skills and

had difficulty communicating with potential employers. The report specifically stated:

Despite ongoing job development activities undertaken on behalf of [the worker], a job

offer was not secured. Many employers indicated they were not currently hiring, or had

opportunities that were not suitable for the Worker. Further, due to limited English skills,

[the worker] noted difficulties communication with employers. Also, her limited

computer skills make it difficult for her to complete online applications independently.

[111] I conclude, therefore, that notwithstanding the worker’s undisputedly genuine and

cooperative efforts, she was incapable of successfully completing the WT program, and therefore

securing any reasonable form of employment. During, and at the end of the WT program, the

worker had a significant 44% NEL for her combined organic and nonorganic impairments. She

did not have the benefit of the psychological support recommended by the FPP. The impact of

this was evident in the reports of her ongoing upset and panic attacks provided by the program.

The worker did not possess the capacity to successfully communicate with potential employers

as the Closure Report confirmed. I would add in this respect, that while the Psychovocational

assessor recommended that the worker required “extensive ESL training to upgrade her English

language skills,” and noting the numerous other comments about the worker’s lack of fluency,

the worker was only provided ESL for a six week period as noted in the original WT plan.

Despite the concerted efforts of both the worker and WT staff, the worker was unable to secure

employment in the program. It is also noted that while the worker was participating in work

placement, she was never able to achieve more than two and one half hours for two days per

week, which, even though she participated, is not a reasonable practical basis for any

determination of successful employment. As such, I find that it was unreasonable to expect the

worker to resume the WT plan and the worker’s experience in the WT plan demonstrated the

inappropriateness of the SO of Light Assembly.

(g) LOE benefits from September 1, 2014

[112] In correspondence dated September 3, 2014, the CM advised the worker that she

remained partially disabled. She completed her WT Plan on August 29, 2014 and the SO of Light

Assembly remained within her precautions. The CM advised that effective September 1, 2014,

the worker’s partial LOE benefits would be locked in based on the difference between her

pre-injury earnings and her average potential earnings in the SO over a 40 hour work week.

[113] The worker’s representative submitted that the worker was unsuccessful in her WT

program due to the consequences and severity of her compensable injuries. As such, her LOE

benefits should not have been adjusted to partial benefits as of September 1, 2014; rather, she

was entitled to full LOE benefits to the age of 65 years.


[114] I agree with the worker’s submission that as of September 1, 2014, the worker should be

entitled to full LOE benefits. The worker’s experience in the WT program, as described in detail

above, demonstrated that the SO chosen for her was not suitable. In addition to being

unsuccessful in the WT program and unemployable at that time, the worker was also close to

60 years of age, with a mere five years of potential participation left in the workforce. She

possessed very little demonstrated English language fluency or competency in the use of a

computer. She had a significant combined NEL award for her combined organic and nonorganic

impairments. The worker is, therefore, entitled to full LOE benefits from September 1, 2014 to

the age of 65 years.

(h) Entitlement for pancreatitis

[115] As previously noted, the Tribunal’s Medical Liaison Office reviewed this file and

“strongly recommended” that it be referred to a Tribunal Medical Assessor for an opinion. It was

concluded at the hearing of this matter that this recommendation would be pursued.

[116] The issue, as outlined above, involves the worker’s objection to the Board’s decision to

deny the worker’s entitlement to pancreatitis. In the decision of August 19, 2014, the CM

concluded:

I have reviewed the medical on file as well as your submission attached to your

June 13, 2014 correspondence. I am unable to relate the pancreatitis solely to the

medications she is taking for her compensable injuries. As noted above, she has

numerous non-compensable conditions which may have contributed to the pancreatitis.

Therefore, I am denying entitlement to pancreatitis as not being related to this claim.

[117] In his June 13, 2014 correspondence, the worker’s representative contended that there

was a causal relationship between the medications the worker took for her compensable injuries

and the development of her pancreatitis in 2014, which resulted in two periods of hospitalization

in April and June 2014. In support of his argument, the representative referred in particular to an

article contained in the Case Record at Addendum 6, page 247, entitled “Drug-induced acute

pancreatitis,” which includes a Table of “Drugs and drug classes associated with acute

pancreatitis.” 4

The representative went on to state:

Clearly, the Worker has been required to take a large quantity of medication over an

extended period of time, most of which placed her at risk for the development of

pancreatitis. She did indeed develop pancreatitis, and we submit that this was a direct

result of her compensable injury and is compensable.

[118] The medical evidence in the worker’s file confirms directly that the worker was

hospitalized from April 16 to April 21, 2014, and Dr. Sameshima’s diagnosis on discharge was

that of pancreatitis.

[119] The reason relating to the worker’s hospitalization in June 2014 is less clear. The

worker’s representative submitted, and the worker testified, that she was admitted to hospital a

second time in June 2014 for six days, again for pancreatitis. There is a June 12, 2014 Discharge

Report on file that indicates the worker attended hospital for “epigastric pain.” It is not evident in

this report as to when the worker was admitted. Dr. Gajic’s June 17, 2014 report stated the

worker was unable to work due to hospitalization on June 12, 2014, for the second time in the

4 T. Kauich, Pharm. D., Proc (Bayl Univ Med Cent) Jan 2008; 21(1) 77-81.


previous two months, however, no reason was given for either of the April or June

hospitalizations.

[120] Dr. Gajic’s report does corroborate the worker’s attendance in hospital in June 2014. This

is consistent with the testimony of the worker and the submissions of her representative that

there was a second admission in June 2014. I found the worker’s testimony in general to be

credible and credible in respect of her claimed episodes of pancreatitis. The worker’s testimony,

and the submissions of her representative, that the admission to hospital in June 2014 was due to

a recurrence of the worker’s pancreatitis. This is supported by the June 10, 2014 WT

Memorandum, in which it was noted that the worker “is back in hospital with pancreatitis [and]

... admitted on either Jun 9 or early on Jun 10/14.”

[121] Reading this evidence together, I find that the worker was diagnosed with pancreatitis in

April 2014 and that it was more likely than not that the worker’s June 2014 admission to hospital

was due to a second episode of pancreatitis.

[122] Therefore, the questions posed to the Medical Assessor are as follow:

1. Did the medications that the worker was taking for her compensable accident for

the low back, legs, and left shoulder injuries contribute to her onset of pancreatitis,

and if so, to what extent? Please explain.

2. Was the worker’s pancreatitis more likely related to factors other than the drugs she

has taken? Please support your conclusion with relevant references to the literature.

3. Can you provide any other medical information that you feel would be beneficial to

the Vice-Chair’s disposition of this appeal?

[123] Instructions to the Tribunal Medical Assessor will be confirmed in a separate memo to

the Tribunal Counsel Office. On receipt of the Assessor’s opinion, and any submissions the

worker’s representative may wish to make, a final decision on this appeal will be issued.


DISPOSITION

[124] The appeal is allowed in part, as follows:

1. The worker has initial entitlement for the left leg as a result of her compensable

accident in September 2003 and is entitled to a NEL assessment with an MMR date

of January 23, 2009.

2. The worker has initial entitlement for the right leg as a secondary condition of

overuse of the left leg as of June 24, 2008. The nature and benefits flowing from

this decision are returned to the Board, subject to the usual rights of appeal.

3. The worker does not have entitlement for the neck.

4. The worker has initial entitlement for the left shoulder as of February 1, 2007.

5. The worker is not entitled to LOE benefits from November 16, 2004 to

December 2, 2004.

6. The worker is entitled to a 2% increase in the quantum her NEL award for the low

back.

7. The worker is entitled to an increase in the quantum of her NEL award for

psychotraumatic disability from 10% to 30%.

8. The worker was incapable of succeeding in the WT program commencing in

June 2014 and was unemployable at that time. The worker’s objection to the

resumption of the program and to the suitability of the SO of Light Assembly is

allowed.

9. The worker is entitled to full LOE benefits from the lock-in date of

September 1, 2014 to the age of 65 years.

10. The worker’s appeal for entitlement to pancreatitis is deferred pending receipt of

the opinion of a Tribunal Medical Assessor and any submissions the worker’s

representative wishes to make, following which, a final decision will be rendered.

DATED: January 11, 2016

SIGNED: W. Sutton

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