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2004 ONWSIAT 309

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 128/03

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This appeal was heard in Sudbury on January 21, 2003 by a Tribunal Panel consisting of: M. Butler P.A. Barbeau R.W. Briggs : Vice-Chair, : Member representative of employers, : Member representative of workers.

THE APPEAL PROCEEDINGS

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The worker appeals the decision of Appeals Resolution Officer ("ARO") R.P. Horne dated August 28, 2001. That decision (1) concluded that the worker did not have entitlement for psychotraumatic disability; (2) confirmed the future economic loss ("FEL") quantum at the first review ("R1"); (3) altered the FEL quantum as of the May 31, 2000 date of material change to be calculated on a post-accident wage capacity of $6.85 per hour; and (4) altered the worker's labour market re-entry ("LMR") plan to that of job search training and assisted job search for a direct entry job at minimum wage. The worker appeared and was represented by his consultant, Emy Abitbol, Workers' Compensation Representative for Workers. The accident employer (the "employer") was notified of the hearing but chose not to attend. Also present was Fernand Paquette, a French language interpreter, to assist the Panel. THE RECORD

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The following were marked as exhibits at the hearing: Exhibit # 1: Case Record dated January 10, 2002 (2 volumes) Exhibit # 2: Addendum No. 1 dated December 17, 2001 Exhibit # 3: Addendum No. 2 dated June 11, 2002 Exhibit # 4: Addendum No. 3 dated August 13, 2002 Exhibit # 5: OVCR letter to Mr. Abitbol dated September 6, 2002

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The Panel heard oral evidence from the worker and Mr. Abitbol made submissions. The Panel issued Post-Hearing Memorandum No. 2 on January 31, 2003 requesting, inter alia, that the Tribunal's Medical Liaison Office ("MLO") select a French language-speaking psychiatrist (the "Medical Assessor") to carry out an assessment of the worker. MLO selected Dr. François Mai as the Medical Assessor. Tribunal Counsel Office ("TCO") prepared the following post-hearing addenda: PostHearing Addendum # 1 dated July 11, 2003 that contained, inter alia, the Panel's Post-Hearing Memorandum No. 2, an "up-to-date" report from Dr. John Crosbie, Psychiatrist, a report from

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Frank Martino, Rehabilitation Counsellor, and Dr. Mai's Medical Assessor's Report; PostHearing Addendum # 2 dated December 15, 2003 that contained, inter alia, an Assessor's Report from Dr. J. Gilles Boulais, Psychologist; and Post-Hearing Addendum # 3 dated December 22, 2003 that contained, inter alia, Mr. Abitbol's post-hearing submissions. THE ISSUES

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The Panel must decide (1) whether the worker has entitlement for psychotraumatic disability resulting from his compensable accident and (2) whether the worker is entitled to a redetermination of his FEL benefits. THE REASONS (i) Background

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There is no substantial dispute concerning many of the facts of this case and the Panel has relied on the following background information in reaching its decision. The worker was born in 1965 and began working as a painter for the employer on March 25, 1996. The following extract from the ARO's decision sets out the background of this case and the Panel has relied upon the facts as hereinafter set out.

[The worker] with seven years experience as a painter, at the age of 31 had approximately 300 lbs. of sheet metal fall onto his right leg on January 7 1997 injuring his right knee. He has had less than an uneventful recovery from this accident and is currently assessed at a 9% NEL. Multiple surgeries have occurred (4) most of which have been for arthroscopic examination and manipulation under anesthesia. He was casted for extended periods. He has had a custom brace fitted and further improvement is not anticipated. [The worker] has had difficult recovery from the injury and despite surgery still has significant restrictions sufficient to prevent a return to the pre-accident work. In June 1997 [the worker] first became involved with the Board's vocational rehabilitation services. Services closed after a short period to allow [the worker's] medical situation to stabilize. However for the purposes of determining [the worker's] Future Economic Loss of earnings or FEL it was considered [the worker] would be able to return to work as a gas station attendant or light delivery driver at wages of approximately $6.85 an hour. Additional vocational rehabilitation services now known as Labour Market Re-entry service and provided by external service providers were offered to [the worker] beginning in 1999. [The worker] expressed an interest in being retrained and after an assessment a Labour Market Re-entry Plan (LMR-P) was developed. This new plan called for a period of literacy followed by upgrading followed by formal re-training to become an addiction counsellor. As [the worker's] knee was still not to the point he could attend full time classes arrangements were made for [the worker] to do a home based study program. This home based program continued for about a year from June 1999 to early 2000. [The worker] started in a classroom setting in March 2000. Formal Labour Marker re-entry services closed during the summer of 2000 when [the worker] indicated that he could no longer continue with vocational rehabilitation efforts due to psychological disability. He is relating the psychological disability to his interactions with staff at the service provider contracted by the Board to deliver LMR services.

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The Board has denied entitlement to psycho-traumatic disability related to [the worker's] interactions with his Labour Market Re-entry services provider.

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The Claims Adjudicator advised the worker in a letter dated January 31, 2000 that the FEL first review (R1) decision would be based on the SEB plan of Community and Social Services worker-addiction worker, NOC code 4212 and that the projected earnings to be used would be the entry-level earnings of $11.00 per hour or $440.00 per week. This was to be effective from February 1, 2000 for three years. The worker's FEL benefit was calculated at $280.29 per month. The Claims Adjudicator further advised the worker that he was entitled to a FEL supplement of $1309.12 per month, as he was participating in a Board-approved program. (ii) Medical and other professional evidence

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In making our decision, we considered the medical and other professional opinions described below that were provided in the case materials: Dr. Denis Lapalme, Clinical Psychologist, prepared a Psychological Assessment of the worker on November 5, 1997 in which he advised that the worker would perform better in fields of study that were non-verbal in nature. The worker was able to understand verbal directions provided they were in fairly simple language and dealt with fairly concrete and practical subjects. Dr. Lapalme did not think that the worker would function in situations where interacting with other people verbally would be critical in the performance of the job duties. He advised that the worker had a Z-score of +1.4 (above average) in pain related disability and +2.1 (above the norm) in psychological stress as determined in the Behavioural Assessment of Pain Screening Instrument (BAPSI) and he felt that the worker would be a good candidate for more detailed pain assessment. Dr. Lapalme opined that, compared to chronic pain patients, the worker was suffering from higher levels of psychological distress and pain-related disability. He reported that there were significant life circumstances that could be associated with the worker's elevated scores. Dr. Lapalme felt that the worker's concerns about the stability of his income, as he was on a compensation claim, and because he is married, has children and a mortgage would have contributed to the elevated scores. In his letter to the Board of November 13, 1997, Dr. Lapalme felt that that the worker could receive some help from physiotherapy and possibly from a medical perspective and that it was important that those issues continue to be explored. He also reported that the worker was functioning at a "fairly low level" from an academic standard. The worker functioned at a Grade 3/Grade 4 level, which made him "quite illiterate in certain functions." Dr. Brenda Caloyannis, the worker's Family Physician, reported to the Board in her letter of June 28, 2000 that the worker had reported "such torment over ongoing harassment" from the service provider that he was sleepless and anxious. She prescribed Doxepine for his sleep to complement his analgesic. Dr. John C.F. Crosbie, Psychiatrist, reported to Dr. Hickman at the Board on July 10, 2000, advising that he had seen the worker in the outpatient clinic that day at the urgent request of Dr. Caloyannis. Dr. Crosbie gave the following insight as to what the worker's concerns were:

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Difficulties arose initially two days after his first surgery when the Board called him to tell him to go back to work. He subsequently indicates that he received a call from a staff member at the Board to advise him that it would be better for him if he went back to Gaspé where he was born. He had requested that he be educated in his primary language, French, and indicates that there was a good deal of pressure for him to take his classes in English. However, he was ultimately given the opportunity to return for upgrading in French and began his schooling in March 2000. At this point I understand that a rehabilitation agency was contracted by the Board to supervise him and the patient has a number of concerns arising from this. He states that on his first day of school he was told, "Why are you wasting your time? Why don't [you] just pump gas?" He has had problems in obtaining financing for the textbooks he required and for the gasoline, which he used to get to his classes. The patient told me further that his immediate supervisor was attending the school once a week and this was more frequently than he had expected so that an irritation arose between the patient and the worker [i.e. his immediate supervisor] whereby he ultimately complained about this person. He had found that he was preoccupied constantly with worries about his status regarding his rehabilitation. He became irritable and harboured angry feelings towards the supervisor and latterly has been avoiding talking to people from the Board or from the Rehabilitation Service since he finds their approach to him extremely critical and stressful. His wife has also, according to the patient, felt the same stress and she left the home for a week recently.

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Dr. Crosbie reported that the worker had extreme anxiety and was readily moved to tears and wept in the office. The worker had symptoms of depression and Dr. Crosbie felt that they were almost certainly a direct result of the difficulties the worker outlined. There was no evidence of psychosis and there was no history of any psychiatric problem prior to the accident. Dr. Crosbie opined that the rehabilitation was going badly and the worker appeared to be at the limit of his tolerance. He asked that Dr. Hickman make inquiries into the circumstances and assist the worker to clarify his program. Dr. Ivan de Domenico, Board Medical Consultant, noted in Memo # 129 dated August 4, 2000 that Dr. Crosbie had reported that the worker was not well enough to return to his classes and was suffering from a severe anxiety. Dr. de Domenico wrote that it seemed to be clear that the worker's anxiety was the result of his being unable to cope with the educational program and he felt that the services of a psychologist would be in order. Dr. Crosbie reported to the Board in a letter dated August 22, 2000 in which he advised the worker's DSM IV Diagnostic code as:

Axis I - Adjustment disorder with mixed anxiety and depressed mood Axis II - Nil Axis III - History of injury to his right leg Axis IV - Ongoing stressors at the rehabilitation program, significant Axis V - Marked impairment of psychosocial functioning. GAF: 45

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Dr. Crosbie opined that the stress of the worker's rehabilitation program had caused those symptoms, as the worker had no previous history of any psychiatric problem and no family history of any psychiatric problems. He recommended against continuing with the academic program at that time.

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Dr. Robert S. Hickman, Board Medical Consultant, advised the Claims Adjudicator in Memo # 133 dated September 1, 2000 that he could find no acute psychotraumatic stress that would meet the Board's criteria for accepting stress in the workplace. Although the worker might have been experiencing stress, Dr. Hickman opined that it was not a form that was compensable under the applicable legislation. Dr. Crosbie replied to Mr. Abitbol's request for information on April 8, 2001, as follows:

Thank you for your letter of March 5th 2001 concerning the above-named patient. It is my opinion that the patient does have a psychotraumatic disability as defined under the Board policy and quoted in your letter of reference "psychotraumatic disability is shown to be related to extended disablement to non-medical socio-economic factors, the majority of which are related to the work-related injury". As far as I can determine, this patient was well until the accident approximately 3½ years ago described in the initial note of July 10th 2000. The patient suffered physical problems as a result of that accident and I understand that his work history prior to then was satisfactory. He reported to me that he had missed no time at work prior to the accident. He would not, therefore, have begun any rehabilitative schooling had he not been injured in the first place. He had difficulties, as had been described in the original note of July 10th 2000, in coping with his schoolwork, and in addition alleges that the rehabilitative staff were critical of him, and these were perceived as being stressful for him also. Currently, additional psychosocial stressors are those of his concern regarding his future, and financial difficulties. I have seen this patient on the following dates: August 28th, September 12th, 2000, January 25th and March 26th, 2001. A further appointment is schedu1ed for May 28, 2001. The DSM IV diagnostic code has not changed since August 26th - GAF 45. In reference to the Global Assessment of Functioning scale included in the DSM IV, the patient, with this score, has "serious symptoms, e.g. suicidal ideation or any serious impairment in social, occupational, school functioning" and I think that the patient fits this category. He was not able to continue with his academic rehabilitation because of the intense anxiety that he had developed in regard to his participation in the program. I would like to think that the patient would be able to participate in a graduated job search, which would be sedentary and non-stressful. I do not believe that he has been able to return to any work up until this time. Unfortunately, although he is not meeting with the caseworkers who allegedly caused him distress, his symptoms persist and this is not uncommon....

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Dr. A. Corradini, Board Psychologist, Clinical Services Branch, wrote Memo # 142 to the ARO on May 24, 2001, in which he opined that rehabilitation activities were not really related to extended disablement as rehabilitation is designed to end extended disablement. Dr. Corradini felt that the worker had a psychological reaction in the form of an adjustment disorder as a consequence of his involvement with the rehabilitation program. He did not think that there were provisions for this type of reaction under the psychotraumatic disability policy and he could not recommend psychiatric entitlement in this case. Medical and other professional evidence obtained post-Hearing

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Dr. Crosbie replied to TCO's request of February 13, 2003 for an updated report on the worker on February 24, 2003 as follows:

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Thank you for your letter of February 13, 2003 regarding the [worker]. I will try to summarize this patient's attendance here and enclose a copy of two consultation notes written to two different family physicians. The note of July 10, 2000 will indicate his primary presentation here, where he described anxiety and symptoms of depression. There was no evidence of psychosis and the patient was complaintive of ongoing stress. He had made attempts he said to return to upgrading under the auspices of the Workplace Safety and Insurance Board, but was not successful to do this. Prior to his accident, there was no history of any psychiatric problem, nor any family psychiatric history. Indeed, he gave the information that he had an impeccable health record and a good work record until three years before I saw him. He was followed in the outpatient clinic through to November of 2001. I had seen [the worker] on that date. I found him to be stable psychiatrically. He was not showing any severe anxiety or depressive symptomatology at that time and was hopeful of maintaining his stability. He told me that he had had a meeting with WSIB representatives and was asked to maintain himself on a combination of Paxil 30 mg each morning and Seroquel 25 mg hs for the time being. His attendance here was discontinued at that point. He was re-referred by Dr. Caloyannis on December 20, 2002 with the information that since Dr. Caloyannis was retiring, his new family physician would be Dr. McAlister. You will find enclosed a copy of the letter to Dr. McAlister dated December 20, 2002. As before, he presented with anxiety and some depression. There was no evidence of psychosis and no evidence of expressions of hopelessness or threat of self-injury. I recommended that he re-start an antidepressant and on this occasion I have chosen the Citalopram to be combined with Seroquel at bedtime since he does not sleep well. He has ongoing pain, which is primarily on the medial side of his right knee, radiating down the medial side of the tower limb, as far as the right ankle and this is worsened if he is weight bearing on that limb. I saw him for follow-up on January 28, 2003. He indicated that he was stressed because he had to attend a meeting with the compensation board [the Tribunal hearing] in order to clarify his claim. He was unhappy with the [conclusions], specifically since they wanted him to return to school again. To be fair to the man, I do not think that he is capable of benefiting from that plan. I have increased the Citalopram to 40 mg each morning and the Seroquel to 100 mg hs. In summary, his current symptoms, which are approximately equal in severity to those when he first attended are of anxiety and depression. A formal mental examination shows him to be both anxious and depressed in his mood. He is concerned about his difficulties in achieving some type of stability for his life, but without self-criticism, with some feelings of hopelessness, but without thoughts of suicide. Orientation is correct. Memory is grossly normal. There is no evidence of formal thought disorder, delusions or hallucinations. His sleep is disturbed whereby he finds it hard to get to sleep. For his pain, he is taking Tylenol #3 up to 2 per day. Diagnostic formulation is as follows: Axis I - Major Depressive Disorder due to a medical condition, with associated anxiety Axis II - Deferred Axis III - Chronic pain from a previous injury, right lower limb Axis IV - Ongoing severe stressors (financial) Axis V - GAF: 45

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Decision No. 128/03

On the recommendations from MLO, the Panel requested an opinion from Frank Martino, Rehabilitation Counsellor, to identify any particular barriers to academic or vocational upgrading or training that the worker may have and whether Mr. Martino was able to identify any particular skills or abilities that the worker might have. Mr. Martino, a graduate of the University of Toronto where he obtained an Honours Degree with a specialty in Sociology, studied Psychology at the Alfred Adler Institute. He is a qualified Canadian Certified Rehabilitation Counsellor ("CCRC") and is registered with the Commission on Rehabilitation Counsellor Certification, is a Registered Rehabilitation Professional ("RRP") with the Canadian Association of Rehabilitation Professionals ("CARP") and is certified and registered with the American Board of Disability Analysts ("ABDA"). He is the Principal and Managing Director of Rehabilitation Network Canada Inc., Consulting Director of Canadian Assessment Network Inc., Rehabilitation Consultant to the Scarborough North Multi-Disciplinary Assessment Centre ("DAC"), and Vocational Consultant to the Tribunal. After reviewing the file, but not having interviewed the worker or done an assessment of the worker, Mr. Martino responded to the Panel's questions in a report to the Tribunal of May 14, 2003. The following are the Panel's questions to Mr. Martino and his responses: Question 1. Based on a file review, are you able to identify any particular barriers to academic or vocational upgrading or training, which the worker may have. Are you able to identify any particular skills or abilities he may have? Please explain. Answer:

a) There are many significant, yet basic, indicators to barriers from the very outset. These barriers, having not been dealt with, would most certainly lead to the all [too] predictable demise of academic, vocational upgrading or training. Firstly, the chosen SEB of Addiction Counsellor is not born out by the Psychological assessment carried out in the fall of 1997. Regard for tested aptitudes and interests do not appear to have been thoroughly screened for by the assessing Case Manager concerned. In essence, the program was doomed to certain failure on the basis of many key indicators which did not adequately address the Worker's expressed concerns. Concerns as basic as the desire to maintain "one's pride in remaining French" is a strongly asserted worker value, which appears to have been dismissed. The documented Psychological testing of 1997, which attests to a fairly low level of academic functioning would certainly beg the question if there was some underlying learning disability (LD) when looked at in combination with the Worker's early leave from formal education and absence of bilingualism into his early 30's. Unfortunately, these very obvious and important cues have not been explored to the extent they should have otherwise been dealt with. b) The aptitude and interest testing, as conducted in 1997 given varied life experiences and insights acquired since, merit re-testing. The information on file is as such considered otherwise dated and would not be deemed acceptable under the circumstance to conclude upon more definitively. Likewise, a current functional abilities evaluation is required given the passage of time to ensure the required matching of physical functioning with aptitude and interests prior to concluding upon SEB's.

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Question 2. Are you able to determine any particular SEB, which would be appropriate for this worker, given the information in the case materials? Please explain.

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Decision No. 128/03

No particular alternate SEB can be concluded upon at this time, for reasons as stated above. Furthermore, the appropriateness of the SEB, as sponsored by the WSIB and advocated for the LMR service provider is lacking in rationale based on the documentation available for my review, as provided by the tribunal.

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Question 3. In your opinion, would further psychological-vocational testing be of value at this time, in clarifying any particular abilities, or barriers to learning that the worker may have? Answer.

As previously commented upon, further Psychovocational testing, in combination with a full Learning Assessment is both necessary and prudent prior to determining any further plan of vocational rehabilitation. By so doing, the Worker's current level of training, education and experience can be examined fully with due regard for barriers (i.e. L.D's) prior to concluding on the likelihood of a suitable SEB.

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Question 4. If so, are you able to recommend any particular person or facility in the Ottawa area to carry out any such testing? Mr. Martino recommended Dr. Gilles Boulais and Dr. Anne Boland as French-speaking psychologists registered with the Ontario Psychological Association in Ottawa who specialize in Psychovocational testing to carry out the Panel's request of testing the worker. Question 5. Is there any other information, which you feel would be of assistance to the Panel and parties, regarding the possibility of facilitating a return to work, or the potential for the development of an LMR program? Answer.

It has been some six (6) years since the date of accident. Research studies specific to Canadians with disabilities as produced by social union entitled In Unison: A Canadian Approach to Disability Issues indicates that in terms of employment, persons with disabilities have a lower rate of employment. The study indicates that those with mild disabilities make up 71 percent of the population of people with disabilities who are in the active labour force. Given he is relatively young at 37 years of age, and based on his experiences to date, the need to access motivation and direct appropriate pre-vocational activities will be pivotal in achieving success. Activities to address his, "lack of trust in the process", given the circumstance, will require vocational rehabilitation counselling. [The worker] should be provided with all available means to have a comprehensive vocational rehabilitation plan fully developed with a view to mitigate his employability.

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Mr. Martino concluded his report with the following Summary:

In summary, [the worker] is currently six (6) years post-accident. His current circumstances can be attributed to a lack of due regard for vocational barriers having not been adequately explored, notwithstanding they were clearly evident from the outset. The negligent early management, from a vocational rehabilitation planning point of view, has failed to exercise due process to address barriers. This has resulted in further compromising chances of what could have been an opportunity for this young man postaccident to have successfully rehabilitated and maintained a level of dignity and selfesteem.

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[The worker] would benefit from the services of a Certified Vocational Rehabilitation Counsellor, as opposed to a Case Manager, to ensure his concerns will be adequately and ethically dealt with. It is conceivable the acknowledgment of a severely flawed vocational plan as may be rendered by the Appeals Tribunal will serve in part as a stepping stone for the healing process ahead should vocational rehabilitation have any hope of a favourable outcome in the future. This, however, in itself can be no guarantee without proceeding prudently and ensuring full due process to vocational rehabilitation is exercised having ample regard for anticipated barriers ahead.

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Dr. Mai, the Medical Assessor selected by MLO, carried out an independent psychiatric assessment of the worker in the French language on June 25, 2003. Dr. Mai is a psychiatrist whose credentials include having been Professor, Departments of Psychiatry and Medicine, University of Western Ontario; Full Professor, Departments of Psychiatry and Medicine, The University of Ottawa School of Medicine; Chief, Department of Psychiatry, Ottawa General Hospital, and Staff Psychiatrist, Ottawa General Hospital. His publications, mainly in the field of Psychosomatic Medicine and Consultation Liaison Psychiatry include 2 book chapters, 51 peer-reviewed journals and 56 non-peer-reviewed journals. He has made numerous presentations at professional meetings. The following are the Panel's questions and Dr. Mai's responses, as set out in his Medical Assessor's Report of July 7, 2003. Question 1. Do you agree with the diagnosis provided by Dr. Crosbie? If not, what is the most likely diagnosis? Please explain. Answer.

My Axis I diagnosis is that [the worker] has a chronic adjustment disorder with some depressive symptoms. I make this diagnosis because I consider that his symptoms are arising from what was originally a fairly minor injury but which was associated with prolonged and complex problems related to his rehabilitation, and which has lead to his adoption of illness-behaviour. I believe that these symptoms are maintained because of the non-resolution of these rehabilitation issues. I do not consider that he has a major depression.

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Question 2. In your opinion, is the worker's intense anxiety the result of his reaction to the vocational rehabilitation process? Please explain. Answer.

I do consider that his symptoms of anxiety are a reaction to the vocational rehabilitation process, I state this because of the fact that he continues to harbor feelings of anger and resentment according to what he feels are the inappropriate recommendations and attitudes of some of the workers that he dealt with. I must explain that this is not necessarily a comment on what actually happened because I am only getting one side of the story, that is, from [the worker] himself. I am not aware of the extent to which his allegations are justified or not.

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Question 3. Are you able to identify other factors that contributed to the onset or maintenance of the worker's condition?

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Other factors, which contributed to the onset and maintenance of his problems, are his limited intellectual background and limited education. A further contributory factor is related to his limited grasp of English and a limited capacity to benefit from educational opportunities in that language.

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Question 4. What, in your view, are the worker's psychological barriers to reintegrating into the workplace? Please explain. Answer.

Factors which are barriers to him being reintegrated into the work place, are related to a perceived sense of injustice and a "victim attitude" to the events that occurred surrounding his rehabilitation. Because of his limited cognitive capacity and learning ability these act as further barriers to his reintegrating into the workforce.

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Question 5. In your opinion, can the psychological barriers for integrating the worker into the workplace be overcome? Answer.

I did not consider that the psychological barriers to integrating him back into the workforce can be overcome in the short term. In the longer term, if he could overcome the above-mentioned victim attitude, and become more self-motivated, rehabilitation may be more successful.

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Question 6. What treatment plan do you recommend in order that the worker can overcome these barriers? Please explain. Answer.

I do not believe that he is likely to benefit from further conventional medical treatment at present. My recommendation would be that he resolve the various social and legal issues surrounding his disability and that he be reassessed both medically and psychiatrically in 12 to 18 months time. Hopefully by that time he will have resolved his perceived sense of injustice and will then be motivated to initiate a rehabilitation program himself.

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Question 7. Is there any other medical information that you feel would be of assistance to the Panel and the parties in understanding the nature and aetiology of the worker's condition? Answer.

I do not consider that any further medical information is required to understand the nature and etiology of his condition.

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In order to determine whether there might be suitable and available employment for the worker, the Panel considered and accepted Mr. Martino's recommendation that the worker should undergo a full learning assessment prior to determining any further LMR plan. Mr. Martino recommended that either Dr. Boulais or Dr. Boland conduct the necessary testing in the French language.

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Dr. J. Gilles Boulais, a Clinical Psychologist, was selected by MLO to carry out the psychovocational testing and report back to the Panel. Dr. Boulais interviewed and tested the worker on September 8 and 9, and October 20 and 21, 2003. Dr. Boulais' credentials include receiving a Ph.D. in Clinical Psychology and he has more than 25 years of experience as a selfemployed consulting psychologist, trainer/coach and adult educator. Dr. Boulais has lectured at the Doctoral level in Professional Psychology and has given courses in Diagnostic Systems, Professional Ethics and Assessment of Personality. He was a Presidential Officer of the Ontario Psychological Association from 1983 to 1985 and was elected a Fellow of the Canadian Psychological Association in 1988 for Distinguished Contributions to the advancement of the profession. Dr. Boulais' report of December 7, 2003 was submitted with a caution as to confidentiality and use. Accordingly, only the most relevant findings and recommendations are summarized below. The Board is urged to review Dr. Boulais' report with the cautions that Dr. Boulais has submitted. Dr. Boulais determined that the worker performed poorly on the EVIP test ­ designed to measure receptive language skills and vocabulary ­ and the EIHM test ­ a French language test quite similarly constructed to the WAIS-III test. The worker scored below the 1st percentile on both tests. Dr. Boulais found the worker to feel aggrieved and terrified. Dr. Boulais reported that the worker has experienced traumatic events and significant reversals that precipitated depression, fearfulness and moderate to severe anxiety. Dr. Boulais attributed the events to include the worker's disentitlement and protracted battle with the Board, the alleged harassment by Board subcontractors, his struggle to get his needs for French language education recognized and the unrelenting contacts from the appointed tutor, among other issues. Dr. Boulais felt that major depression was evident in the clinical picture. The worker's outlook is pessimistic and he feels unappreciated. His self-esteem is in tatters. Dr. Boulais recommended the urgent need for effective treatment in order to avoid further deterioration in his health. Dr. Boulais thought that a day psychiatric program should be considered to stabilize his mood and desensitise him so that he would approach literacy training with less fear, apprehension and hostility. Dr. Boulais recommended against a psychovocational assessment at this time because the worker's major depression needs to be treated first. He felt the worker's occupational plans could be explored after treatment and literacy training. He opined that the sequelae of physical injury and psychopathology render the worker unfit to work and that the worker is unfit to perform any work at this time. He recommended that the worker be reviewed in 12 to 18 months to determine if he is fit for literacy training or should be psychiatrically pensioned by Canada Disability Pension. (iii) The worker's testimony

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The worker advised the Panel that he attended a normal school, a "polyvalente" in Quebec until the age of 17. He said that he was in a special class - a class for those with trouble learning - and he went to Grade 7. He confirmed that he had trouble learning in school and that he had

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failed "a few grades". He said that he did not think that he could function well where interactivity with other people is critical because he had "no education at all".

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The worker denied that he was ever sent to a pain clinic for his pain evaluation. He said that the psychological stress he suffered from was the pain in his leg and the stress of not being able to work and bring home money. His wife was not working at the time. The worker attributed the reasons for seeing Dr. Crosbie to being at the "end of his line." He felt that he could no longer operate, he could not sleep and he always felt like crying. Furthermore, he attributed his problems to his schooling, to all of the people who represented the Board and to the changes that were brought about in his life after the accident. The worker explained to the Panel that he does understand the English language if what is said to him is delivered slowly. He pointed out that the upgrading courses he was offered in French were not at the college level and he was placed in a special class with slow learners. He agreed that his English was such that, if working as a gas bar attendant, he could ask patrons what kind of gas they wanted and tell them how much money they owed. However, he advised, he did not think that he could work as a gas bar attendant, as he could not remain standing because of his leg and he is under a lot of medication. The worker said that he has seen Dr. Crosbie between 12 and 14 times since April 8, 2001. He has discussed his problems with Dr. Crosbie and Dr. Crosbie gives him antidepressants and medication that help him sleep. The worker denied that he had ever consulted a doctor prior to his workplace accident or that he had ever taken a pill for anything, including a headache. The worker said that the situation has created some problems at home. His wife did not work before the accident and he was the breadwinner. He said that his relationship with his wife has suffered as a result of the accident and he described his relationship with his children as 100 percent before the accident. He said that he was an active father, playing with the children, going to the park and doing lots of things. The worker said that prior to the accident he participated in a lot of activities that included skating, cycling, fishing, going on a 4-wheeler, skiing and a lot of walking. He does not do anything now because of his condition and he has a hard time coping with the noise that the children make. He has no patience like he had before. The worker described his relationship with the Board and the service provider. He said that he was told that he should move back to Quebec because he does not understand English. He said that he instructed his family not to answer the telephone because the Board officials and his teacher (tutor) called every day. His teacher wanted to come and teach him at home. He told the teacher that he had a life. He said that he had to call the police to get his teacher to stop calling him. The worker explained that the Board recommended his teacher and the teacher was to come to his home. The worker confirmed that he did not go back to school because he could not take it anymore. He advised the Panel that Dr. Crosbie told him that Dr. Crosbie did not believe he could go back to school.

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The worker described the incident that arose when D.R., from the contracted service provider, came to see him at school. The worker said that initially D.R. was to come to the school to see him once a month but he actually showed up once a week. He said that D.R. asked him why would he not quit school and go to work at a theatre or a gas bar. He told D.R. to stop harassing him. The worker said that he became disruptive at school because he got angry and told his teacher that the next time D.R. came in, he would "fix his face." The worker felt that D.R. was pushing him because he wanted the worker to start at College Boreal. The worker did not feel that he could take an English course at Cambrian College because he did not know enough to even be taking a program in French. He said that taking the upgrading program was "not in" him. He was told that he would have to take upgrading for five years before he could go to College Boreal. The worker stated that he did not trust anybody at the Board. He said that he was not willing to go back to school even if a new program could be developed for him. He confirmed that he has the mental capacity to understand the consequences of making that decision. He denied that he is willing to participate in psychological counselling or social rehabilitation counselling. The worker confirmed that he no longer wished any communication that he had previously requested through his local Member of Provincial Parliament. He no longer wants communication with his former representative. (iv) (a) Mr. Abitbol's submissions At the hearing

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[63]

Mr. Abitbol submitted that the worker's LMR plan was a very ambitious program. However, Mr. Abitbol questioned whether the worker was employable as a security guard. He pointed out that the worker enjoyed life before the accident and that the worker was not making any claim to have his NEL award reassessed. Mr. Abitbol referred to Document No. 03-03-03 of the Board's Operational Policy Manual ("OPM"). He argued that the worker has suffered a reaction to the treatment process that has resulted in extensive disability. He pointed out that the worker's disability is non-medical but has socio-economic factors, as evidenced by the worker's relationship with his wife and children, the majority of which can be related to the compensable accident. Mr. Abitbol referred to Dr. Crosbie's letter to him of April 8, 2001 in which Dr. Crosbie opined that the worker has a psychotraumatic disability as defined under the Board policy, the worker had difficulties in coping with his schoolwork, the worker was well until he had the accident and the worker would not have begun rehabilitative schooling had he not been injured in the first place. Thus, Mr. Abitbol argued, there is an indirect link resulting from the worker's physical injury and the worker would not have been in a rehabilitation program but for the injury, as Dr. Crosbie has pointed out. The worker had difficulty with the schoolwork and that is reflective of his schooling history, having completed Grade 7 at 17 years of age. The worker evidently had difficulty with schoolwork in his vocational rehabilitation ("VR") plan.

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Mr. Abitbol noted that Dr. de Domenico had reported in Memo # 129 that the worker's anxiety was as a result of his being unable to cope with the educational program. Mr. Abitbol argued that Memo # 129 was the first indication of a psychotraumatic disability and the Board's medical doctors' opinions should be given more weight than Dr. Corradini's (psychologist) opinion. Mr. Abitbol posed the question of whether VR treatment could cause psychotraumatic disability. He noted that the policy refers to "treatment process" but the policy does not differentiate medical treatment from vocational treatment. He referred to the legislation as providing for both medical rehabilitation and vocational rehabilitation. He therefore submitted that the worker's VR treatment process caused the worker's psychotraumatic disability. The worker went back to school and did not have the support he required. Mr. Abitbol argued that the service provider was more interested in setting target dates and suggested to the worker that he should go and pump gas. Mr. Abitbol referred to Dr. Lapalme's Psychological Assessment Report of November 5, 1997 in which Dr. Lapalme reported that the worker was suffering from higher levels of psychological stress and pain-related disability. He noted that under the Early Recognition guidelines set out in OPM Document 03-03-03, the Board has a responsibility for recognizing a psychotraumatic disability condition and requires the Board to consider VR reports and all medical documentation. Thus, he argued, there was an early recognition of the worker's stress when Dr. Lapalme identified the worker's psychological distress level at +2.1 and reported that the worker was suffering from higher levels of psychological distress and pain related disability. Dr. Lapalme referred to there being significant life circumstances that could be elevated with the worker's elevated test scores. Mr. Abitbol referred to the worker's testimony that he was concerned about his income, that his wife had to go back to work and that she had never worked before. He noted that Memo # 112 dated April 28, 2000 (author not identified) records that the worker was already reporting stress and did not want to work with his caseworker any longer. This shows, Mr. Abitbol argued, that the worker was already having stress from the beginning of his schooling, not as school was progressing. In support of his argument that the worker's VR caused his psychotraumatic disorder and is therefore compensable, Mr. Abitbol referred to Decision No. 1580/99I, wherein the Panel in that case concluded that the worker suffered a psychotraumatic disability as a result of her injuries and the consequences of the injuries, including the worker's perception of abuse and harassment by the Board. Mr. Abitbol argued that, similarly in this case, there is a perception that the worker was harassed and mistreated by the service provider and that caused a psychotraumatic disability. He argued that "perception" is grounds for entitlement in this case. Noting that there were no other possible contributors, Mr. Abitbol argued that there was no other reason for the worker to have a psychotraumatic disability. Mr. Abitbol noted that the ARO had asked the Board's consulting psychiatrists or psychologists to review the file and Dr. Crosbie's reports and to comment as to whether the worker's psychological disability was in whole or in part due to his extended disability and failed treatment and/or socio-economic stressors due to the work accident or its sequelae.

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Dr. Corradini replied to the ARO in Memo # 142 dated May 24, 2001 that Dr. Crosbie indicated that the stress of the rehabilitation program had caused the worker's problems.

[72]

Mr. Abitbol submitted that the worker's claim for psychotraumatic disability falls under the "thin skull" doctrine that the Tribunal has recognized in its decisions. The worker's reactions were due to his extended disability, the failed treatment and to the socio-economic stressors. Mr. Abitbol referred to Decisions No. 90/00, 387/01, 63/95 and 2772/01 in support of his submissions. He pointed out that the worker's claim is not that it arose out of the VR process only. The difficulties in the worker's schooling program caused a psychotraumatic aggravation and necessitated the worker to see a psychiatrist. Mr. Abitbol argued, with respect to the worker's claim for a FEL R1 review as of February 1, 2000, that his entitlement depends on the worker's employability. The Board determined that the worker could work as a security guard. However, Dr. Crosbie advised that the worker could not work at anything. Moreover the worker had physical limitations that resulted from his knee injury. If the worker were recognized for a psychotraumatic disability, he would be entitled to a review as a material change. Mr. Abitbol argued that the date of material change should be determined as of July 2000, when Dr. Crosbie did his initial report. That, he argued, would coincide with the date the worker stopped attending school. Dr. Crosbie opined that the worker was unable to return to work on April 8, 2001. The worker should therefore be determined to be 100 percent disabled. Mr. Abitbol compared the worker's situation in this case to the worker's situation in Decision No. 387/01, wherein that worker was entitled to compensation for his major depressive disorder and it was determined that his workplace accident made a significant contribution. He noted that the worker in that case was given a 100 percent FEL benefit at R1. He also noted that the worker in Decision No. 2772/01, who had a limited ability to learn with a very low degree of interest in school work and academic subjects, limited transferable skills and was determined to be unlikely to secure any type of remunerative employment as of R1, was entitled to a 100 percent FEL benefit at R1. Mr Abitbol concluded his submissions by arguing that the worker has met the criteria of the Board's policy for psychotraumatic disability and the disability has been as a result of his workplace accident. The worker is unable to return to work at this time, although the worker hopes to be able to work in the future. (b) Post-hearing submissions

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Mr. Abitbol referred to various extracts from Mr. Martino's and Dr. Boulais' reports. In particular Mr. Abitbol pointed out his concern for the worker's immediate family and asked that the Panel's decision be rendered as quickly as possible in order that the worker will be able to have closure and get on with his existence as best as possible. Mr. Abitbol submitted that the system failed the worker and, in particular, the system failed to professionally consider the worker's "personal and vocational characteristics" as it related to the VR/LMR services and the Board's lack of detailed attention to it. He argued that the Board's management of the LMR file was negligent, particularly in view of the worker's functional

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illiteracy and the design towards rehabilitation. He further argued that there exists a significant nexus between the worker's LMR experience and his psychological state and that continues to this date. He noted that the suggestions by the service provider that the worker "return to the Gaspé" and/or "pump gas" had clearly affected any rehabilitation potential from the Board to the worker. He noted from Dr. Boulais' report that the worker is functioning "as a four-year-old Francophone", the lack of regard for the worker's French language issue and the lack of regard for the worker's self-esteem issues. He referred to the recommendations in post-hearing evidence that the worker does not have the capacity to return to work and the recommendations that effective treatment is urgent in order to avoid any further deterioration of his health. (v)

[79]

Relevant law and policy

Because the worker was injured on March 25, 1996, the pre-1997 Workers' Compensation Act is applicable to this appeal. The hearing of this appeal commenced after January 1, 1998, therefore certain provisions of the Workplace Safety and Insurance Act, 1997 ("WSIA") also apply to this appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated. Pursuant to section 126 of the WSIA, the Board stated that the following policy packages are applicable to this appeal and we have considered these policies as necessary in deciding the issues in this appeal.

Package # 30 - Decision Making/Benefit of Doubt/Merits and Justice Package # 64 - Psychotraumatic/Chronic Pain Disability - DOA January 2, 1990 to December 31, 1997 Package # 66 - FEL Decision - as of January 1, 1998 Package # 198 - Material Change in Circumstances - Worker

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OPM Document No. 03-03-03 sets out the Board's policy for psychotraumatic disability. The Guidelines of that document are as follows:

Policy A worker is entitled to benefits when disability results from a work related personal injury by accident. Disability includes both physical and emotional disability. Guidelines General Rule If it is evident that a diagnosis of a psychotraumatic disability is attributable to a workrelated injury, entitlement is granted providing the psychotraumatic disability became manifest within 5 years of the injury, or within 5 years of the last surgical procedure. Psychotraumatic disability is considered to be a temporary condition. Only in exceptional circumstances is this type of disability accepted as a permanent condition. Psychotraumatic Disability Entitlement Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop. · Organic brain syndrome secondary to - traumatic head injury - toxic chemicals including gases - hypoxic conditions, or - conditions related to decompression sickness.

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· As an indirect result of a physical injury - emotional reaction to the accident or injury - severe physical disability, or - reaction to the treatment process.

Decision No. 128/03

·

The psychotraumatic disability is shown to be 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 injury. ... Early Recognition The decision-maker and the Medical Advisor are responsible for recognizing cases where a psychotraumatic condition develops. The decision-maker reviews all reports, such as: · · · · Worker's Progress report, Form 41 Doctor's Progress report, Form 26 Vocational Rehabilitation reports, Forms 589 and 1754, and all medical documentation, watching for the following information: ...

(vi)

[82]

Conclusions

Issue # 1- Entitlement to a psychotraumatic disability award OPM Document No. 03-03-03 provides that entitlement for psychotraumatic disability may be established when the psychotraumatic disability is an indirect result of a physical injury, including the reaction to the treatment process, or where it is shown to be 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 injury. The Panel finds the evidence to be overwhelming in support of the worker's claim for psychotraumatic disability arising out of the accident and concludes that the worker has met the criteria set out in Document No. 03-03-03. A review of the evidence shows that: · Dr. Lapalme's Psychological Assessment of the worker on November 5, 1997 determined that the worker would perform better in fields of study that were non-verbal in nature. The worker was able to understand verbal directions provided they were in fairly simple language and dealt with fairly concrete and practical subjects. Dr. Lapalme did not think the worker would function in situations where interacting with other people verbally would be critical in the performance of the job duties. Dr. Lapalme opined that, compared to chronic pain patients, the worker was suffering from higher levels of psychological distress and pain-related disability. He reported that there were significant life circumstances that could be associated with the worker's elevated scores. In his letter to the Board of November 13, 1997, Dr. Lapalme reported that the worker was functioning at a "fairly low level" from an academic standard. The worker functioned at a Grade 3/Grade 4 level, which made him "quite illiterate in certain functions." Dr. Caloyannis reported to the Board on June 28, 2000 that the worker had reported "such torment over ongoing harassment" from the service provider that he was sleepless and anxious.

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In his report to Dr. Hickman of July 10, 2000, Dr. Crosbie gave an insight as to what the worker's concerns were. He advised that difficulties arose initially two days after the worker's first surgery when the Board called him to tell him to go back to work. The worker subsequently received a call from a staff member at the Board to advise him that it would be better for him if he went back to Gaspé where he was born. The worker had requested that he be educated in French and indicated to Dr. Crosbie that there was a good deal of pressure for him to take his classes in English. The service provider contracted by the Board allegedly asked the worker, "Why are you wasting your time? Why don't [you] just pump gas?" The worker was having problems in obtaining financing for the textbooks he required and for the gasoline, which he used to get to his classes. The worker found that he was preoccupied constantly with worries about his status regarding his rehabilitation. He became irritable and harboured angry feelings towards the supervisor and latterly had been avoiding talking to people from the Board or from the service provider because he found their approach to him to be extremely critical and stressful. The worker's wife also felt the same stress and she left the home for a week at one point. Dr. Crosbie reported that the worker's symptoms of depression were almost certainly a direct result of the difficulties the worker outlined. He pointed out that prior to the accident there was no history of any psychiatric problem. Dr. Crosbie opined that the rehabilitation was going badly and the worker appeared to be at the limit of his tolerance. Dr. de Domenico wrote in Memo # 129 that it seemed to be clear that the worker's anxiety was the result of his being unable to cope with the educational program. Dr. de Domenico felt that the services of a psychologist would be in order. Dr. Crosbie opined on August 22, 2000 that the stress of the worker's rehabilitation program had caused his symptoms, as the worker had no previous history of any psychiatric problem and no family history of any psychiatric problems. He recommended against continuing with the academic program at that time. Dr. Crosbie wrote to Mr. Abitbol on April 8, 2001, opining that the worker did have a psychotraumatic disability as defined under the Board policy and it was shown to be related to extended disablement due to non-medical socio-economic factors, the majority of which are related to the work-related injury. Dr. Crosbie felt that the worker fit the category of having "serious symptoms, e.g. suicidal ideation or any serious impairment in social, occupational, school functioning". Dr. Crosbie did not think that the worker was able to continue with his academic rehabilitation because of the intense anxiety that he had developed in regard to his participation in the program. He felt that the worker would have been able to participate in a graduated job search, which would be sedentary and nonstressful. He did not believe that the worker was able to return to any work up until that time. Moreover, the worker's symptoms persisted. Dr. Crosbie did not think that was uncommon. Dr. Crosbie in his post-hearing report to the Tribunal of February 13, 2003 added that he did not think the worker would benefit from a further return to school. Mr. Martino opined in his report of May 14, 2003 that the chosen SEB of Addiction Counsellor was not borne out by the Psychological assessment carried out in the fall of 1997. He did not feel that the worker appeared to have been thoroughly screened by the

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assessing Case Manager. He felt that the worker's program was doomed to certain failure on the basis that many key indicators did not adequately address the worker's expressed concerns. He opined that the psychological testing of 1997, which attested to a fairly low level of academic functioning, would certainly beg the question of whether there was some underlying learning disability when considering the worker's early leave from formal education and an absence of bilingualism into his early 30's. Mr. Martino felt that those very obvious and important cues had not been explored to the extent they should have otherwise been dealt with. He opined that the appropriateness of the SEB, as sponsored by the WSIB and advocated by the LMR service provider, was lacking in rationale. · Mr. Martino felt that the negligent early management of the worker's VR program had failed to exercise due process to address barriers and that had resulted in further compromising chances of what could have been an opportunity for the worker to have successfully rehabilitated and maintained a level of dignity and self-esteem. Dr. Mai opined on July 7, 2003 that his Axis I diagnosis was that the worker had a chronic adjustment disorder with some depressive symptoms. He made this diagnosis on the basis that the worker's symptoms were arising from what was originally a fairly minor injury but which was associated with prolonged and complex problems related to his rehabilitation, and which led to the worker's adoption of illness-behaviour. Dr. Mai believed that the worker's symptoms were maintained because of the non-resolution of the rehabilitation issues. Dr. Mai considered the worker's symptoms of anxiety to have been a reaction to the VR process because the worker continued to harbour feelings of anger and resentment to what the worker believed were inappropriate recommendations and attitudes of some of the workers that he dealt with. Mr. Mai also felt that the worker's limited intellectual background and limited education were also factors in the onset and maintenance of his problems. Moreover, the worker related his problems to his limited grasp of the English language and his limited capacity to benefit from educational opportunities in English. The worker perceived a sense of injustice and a "victim attitude" to the events that occurred in his VR program. Dr. Boulais reported on December 7, 2003 that the worker has experienced traumatic events and significant reversals that precipitated depression, fearfulness and moderate to severe anxiety. Dr. Boulais attributed the events to include the worker's disentitlement and protracted battle with the Board, the alleged harassment by Board subcontractors, his struggle to get his needs for French language education recognized and the unrelenting contacts from the appointed tutor, among other issues. Dr. Boulais felt that major depression was evident in the clinical picture. Dr. Boulais opined that the sequelae of physical injury and psychopathology rendered the worker unfit to work and that the worker is unfit to perform any work at this time. He also recommended that the worker be reviewed in 12 to 18 months to determine if he is fit for literacy training or should be psychiatrically pensioned by Canada Disability Pension.

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·

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The only dissenting opinion from the foregoing opinions is from Dr. Corradini, Board Psychologist, who wrote Memo # 142 that rehabilitation activities were not really related to extended disablement as rehabilitation is designed to end extended disablement. Dr. Corradini

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felt that the worker had a psychological reaction in the form of an adjustment disorder as a consequence of his involvement with the rehabilitation program. He did not think that there were provisions for this type of reaction under the psychotraumatic disability policy and he could not recommend psychiatric entitlement in this case. We prefer the opinions of Drs. Crosbie, Mai and Boulais both because of their strong position as to the cause of the worker's problems and because they have actually assessed the worker, whereas Dr. Corradini did not assess the worker.

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When all of the evidence is taken into consideration, we conclude that there is no doubt that the majority of the worker's socio-economic factors in this claim are related to the worker's compensable accident. We accept Mr. Abitbol's submission that the policy set out in OPM Document 03-03-03 refers to "treatment process" but does not differentiate medical treatment from vocational treatment. We also accept Mr. Abitbol's submission that there were no other possible contributors to the worker's psychotraumatic disability. Thus, we conclude that the worker's difficulties in his VR/LMR program caused a psychotraumatic aggravation and necessitated the worker to see a psychiatrist. We find that the worker has entitlement as of July 10, 2000, when Dr. Crosbie did his initial report that the worker suffered from psychotraumatic disability. The Board shall assess the worker for a NEL award for psychotraumatic disability. Issue # 2 - FEL benefits

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As noted above, this appeal falls under the pre-1997 Act. Prior to 1998, subsection 43(13) of that legislation required the Board to determine a worker's FEL entitlement at the three points in time: an initial determination ("D1"), a 24-month review ("R1") and a 60-month review ("R2"). However, pursuant to the combined effect of sections 44 and 107 of the WSIA, after January 1, 1998 the Board "may" review a FEL benefit "every year or if a material change in circumstances occurs." OPM Document No. 18-04-14 confirms that the FEL may be reviewed for material change in circumstances, and adds that it may also be reviewed "if FEL benefits are paid for an extended period without a material change review". OPM Document No. 11-01-06 defines a material change in circumstances as "any change that affects a person's entitlement to benefits and services under the Act." Section 44 of the WSIA also provides that the FEL benefit shall not be reviewed after 60 months beyond its initial determination, subject to certain specific exceptions. Under section 44, the 60-month FEL review is not mandatory. However, OPM Document No. 18-04-14 appears to contemplate that the Board will routinely initiate such a 60-month FEL review. Having found that the worker has entitlement for psychotraumatic disability, we conclude that there has been a material change in circumstances under subsection 44(1) of the WSIA. We find that the evidence supports that on the basis of the worker's permanent impairment for psychotraumatic disability, which we have awarded under Issue # 1 above, and the organic impairment of his right knee, the worker became totally disabled as of July 10, 2000. We therefore conclude that the worker is entitled to 100 percent FEL benefits as of July 10, 2000.

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Page: 21 Recommendations for further health care benefits

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The Panel agrees with Mr. Martino that the worker's VR/LMR plan was severely flawed, although it is not within our jurisdiction or mandate to find or apportion any blame for it. However, the Panel did request extensive assessment for the worker in this case because of its concern for the worker and for the security and welfare of the worker's immediate family. The Panel therefore urges the Board to consider the following recommendations made by the assessors with respect to health care benefits, whose opinions we sought, and which recommendations we fully endorse. Dr. Boulais recommended the urgent need for effective treatment in order to avoid further deterioration in his health. He thought that a day psychiatric program should be considered to stabilize his mood and desensitise him so that he would approach literacy training with less fear, apprehension and hostility. He recommended that the worker be reviewed in 12 to 18 months to determine if he is fit for literacy training or should be psychiatrically pensioned by Canada Disability Pension. The Panel accepts these recommendations with respect to health care and we conclude that the worker is entitled to ongoing health care benefits because of the need for treatment for his condition that has resulted from his compensable injury. We therefore recommend that the Board act on those recommendations. Dr. Mai did not consider that the psychological barriers to integrating the worker back into the workforce could be overcome in the short term. He felt that, if the worker could overcome the "victim attitude" and become more self-motivated, rehabilitation might be more successful. Dr. Mai does not believe that the worker would benefit from further conventional medical treatment at the present time but he did recommend that the worker resolve various social and legal issues surrounding his disability and that the worker be reassessed in 12 to 18 months time. The Panel noted that the hearing of this matter was on January 21, 2003, which was only a matter of days before the Board might have reviewed the worker's entitlement at the R2 date of February 1, 2003 and that was just before the 60-month period following the initial determination. The Panel is not aware that the Board has done a review at R2 and confirms that this decision is made as of the hearing date.

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THE DECISION

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The worker's appeal is allowed. (1) The worker has entitlement for psychotraumatic disability. The Board shall assess the worker for a NEL award for psychotraumatic disability. (2) The Panel concludes that the worker experienced a material change in circumstances as of July 10, 2000 and that the worker became totally disabled. Accordingly, the worker is entitled to 100 percent FEL benefits as of July 10, 2000. (3) The Panel urges the Board to act on the recommendations set out in the section entitled "Recommendations for further health care benefits" above. DATED: February 19, 2004 SIGNED: M. Butler, P.A. Barbeau, R.W. Briggs

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