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. 1661/15

BEFORE: M. Crystal: Vice-Chair

HEARING: August 5, 2015 at Timmins

Oral

Post-hearing activity completed on August 10, 2016

DATE OF DECISION: October 21, 2016

NEUTRAL CITATION: 2016 ONWSIAT 2876

DECISION UNDER APPEAL: WSIB ARO decision dated April 9, 2013

APPEARANCES:

For the worker: Ms. H. Ethier, Office of the Worker Adviser

For the employer: Did not participate

Interpreter: Not applicable

Decision No. 1661/15

REASONS

(i) Introduction

[1] This appeal was heard in Timmins, on August 5, 2015. The worker appeals the decision

of Appeals Resolution Officer (ARO) M. De Marco, dated April 9, 2013. That decision

determined that the worker is not entitled to benefits for psychotraumatic disability.

[2] The worker appeared and was represented by Ms. Hannalie Ethier, Office of the Worker

Adviser. The employer did not participate in the appeal. The worker testified at the appeal

hearing. At the hearing, submissions relating to the factual basis of the appeal were provided by

Ms. Ethier.

[3] As noted below, I requested additional medical information from a Tribunal Medical

Assessor in relation to this appeal. Following the receipt by the Tribunal of a report from the

Assessor, final written submissions, dated June 28, 2016, on the merits of the appeal, were

provided by the worker’s representative.

(ii) Findings of fact made on the appeal

[4] As noted above, in this appeal, I determined that I wished to put certain questions to a

Tribunal Medical Assessor before rendering a final decision in this appeal. So that the Medical

Assessor would have a factual basis upon which he could answer the questions posed, I made

certain findings of fact concerning the worker's accident and medical history in a memorandum

dated, August 7, 2015. The portion of the memorandum which provided findings of fact to be

used by the Assessor, stated:

In this appeal, the factual basis of the appeal is not contentious, and accordingly, my

findings of fact for this appeal will be brief. I do not intend to prepare an interim

decision for this appeal, or to make further findings of fact other than as noted below in

this memo.

The worker in this case sustained a significant head injury on May 21, 1985, when he was

struck on the left side of the head by a diamond drill while working in mining, as a

diamond drill helper. At the hearing, the worker indicated that he had no recollection of

the incident, and that his earliest post-accident recollection was his discharge from

hospital after the accident.

The case materials included a “Consultation Record”, dated May 22, 1985, prepared by

Dr. T. D. McKee, one of the physicians who provided medical care for the worker upon

his admission to hospital. That report state, in part:

IMPRESSION:

This man has had severe contusion to the left head with a skull fracture and

probable fracture of the left zygoma and possibly mandible. He also has a right

otitis externa which is probably traumatic and possibly related to jaw movement

creating inflammation in the right ear canal. There apparently was some blood

from the right ear when he came into the hospital but there is none at the present

time. The left ear shows a possible left hemotympanum. However, the Rinne

test is positive bilaterally making me feel that there is no gross middle ear

effusion or hemorrhage in either ear.

I will await x-rays and decisions as regards this man’s intracranial status also.

He is having considerable headache at the present time and may need further

investigation in this regard.

Page: 2 Decision No. 1661/15

I note that most of the significant evidence in this appeal is in the nature of medical

information. Since the medical information on file for this appeal will be provided to the

Assessor, in my view it would not assist the Assessor to have me interpret or summarize

the medical information on file, in detail. Accordingly, my only finding of fact which

binds the Assessor is a finding that the worker sustained a head injury at work, in the

manner described in the medical information on file. As I have indicated, this finding is

not contentious, in that the Board has granted entitlement for the injury, and initially

awarded the worker a 15% permanent disability (PD) award, and a 1% PD award for

right sided hearing loss, for a total PD award of 16%. This was subsequently increased to

27%, which included 1% for hearing loss and 1% for tinnitus. At the hearing, the worker

indicated that he continues to experience tinnitus. The worker also experienced

“blackouts” and “seizures” subsequent to his accident, and these were diagnosed as post

traumatic episodes.

As noted above, the sole issue to be determined in this appeal is whether the worker is

entitled to a PD award for psychotraumatic disability. When the worker’s PD award was

increased to 26%, the Board’s medical consultant, Dr. D. Logan, indicated in a Board

memo, dated July 18, 1990 that the worker had “no obvious psychiatric disturbance.”

Following the accident, the worker returned to modified work briefly with the accident

employer, but was not able to continue. The case materials disclose that the worker was

admitted to the Board’s Downsview Rehabilitation Centre (DRC) on a few occasions

during the late 1980s, and that he also received training through Board approved

vocational rehabilitation (VR) programs in the early 1990s. The worker testified that he

did not complete his training program in heavy equipment operation, although the

materials disclose that in or about 1993, he was discharged from VR services. He stated

that he subsequently moved to British Columbia to seek employment, and that he

continued in employment until, in or about 1999, he was unable to continue and the

worker subsequently returned to Ontario.

Notwithstanding the Board’s determination that the worker did not experience any

significant psychiatric sequelae following the accident, the case materials include several

subsequent medical reports which provide diagnoses of Major Depressive Disorder and

Anxiety Disorder. These include:

A Discharge Summary, dated October 3, 2002, prepared by Dr. Anton

Scamvougeras, psychiatrist;

A Discharge Summary, dated February 12, 2009, prepared by Dr. Dorin

Nichols, psychiatrist;

A report, dated May 18, 2013, prepared by Dr. Adam Waese, psychiatrist.

….

(iii) Medical opinion from the Tribunal Medical Assessor, Dr. Ash Bender,

psychiatrist

[5] As noted above, in order to assist me in addressing the issue in this appeal, I sought

further medical information from a Tribunal Medical Assessor. A medical report, dated

April 4, 2016, was obtained from Dr. Ash Bender, psychiatrist, who was retained as the Tribunal

Medical Assessor for this appeal. The report provided answers to the questions which the Panel

posed in relation to the appeal, which were set out in correspondence, dated March 1, 2016, from

the Tribunal to Dr. Bender. That correspondence set out the questions, as follows:

Succinct answers to several key questions:

1. This worker had a documented head injury in May 1985. He was assessed

shortly after (in 1986 and 1987) and no psychiatric symptoms were found.

Page: 3 Decision No. 1661/15

However, shortly thereafter, he began to experience a variety of symptoms. The

latter were thought to be due to a seizure disorder. Please comment on any

relationship between the head injury in May 1985, as described by the Panel or

Vice-Chair in their findings of fact, its sequelae, and the subsequent psychiatric

history.

2. The worker has been provided with a 25% disability pension, but has not been

able to work apart from a brief period following the accident. He has had

extensive involvement in rehabilitation programs. Is it medically likely that his

functional/psychiatric limitations are the cause of his ongoing disability?

3. Please comment on the course of this worker's medical/psychiatric disorders.

4. Can you provide any other medical information, which you feel would be

helpful to the Vice-Chair or Panel and parties in this appeal?

[6] Dr. Bender subsequently provided his report, dated April 4, 2016, on the worker’s case.

Dr. Bender’s report included a “Statement of Qualifications”. In this regard, the report stated:

The author is a duly qualified medical practitioner, licensed to practice medicine in

Ontario since 2004. I am a staff psychiatrist at the Centre for Addiction and Mental

Health (CAMH) and consultant to the Work, Stress and Health Program (WSH), which is

a multidisciplinary program specializing in assessment, treatment and research of

occupational disability. I am an Assistant Professor with the Faculty of Medicine at the

University of Toronto and have several publications and conducted research in the area of

workplace mental health, including psychological trauma. I have has performed

numerous assessments for Worker's Compensation, private insurers, and the Courts and

consulted to several organizations regarding workplace mental health issues. As part of

my practice, I am actively involved in the management of a broad range of psychiatric

disorders affecting working adults with a focus on psychopharmacology and

cognitive­behavioural therapy.

[7] The main body of Dr. Bender’s report is set out below. Some portions of the report

which do not bear directly on the issues under appeal have been omitted. Literature references

which were noted and provided at the conclusion of the report have also been omitted. The

report commences with a statement of the questions posed, as well as Dr. Bender’s statement of

qualifications, and since these are set out above, they are not included in with the body of the

report, set out below. The report stated, in part:

….

REVIEW OF FILE

The Memorandum provided was reviewed in its entirety. It documents a relevance to

questions posed in the assessor brief include the following [sic]:

….

On May 23, 1985, an Employer's Report of Injury Documented a drill rod struck the

worker on side of head, injuring the left side of his head and face.

A Discharge Memo dated February 21, 1986, documented discharge diagnoses of

craniocerebral injury with cerebral contusion and concussion, fracture of the skull,

posttraumatic deafness – right and posttraumatic headaches. It was noted he was fit

for avoiding noisy or vibrating machinery and referred to a rehab counsellor. He was

also provided with a T.E.N.S. machine for continued use at home, to be reviewed

within one year.

Page: 4 Decision No. 1661/15

A Worker's Report of Accidental Injury documented on May 14, 1986, a loose rock

fell from overhead, hitting the right side of his hard hat. It was noted he had loss

of balance and experienced a bad headache with two missed days of work. He

reported some of the details and did not have other records.

On July 17, 1990, a Pension Interview documented complaints of headaches on a

frequent basis, anxiety, some memory loss, and inability to drive. Medication was

Tegretol three times a day and Fiorinal.

On July 18, 1990, Memo #64 completed by Dr. D. Logan, medical consultant for the

Complex Case Unit, documented organic impairment for the head injury was

increased to 25 percent with 1 percent for mild hearing loss, to a total of 26 percent

It was noted there were no obvious psychiatric disturbances. Recommendations

were made for vocational rehabilitation involvement.

Memo #134, completed by Dr. R.S. Hickman documented he experienced right ear

posttraumatic hearing loss with exposure to a minor blast in BC in 1999. It was noted

the blasting incident in BC does not appear to have aggravated the hearing loss in the

Ontario claim. There was no current medical relating to the head injury and no

description of what appears to be seizures. It was noted in 1990, he was having

posttraumatic and migraine headaches and described syncopal episodes. It was

noted cognitive dysfunction, headaches, and a controlled seizure disorder were the

reason for the 25 percent head injury award in the 1990 reassessment.

Recommendations were made for investigations of episodes of loss of consciousness.

Memo #220, completed by Dr. RS. Hickman, medical consultant, documented it was

reasonable that some of his compensable problems have contributed to his admission

and that recent investigations failed to confirm for certain the presence of a seizure

disorder. It was noted he appears to have seizures when not taking his medications

and was unable to operate a motor vehicle or work in hazardous jobs due to syncopal

episodes. It was noted outpatient psychological counselling for six months

suggested by Dr. Pirolli was acceptable, as well as antidepressants, anticonvulsants,

antimigraine, anti-inflammatories, and clonazepam. It was opined the compensable

condition has contributed to his psychological problems, both as a precipitating

factor and “also by rendering him less able to manage.” It was noted there were non-

compensable psychological stressors and if given light duties in a low-stress

environment, it was opined he would be able to manage as suggested at the

permanent impairment examination in 1990.

Memo #306, completed by Dr. M. Celinski, consultant psychologist, documented

review of a discharge summary from the University of British Columbia Hospital

dated February 21, 2003. It was noted he reported worsening of symptoms following

the second work-related incident in December 1999, after which he was incapable of

work. It was noted he described episodes of anxiety, partial insomnia, fatigue,

fluctuating appetite and weight, intermittent suicidal ideation with no attempt, poor

concentration, forgetfulness, and irritability. It was noted he had a prior diagnosis of

posttraumatic epilepsy and posttraumatic migraines as well as psychiatric sequelae of

the head injury, including anxiety disorder, major depression, and cognitive changes.

He was noted to become more withdrawn, with recommendations for antidepressant

and anticonvulsive medication. It was noted he was continuing to have episodes of

collapse and panic attacks, and was distressed by loss of financial support from the

WSIB for ongoing counselling and travelling to neuropsychiatric appointments. It

was opined that he required ongoing access to psychiatric and psychological

treatment, given the severity of his compensable condition as a result of his head

injury.

Memo #339 dated April 04, 2008, completed by Dr. R.S. Hickman, medical

consultant, WSIB Sudbury Office, documented his last permanent impairment

Page: 5 Decision No. 1661/15

reassessment was done in July 1990 and did not include a psychiatric award.

Reference was made to Memo #220, indicating contribution to his psychiatric

problems by the compensable injury even though he has significant non-

compensable contributors to his psychiatric difficulties. Recommendations were

made for him to be seen for psychiatric assessment and a permanent impairment

award.

[bullet points were discontinued in the original text]

On February 03, 1986, a Psychiatric Assessment Report completed by Dr. J.S. Thomson

documented following his injury on May 21, 1985, he had experienced problems with

headaches, dental tenderness, and dizziness. He reported sleeping too much and falling

asleep unexpectedly when people were talking to him. He reported he can drive for

approximately half an hour, following which he driving becomes erratic due to feeling

lost and disoriented. He reported forgetting readings after just one paragraph, which was

improving but not at his previous levels. He reported being fairly active in the morning

but needing to rest in the afternoon. Overall, he reported feeling his memory has

improved a lot and described excellent appetite. He reported activity is limited by

dizziness and aggravation of headaches when exercising. He reported tending to be more

quiet, without any reported change in his temperament or irritability. He reported being

strongly motivated to get back to his job. He was noted to have a positive attitude toward

rehabilitation. He reported interest in doing lighter duties and eventually going back to

college, getting work in training in the field of electronics for robotics. It was noted he

was very close with his family and enjoyed an active family life. He was not drinking

alcohol due to intolerance since the accident. During the interview, he presented as rather

cheerful, very open and honest, with an appropriate affect. It was noted there were no

signs of depression or tension and he was described as highly motivated to get back to

work. There was no evidence of any posttraumatic neuroses and it was opined he was

without psychiatric symptomatology. Recommendations were made to continue with

biofeedback techniques.

A Neuropsychological Assessment dated February 10, 1986, completed by Dr. Celinski,

documented he presented as friendly and cooperative, without signs of particular distress.

His full-scale IQ was 88, with a slight tendency to use somatic channels for expressing

emotional problems. He endorsed some insecurity and headaches, partially related to

excessive muscle tension. Recommendations were made for group relaxation and

individual biofeedback.

On February 21, 1986, a report completed by Dr. W. Horsey documented on examination

he was an anxious, perspiring freely, with tenderness in the area of his fracture and left

mandible. It was noted Dr. J. Thomson felt that the patient was without psychiatric

symptomatology and was an excellent candidate for rehabilitation, with an excellent

prognosis. It was noted Dr. Celinski identified some indication of difficulties with

interpersonal relationships and feelings of insecurity, without evidence of serious

psychopathology. It was noted while in hospital, he had participated very well in the

program and presented as enthusiastic about returning to activity.

On September 26, 1986, a report completed by Dr. K. Hawker documented problems

with headaches and loss of consciousness which had occurred several times at work. He

also endorsed problems with concentrating and no personality changes or episodes of

depression or mood swings. It was opined his loss of consciousness represents seizures

for which he was started on Tegretol.

On February 17, 1987, a Psychological Report completed by Dr. Celinski documented

significant improvement, primarily in verbal memory and some non-verbal memory.

Gains were noted in his verbal IQ of 86 and his reading skills were slightly below the

Grade 10 level. There was no diagnosis on Axis I or II, with mild psychosocial stressors

related to uncertainty about his vocational future.

Page: 6 Decision No. 1661/15

On February 23, 1987, a Psychiatric Report completed by Dr. G. Darby documented on

examination, he denied problems with anxiety and depression and endorsed some rare

irritability. At the time, he complained primarily of headaches and loss of hearing in his

right ear. He reported since returning to work, he has only missed four shifts and

experienced problems with “blackouts”. It was noted on examination, he presented as a

rather bright and pleasant young man who was motivated to return to work. It was noted

he was having difficulty adjusting to the possibility of career interruption and being

unable to achieve his financial and vocational goals.

On March 05, 1987, a Psychological Report completed by J. Howes, psychologist,

documented reports of frustration with having to change careers. He reported his spelling

and grammar have been poor since the accident, with difficulty thinking of words and

calculation, and describing problems to others. He reported feeling constant pressure

attributed to anxiety and uncertainty about his vocational future. It was noted he was

reading, skiing, and active socially, and no longer enjoys cooking, and was fearful and

mildly anxious when moving to a large city. He was noted to have mild difficulty

expressing himself but otherwise presented as friendly, energetic, and fairly quiet. It was

opined that he was best suited for a job that does not rely heavily on verbal skills. It was

suggested that vocational counselling would be useful to help alleviate anxiety, with

strong recommendations for upgrading and retraining.

A March 06, 1987 report completed by Dr. A. Hadjiski documented discharge diagnoses

of craniocerebral injury, fracture of the skull, hearing impairment, posttraumatic epilepsy.

and tension headaches. It was opined he showed significant improvement in his memory

function and motor performance. Posttraumatic epilepsy precluded him from working at

heights, with moving machinery, or driving a car until his seizures were under control.

On March 08, 1988, a Neuropsychological Evaluation completed by Dr. M. Celinski,

psychologist, documented he finished basic upgrading with increased time required for

learning. He did not report ongoing blackouts and emotionally felt better because of

participation in the retraining process. He reported improved headaches with relaxation

therapy and feels “mellowed” compared to after the accident.

An October 12, 1988 Injury Conference completed by Dr. W Horsey documented he

incurred a craniocerebral injury, fracture of the skull, hearing impairment on the right

side, posttraumatic epilepsy, and tension headaches. It was noted he had a moderately

severe cerebral contusion with localized brain injury and a depressed skull fracture

associated with loss of hearing and tinnitus. It was noted his posttraumatic epilepsy was

well controlled and a neuropsychological study showed impaired verbal memory which

was interfering in his ability to learn new information. It was noted he was apparently

succeeding in an upgrading program and mild organic impairment of 15 percent was

recommended.

On August 18, 1989, a report completed by Dr. W. Mason for Dr. F. Silver documented

medications at the time consisted of Tegretol 200 mg tid and Fiorinal one to two tablets

as required. It was opined he was suffering from posttraumatic seizure disorder prompted

by his migrainous episodes. It was noted he experienced seizure activity when stopping

medications and has been well since resuming.

On February 26, 1990, a report by Dr. Siegel documented on first impression he appears

motivated, but is quite incapable of succeeding at any of his own ideas. It was noted he

demonstrated an inability to rehabilitate in the classroom even with reduced class hours,

due to his level of concentration, frequent headaches and syncopal episodes.

Recommendations were made for him to be awarded 100 percent disability as a result of

his injury of May 21, 1985.

A Permanent Impairment Assessment dated July 18, 1990 by Dr. D. Logan, medical

consultant, documented complaints at the time of constant migrainous headaches,

blurring of vision, and occasional faints. It was noted on presentation, he appeared

Page: 7 Decision No. 1661/15

euphoric, insecure, and anxious, with no depression or detectable neurological

abnormality apart from slight hearing loss on the right side. It was noted he expressed

interest in pursuing a job that involved carving tombstones. It was noted he exhibited

deterioration in cognitive functioning with inappropriate mood and behaviour, as well as

inappropriate goals. It was noted he was not totally disabled and should be able to

manage a return to the workforce in a light and relatively stress-free occupation if a

change in his expectations can be brought about.

….

A May 08, 1992 report completed by Dr. G. Siegel, family physician, documented he

made a remarkable recovery but continued problems with frequent headaches and great

difficulty with concentration. It was noted this has impacted his ability to succeed with

retraining, with inability to complete a two-year course designed to be done in three

years, as well as his inability to study more than an hour, prompting his departure from

the RNA course after a few days. It was noted he has had two grand mal seizures, the

first of which was in 1986 and a second in 1989, three weeks after he discontinued

carbamazepine. It was noted Sinequan did not vary his headaches. It was opined that he

was not retrainable in a classroom setting due to poor concentration.

A report dated June 16, 1992, completed by Dr. K. Meloff, documented he sustained a

serious head injury in May 1985, following which he developed posttraumatic seizures.

It was noted he has been seizure-free since 1989 and was taking Sibelium at night for

recurrent migraine headaches. It was opined he was able to drive heavy equipment and

should have his Class AZ license.

A Worker's Continuity Report dated June 15, 2000 documented reports of headaches

since his original injury, with increased irritability and frustration related to repeating his

conversations. He reported his headaches became severe enough to cause vomiting and

loss of consciousness on several occasions and he has passed out. He reported episodes

of losing consciousness at work, which he did not disclose due to fears of losing his job.

He reported believing smoke from blasting and diesel fumes were the main cause of his

severe headaches and loss of consciousness experienced on both mine sites. He reported

when experiencing diminished concentration, his operation of hydraulic joysticks

becomes sloppy. He endorsed increased irritability with diminished vision in his left eye.

He reported upon returning to work in the mining industry, he avoided blasting as much

as possible as it bothered his right ear. He reported his wife convinced him to see his

family doctor after having a “complete breakdown” in front of her.

On September 12, 2000, a report by Dr. Mosewich documented his unusual blackouts

were not typical of seizures but a partial seizure was on the differential diagnosis.

A report dated March 27, 2001, completed by R. Rolstone, occupational therapist,

documented counselling to assist the claimant and his wife to cope with recent changes

due to awareness of his disability, to assist with family dynamics and helping his wife

understand and cope with changes to his functioning. It was also recommended a

neuropsychology assessment be performed and to receive life skills coaching as well as

career planning.

A Neuropsychological Assessment Report completed by Dr. A. Pirolli documented

assessments on August 21, 30, September 11 and 13, 2001. Medical history following a

head injury at work on May 21, 1985 was reviewed. It was noted on a

neuropsychological assessment completed by Dr. Celinski in January 1986, testing results

showed poor verbal memory and dysgraphic errors, as well as difficulties in interpersonal

relationships, feelings of insecurity, and a tendency for dissociation. It was suggested

that he had histrionic tendencies and did not represent serious psychopathology. It was

noted Dr. Thomson in February 1986 concluded there was no evidence of psychiatric

disorder. It was noted on reassessment by Dr. Celinski in 1987, he described anxiety in

urban situations and meeting new people. He was noted to be always a bit shy. On

Page: 8 Decision No. 1661/15

neuropsychological testing, there was evidence of improvement, with overall problems to

be mild. It was noted on assessment by Dr. Darby in February 1987, he denied problems

with anxiety or depression but endorsed rare irritability and adjustment difficulties. In

March 1988, he endorsed problems with forgetfulness but was feeling better emotionally

when participating in a retraining program. On assessment by Mr. McFadden in

September 1989, it was noted he was experiencing tension and worry related to his

course load and difficulties concentrating. In February 1990, it was noted he reported to

Dr. Siegel experiencing syncopal episodes, headaches, and problems concentrating. He

also reported stress and feeling incapable of succeeding. A report by Dr. Logan in 1990

noted he reported experiencing depression, anxiety, and irritability, with deterioration in

cognitive functioning and inappropriate mood and behaviour. He was noted to be totally

disabled. In May 1992, it was noted that Dr. Siegel noted disability due to concentration

and he was unable to complete a two-year course designed to be done over three years,

and stopped after a few days in an RNA course. It was noted in a report by Dr. Meloff

that he was having blackouts at work occurring 20 to 30 times a months and was very

stressed about his financial situation, as he was married with a young child. It was noted

on December 17, 1999, he was sitting in a lunchroom when a controlled blast happened.

Since that time, he complained of hearing loss and increased tinnitus, and his claim was

denied. It was noted in a report by Dr. Rolstone in March 2001 that he was experiencing

suicidal ideation and guilt due to the belief that he was putting himself and others at risk

at the work site due to his brain injury. A review of collateral information provided by his

parents was reviewed. They noted that since the incident, he would have episodes of

rage, with terrible headaches, loss of interest in cooking and difficulty preparing meals.

It was also noted he made passive suicidal statements and experienced problems with

memory and spelling. At times it was noted he was also babbling. According to his

mother, he was described as more quiet and withdrawn, with no reports of difficulties

with depression or anxiety prior to 1985. His sister also endorsed he was more quiet non­

communicative, and depressed. His other sister reported that since the accident he has

experienced terrible head pain and extreme fatigue, and was witnessed to collapse in the

bathroom. It was noted according to his wife of 3.5 years, the problems were getting

worse and indicated he appeared quite panicked and anxious, impacting his willingness to

go anywhere or be around people. She described him as very insecure and would become

upset and angry. She also endorsed limiting activities due to fears of dizzy spells and

described him now as pessimistic and down. She reported he had talked about suicide

and engaged in excessive spending, contributing to bankruptcy. She reported he has low

frustration tolerance, poor memory, and will start jobs and not finish them. She reported

that he rarely drinks and did not identify illicit drug use. According to [the worker], he

reported after the accident he had difficulty remembering friends and reading, and was

experiencing headaches, fatigue, and avoidance of large groups. He reported becoming

increasingly nervous about working the equipment around people as he had problems

remembering all the controls. He also reported experiencing blackouts, severe

headaches, and constant panic. He endorsed poor judgement, buying expensive cars

repeatedly, and after the birth of his daughter in 2000, he endorsed increased fears he

could kill someone at work. At the time of assessment, he reported feeling like a total

failure with ongoing angry outbursts and anxiety most predominant at night. He

continued to report panic-related symptoms and nightmares as well as crying. He

reported feeling nervous around new people and described suicidality attributed to feeling

overwhelmed. He endorsed an episode of binge-eating and impaired sleep. Personal and

family history was provided, with no prior reported difficulties with depression or

anxiety. He did not report alcohol use due to exacerbation of headaches. On

psychometric testing, he was noted to appear anxious and genuinely distressed. He put

forward good effort on testing and appeared fatigued at the end of the day, with reports of

increased pain. On tests of attention, concentration, and speed of processing he scored in

the average range. Learning and memory were in the average range, as well as executive

functioning, motor functioning, and academic and intellectual levels. On tests of

psychological and emotional, the first half of the questionnaires were considered to be

Page: 9 Decision No. 1661/15

valid but the second half possibly not. His overall profile suggested someone in acute

situational distress with indication of social avoidance, depression, oversensitivity, and

lack of insight into psychological issues. He was noted to have a tendency for somatic

complaints and feel he has limited resources. On conclusion, it was noted he

demonstrated average or better performance in many areas of cognitive functioning, with

mild impairment in speed of information processing for visual information as well as

attention. It was noted he appeared to be experiencing extreme levels of anxiety and

depression, including panic attacks, obsessive ruminations, and avoidance of situations,

and did not appear equipped with skills to manage stress. It was noted there did not

appear to be a history of psychological problems prior to his 1985 accident, and it was

opined that the accident and its sequelae contributed to his anxiety and depression.

Recommendations were made for him to access through a psychiatrist or psychologist to

clarify diagnosis and provide a combination of medication and cognitive behavioural

therapy. It was also suggested he see a pain specialist as he was taking multiple Extra

Strength Tylenols a day. It was recommended he address his anxiety disorder,

depression, and migraine management first before pursuing future vocational options.

On December 14, 2001, a report completed by Dr. R. K. Mosewich documented reports

of intensifying headaches and migrainous-related blackouts. He also reported stress

related to problems encountered with the WCB, with evidence of a sleep disorder and

mild underlying depression. He was started on amitriptyline 25 mg at night.

A Discharge Summary completed by Dr. Scamvougeras documented admission on

August 14, 2002 and discharge on October 03, 2002. This report documented at the time,

major concerns were anger outbursts, poor decision-making, blackouts, chronic

headaches, panic spells, depression, excessive worry, and sense of unsteadiness. He

reported persistent difficulties since a traumatic head injury in 1985 which had been

fluctuating in nature. He noted a second work-related accident in 1999 and felt incapable

to work. He reported episodes of unexpected anxiety and panic symptoms occurring four

times a week, interrupting sleep. He also endorsed depressive symptoms including

sadness, unprovoked crying, excessive worry, guilt about the past, initial insomnia,

fatigue, fluctuating appetite and weight, intermittent suicidal ideation without attempts,

poor concentration, forgetfulness, and irritability. He reported cognitive difficulties such

as difficulty understanding complex information, being easily overwhelmed cognitively,

with episodes of impulsive buying. He was on no medications at the time of admission.

Details of past head injury in 1985 were provided. It was noted following, he had two

episodes of loss of consciousness associated with confusion and disorientation, and was

started on carbamazepine in 1986. Medical records through 1989 to the early 1990s

documented issues with left-sided headaches, poor mood, irritability, and anxiety. It was

noted that in the 1990s, he attempted to go back to school but was unable to complete a

two­ year course with modification. He subsequently saw neurology, Dr. Mosewich, in

2000, with syncope. Neuropsychology testing was noted to be better on average on

constructive abilities and motor dexterity, reading level, and executive functioning, with

impairment on processing speed, divided attention, and working auditory memory.

According to collateral from his parents [sic], they noted changes since his 1985 accident

including issues with anger, loss of interest, difficulty preparing simple meals, decreasing

communication and long periods of depressed mood, and periods of voiced suicidal

ideation. They also identified problems with memory and spelling, and a delayed episode

of becoming incoherent, where he was unable to move the left side of his body. They

also reported personality changes including becoming quiet, withdrawn, and worrying

more. Premorbidly, he was described as “happy-go-lucky” and a hard worker. His sister

noted he was more quiet and less communicative, with a tendency to repeat himself.

According to his wife, he was experiencing increased anxiety and panic, more worry

about the past, irritability, and poor memory. On mental status exam, he was noted to be

anxious, with periods of depression, demoralization and weeping, preoccupied with his

occupational and domestic circumstances. There was evidence of attentional difficulties.

It was documented since his injury in 1985, he has experienced a host of neuropsychiatric

Page: 10 Decision No. 1661/15

symptoms including mood and personality changes, increased anxiety, left-sided

migraines, poor attention and concentration and memory. Diagnoses were a probable

seizure disorder, post-traumatic migraines, and psychiatric sequelae of the head injury

and possible seizure disorder, including anxiety disorder, panic attacks, major depression,

cognitive changes, and personality changes. During the hospitalization, he received

counselling and was initiated on medications. On discharge, he was taking Epival 500

mg qam and 1000 mg qhs, fluoxetine 40 mg daily, clonazepam 0.25 mg qid, Tylenol, and

ibuprofen. Recommendations were made to follow up with Dr. Farrell and engage in

counselling, and see Dr. Scamvougeras.

….

On August 11, 2003, a follow-up note completed by Dr. A. Scamvougeras documented

he went camping in June and experienced convoluted thinking, and decided to stop his

medications for five days. It was noted he drank six or seven beers a day while up at the

cottage, with fluctuating symptoms. He was noted to be dysphoric and distressed due to

finances, with poor memory, adequate appetite and sleep, and complaints of headaches.

It was noted there was evidence that his wife was using alcohol and cocaine, which also

contributed to social issues. It was noted he was more industrious and less passive prior

to the 1985 head injury. On assessment, he was noted to have a significant head injury in

1985, mood disorder, and seizure or seizure-like episodes. Recommendations were made

for weekly follow-up by Dr. Farrell with reassessment in November 2003. His valproic

acid level was in therapeutic range.

….

On February 18, 2004, a report completed by Dr. Mosewich documented prior opinions

that he has a probable seizure disorder, posttraumatic migraines, and psychiatric sequelae

of a head injury, including anxiety, major depression, and cognitive changes. It was

noted to be a difficult interview, with scattered conversation and a tendency to focus on

anxiety-related symptoms, with spontaneous crying. On examination he looked drowsy,

with trouble focusing. It was noted based on a description from his wife, there were

suggestions that he was not experiencing seizures. Recommendations were made for an

EEG.

On March 26, 2004, a report by Dr. R. Mosewich documented reports from his wife that

he is extremely depressed. He was taking fluoxetine 40 mg daily in combination with

clonazepam 0.5 mg tid, valproic acid 500 mg qam and 1000 mg qhs, as well as

carbamazepine 400 mg bid and gabapentin 400 mg tid. He was noted to have a complex

biopsychosocial situation, with evidence of epileptic seizures and possible conversion

symptoms. It was noted the main problems were depressive symptoms, with

recommendations for counselling which was underway. It was noted he was completely

disabled by his current condition. Reference was made to frustration related to WCB

issues.

On April 05, 2004, a letter completed by G. Scriver [registered clinical counsellor]

documented he has been seen on a regular basis since October 2003, with sessions

focused on dealing with issues related to finances, relationship, parenting, and self-

esteem. He reported difficulty organizing a lot of things in his life and wanting to “end it

sometimes” since his accident. It was evident he had a short memory span and difficulty

processing verbal information.

A September 30, 2004 Workplace Safety and Insurance Board Appeals Resolution

Officer Decision completed by Mr. M.J. Shruff was reviewed. It was opined that the

worker presented with an organic head injury, which would make counselling sessions

more difficult to produce a fruitful result. It was recommended that therapy sessions be

continued beyond March 2004 due to medical which described poor clarity of thought,

noting he was “very tangential and circumstantial, with poor insight into his condition”.

Page: 11 Decision No. 1661/15

On January 15, 2005, a report by Mr. Scriver documented he resumed supportive

counselling in October 2004, meeting every two weeks with regular attendance. It was

noted the focus of counselling was on self-esteem and general cognitive functioning, with

little progress made to date. Issues were finances, his relationship, and fatigue. He also

endorsed feeling depressed and tearful, with three migraines a week.

On February 17, 2005, a follow-up note completed by Dr. A Scamvougeras documented

follow-up once or twice monthly. It was noted he remained significant impaired with

neuropsychiatric sequelae of a “very significant head injury”. It was noted he was

experiencing panic attacks, increased when emotionally overwhelmed and feeling

distressed due to potential withdrawal of financial support from the WSIB for counselling

and travel to neuropsychiatric appointments. His mood was described as poor and he

presented as extremely anxious and easily overwhelmed. Fluoxetine was increased to 80

mg and Lamotrigine 25 mg bid was added to stabilize mood and anxiety and to treat

epileptic phenomena. Medications were trazodone 50 mg qhs, clonazepam 1.5 mg qhs

and 0.5 mg tid, gabapentin 1200 mg tid, olanzapine 5 mg qhs. and Epival. It was opined

he was significantly disabled secondary to illness that he suffered since his very

significant head injury.

….

On April 25, 2005, a report by G. Scriver documented recommendations for ongoing

counselling and support to assist with cognitive impairment and daily affairs associated

with finances, relationship, parenting, and coping strategies.

On July 20, 2006, a Psychiatric Consultation Note completed by Dr. O.J. Oluboka

documented since his injury in 1985, he was struggling with memory problems,

organization and planning, and impulsivity, buying three cars in one year. It was noted

that finally a few years ago, he “came to terms with them and started talking with people

about the difficulties he has been having since his accident.” It was noted that family

members observed personality changes, describing him as more withdrawn and quiet, and

he endorsed non­ stop worries about separation from his wife, custody of his daughter,

and upcoming appeal with WSIB. He was noted to be quite anxious and depressed, and

endorsed problems sleeping due to thought preoccupations. It was noted he was smoking

cannabis to calm down and taking extra clonazepam from time to time. He endorsed

being withdrawn, with frequent crying, low energy, poor concentration, and

forgetfulness. He reported anxiety in crowds and avoidance of malls due to associated

panic symptoms. There were no psychotic symptoms. It was noted his psychiatric illness

dated back to 1985, though he worked up to 2000. Medications at the time were

trazodone 50 mg qhs, Zyprexa 10 mg po od, Lamotrigine 25 mg bid, gabapentin 400 mg

tid, Prozac 80 mg qam, divalproex 500 mg qam and 1000 mg qhs, and clonazepam 0.5

mg tid and 1.5 mg qhs. It was noted he had a longstanding history of marijuana use,

averaging twice a week, and drank alcohol occasionally. No other forensic 0.00.0issues

were noted. On mental status exam, he was calm and cooperative, with intermittent

emotional distress. There was no suicidal ideation or psychosis. Diagnostically, he was

opined to have posttraumatic head injury with mixed anxiety and depression,

posttraumatic head injury with cognitive impairment, and posttraumatic head injury with

possible personality changes. There were no significant Axis II traits. Multiple

psychosocial stressors were noted, including separation from his wife, custody of his

daughter, appeal with WSIB, and sick parents. Recommendations were made for

laboratory investigations and reduction of Prozac due to possible tremors, and

discontinuation of Zyprexa with initiation of Seroquel. Alternate antidepressant

medication options were provided.

On September 11, 2006, a Psychiatric Consultation Note completed by Dr. Fluoma

(illegible) documented current concerns of chronic pain, headaches, insomnia,

agoraphobia, and excessive worrying. It was noted he had been seizure-free for the past

two years, with refractory headaches and pain. Recommendations were made for

Page: 12 Decision No. 1661/15

acupuncture and mindful meditation to address anxiety, which was one of his “greatest

problems”. It was suggested he also try Remeron instead of fluoxetine for insomnia and

comorbid depression. It was noted his agoraphobia appears to be related to being

agitated with people in relation to cognitive deficits. His excessive worry was noted to be

in part related to realistic concerns, taking care of sick parents, raising a child by himself,

and financial concerns as he was presently in dispute with the WSIB.

A Neuropsychological Report completed by J. Mosher [psychometrist] and Dr. B. Losier,

documented assessment on four occasions between November 17 and

December 02, 2008. Background information was provided which documented onset of

increased passivity, social withdrawal, and anxiety in the months following injury. It was

noted after he attended a neuro rehabilitation program until April 1986, he attempted

work on a modified basis and was terminated after four months due to blackouts,

querying the diagnosis of posttraumatic epilepsy. It was noted he returned to work in

1988 and continued on and off in the mining industry with headaches and periodic

blackouts which were believed to be stress-related. It was noted a psychiatric

consultation in 1990 found him to be depressed, irritable, and anxious, and in

September 2000, a neurological consultation found he was experiencing syncope with

migraines rather than seizures. In 2001, he began counselling through [name of city]

Brain Injury Association, during which time he was having financial distress due to lack

of work. He was described as irritable, angry, anxious, depressed, withdrawn, and

actively suicidal. It was noted in September 2001, he had a neuropsychological

assessment, during which time he was noted to have debilitating symptoms of panic,

obsessive ruminations, avoidance of situations and people, as well as extreme levels of

depression. It was noted on assessment in 2004 by neurology, he was noted to be

experiencing anxiety disorder, panic attacks, major depression, cognitive changes, and

organic personality change following his head injury, with the exact mechanism of

blackouts remaining elusive. It was noted he endorsed struggling with fatigue,

depression, feelings of hopelessness and being overwhelmed, negative ruminations,

anxiety, agitation, mood swings, social isolation, and occasional thoughts of self-harm.

On mental status, he was noted to have bright and full range of affect, with good eye

contact and fluid speech. His thinking was mildly concrete and repetitive. He was noted

to attend to test sessions promptly and was appropriate at all times. It was noted he

reported experiencing past thoughts of suicide but no prior attempts. It was noted he

experienced retrograde and anterior grade amnesia following his injury of 1985, and

spent six months in bed due to pain. He described feeling easily confused and

overstimulated, contributing to social withdrawal, and engaged in impulsive purchases. It

was noted he endorsed feeling depressed, with suicidal thoughts. It was noted he

returned to school and quit a nursing program in [name of city] after two days, and

attended a mining instrumentation course for a few months, which was not completed. It

was noted he felt compelled to get a job and took a course in heavy equipment operation,

and returned to mining as a machine operator. It was noted he moved to British

Columbia, where his brother got him a job, and endorsed having a number of accidents

while driving, attributed to blackouts. It was noted he worked for six years before

quitting due to safety concerns. Complaints at the time of assessment were feeling

stressed and overwhelmed, which leads to migraines. It was noted he denied

experiencing any specific cognitive deficits or biological symptoms associated with

depression other than fatigue. It was noted he tolerated fairly lengthy test sessions with

only brief breaks, and exhibited little evidence of evasiveness or self-limiting behaviour.

It was noted his IQ was in the low average range, with a pattern of being easily

overwhelmed with voluminous or rapid information. On tests of personality and

emotional coping, he endorsed a number of items consistent with anxiety and depression,

including poorly controlled worry, feelings of sadness, worthlessness, helplessness,

hopelessness, loss of interest and pleasure, difficulty relaxing, feeling fatigue, and unable

to concentrate. It was noted his self-image was largely influenced by his belief that he

was severely disabled by poor health. He did not report psychotic symptoms, substance

Page: 13 Decision No. 1661/15

use, or antisocial personality traits. He denied current thoughts related to self-harm. Risk

factors were noted to be related to situational stressors, social isolation, and poor impulse

control. It was noted his neuropsychological profile indicated mild impairment of

abilities subserved by frontal areas of the brain. It was noted his difficulties coping

emotionally appear to be related to anxiety and depression associated with struggles

associated with low self-esteem, loss of purpose, dependence on others with goal-setting

and decision-making. It was opined it would be unlikely he would be able to return to

any form of competitive employment, with recommendations for a rehabilitation focused

on assisting him in staying organized and goal-directed. Recommendations were also

made for community psychiatric services and counselling to help him adjust to his

situation and improve adaptive coping. Progress notes completed by Carmell Regume

[sic – Carmelle Rheaume – registered social worker] documented primary concerns about

his finances and family stressors.

On February 12, 2009, a Behaviour Assessment Report completed by Dr. A. Monteiro

and Dr. B. Linder, psychologists, documented after a two-week hospitalization he was

discharged to his wife’s care. It was noted he continued to suffer headaches, cognitive

deficits, hearing loss, and change of personality, becoming quiet, passive, anxious, and

tense. It was noted psychiatric issues were poor mood/depression, frequent crying and

easily emotionally overwhelmed, feeling hopeless, negative ruminations, passive

occasional thoughts of self-harm, anxiety, agitation, mood swings, and social isolation. It

was noted migraine headaches occurred with cognitive demands, stress, anxiety, and

overexertion. Pre-admission neuropsychological tests results were reviewed, with reports

on assessment in January 1986, [the worker] was having difficulties in interpersonal

relations and feelings of insecurity. In February 1987, he was experiencing mild

problems with verbal impairment. In September 2001, he was noted to have mild

impairment and show extreme levels of anxiety, depression, panic attacks, obsessive

ruminations, and avoidance of situations and people. On psychometric testing, he

reported elevation in domains of depression, somatic, memory and attention,

communication, and motor, but not aggression. He reported severe levels of depression

and anxiety with excessive worry. He was avoiding social activities, leading to isolation

and increased dependence on others. Functional analysis was completed.

Recommendations were made for him to pursue community-based anger management

counselling in order to further investigate potential causes of suppressed emotion. It was

also recommended he engage in previously avoided activities.

On May 08, 2009, a Discharge Summary from the Acquired Brain Injury Program at

St. Joseph's Healthcare [name of city] documented at the time he was separated, with full

custody of his eight-year-old daughter. It was noted he was estranged from his wife and

his father was terminally ill with cancer, and his mother was a severe diabetic. It was

noted on May 21, 1985, he was hit on the left side of his head and fell from the drilling

platform to the mine floor. It was noted he sustained a left temporoparietal depressed

skull fracture and a non-displaced right temple fracture, with bilateral cerebral edema and

mild left to right shift. He also sustained a fracture of his left jaw and bleeding from his

right ear, with no recollection of the accident three to four weeks prior and one week after

the accident while in his second week of hospitalization at [name of hospital]. It was

noted following discharge, he experienced severe migraine-like headaches with

occasional blackouts and syncopal episodes, following which he stopped working in the

mines in August 1986. It was noted he returned to work at a BC goldmine in 1994 but

continued to have severe headaches. It was noted that following the accident, he became

anxious and easily overwhelmed by worries and negative ruminations, and did not

manage to return to regular employment despite several attempts. It was noted in

February 2006, his wife left the marriage and he returned to Ontario to live with his

parents. It was noted a head MRI in July 2007 showed mild bifrontal atrophy. It was

noted there was no psychiatric history prior to 1985. On admission, he was taking

Effexor XR 75 mg od in combination with propranolol, Lamotrigine 50 mg qhs, Epival

500 mg qam and 1000 mg qhs, clonazepam 0.5 mg lid and 1 mg qhs, Seroquel 100 mg

Page: 14 Decision No. 1661/15

qhs, Neurontin 400 mg bid, Celebrex, Nexium, and a multivitamin, with Percocet prn. It

was noted targeted behaviours included worry, avoidance, and organization. He

produced valid results on neuropsychological assessment with a tendency to become

easily overwhelmed, impacting attention and concentration. Testing was indicative of

mild frontal impairments and slight right hemisphere preponderance, and mild

impairments in attention and working memory. It was noted there was minimal interval

change since the 2001 assessment. On examination, he complained of severe migraines,

feeling stressed and overwhelmed, with worry primarily about his daughter. It was noted

his anxiety was related to rumination, which he did not report prior to the accident. It

was opined that "This is a less than successful coping attempt by his left hemisphere to

compensate for right hemisphere adaptive dysfunction. This will not go away and will

unlikely respond to medications." It was opined his migraines and anxiety are chronic

and beyond his capacity to control. On Axis I, he was diagnosed with an Anxiety

Disorder Due to Brain Trauma, Moderate; Personality Change Due to Brain Trauma,

Mild; Cognitive Disorder Due to Brain Trauma, Mild. There was no diagnosis on Axis II,

and Axis III included posttraumatic chronic migraines, no acute physical illness, history

of work-related brain trauma in 1985. Axis IV stressors were the impact of his illness,

separation from his wife, and worries about raising his daughter, with a GAF of 50 which

has been static. Recommendations were made to continue with his pre-admission

medications. This report was completed by Dr. D. Nichols, psychiatrist

An undated Social Work Summary, completed by J. Tee, social worker, documented

post-injury he reports “high levels of anxiety, depression with occasional thoughts of

suicide, chronic headaches, and psychological distress.” It was noted he presented as a

“passive, dependent man who internalizes rather than expresses his anger. He is easily

overwhelmed. He uses avoidance to cope with negative feelings.” It was noted on

history, he stopped working after his daughter was born, as he had been making mistakes

and was concerned about putting others in danger. It was noted his wife left him for

another man and he has continued to care for her at his parents’ home. It was noted when

faced with concerns about his daughter, he uses “denial or rationalization to cope with

anxiety about her.” Recommendations were made for support to help him successfully

raise his child. A referral was made to the Children's Aid Society.

On November 05, 2009, a letter completed by Dr. T. McDermott, family physician,

documented presentation with symptoms of increasing low mood and increased anxiety

and headaches after being denied coverage for Seroquel, which he was unable to afford.

It was noted he displayed progress after a stay at the Brain Injury Clinic at St. Joseph's

Healthcare in [name of city] with reduction in depressive symptoms and improved ability

to cope.

An Outpatient Clinic Note dated January 20, 2012 documented [the worker] “suffered a

traumatic closed head injury at work that has resulted in changes in mood as well as

migraines and seizures.” Recommendations were made to continue Dilantin therapy and

he was prescribed indomethacin for exertional migraines.

A Workplace Safety and Insurance Board Appeals Resolution Officer Decision dated

April 09, 2013, completed by M. De Marco, was reviewed. It was opined there was no

basis for granting psychotraumatic disability, given that medical documentation within

five years did not identify an nonorganic condition.

On May 18, 2013, a report completed by Dr. A Waese, visiting psychiatrist at [name of

city] Hospital, documented at the time of assessment, [the worker] was living with his

elderly mother and daughter, age 13. It was noted he suffered work-related head trauma

m 1985 and “began to suffer psychiatric symptoms immediately afterwards.” It was

noted he was previously assessed at St. Joseph's Hospital in 2008 and diagnosed with

posttraumatic head injury with anxious and depressive features, following which he

received some behavioural therapy. It was unclear if he had responded to medications

with Prozac and Effexor, with some benefit with clonazepam. It was noted he was “quite

Page: 15 Decision No. 1661/15

preoccupied with recently having been rejected for additional payments for post-

traumatic symptoms related to the accident.” It was noted he was experiencing thoughts

related to the accident which he did not feel comfortable talking about for many years, as

well as feelings of being penalized by the WSIB. He was also ruminating about financial

stressors. It was noted he was doing activities such as shopping and preparing meals with

the accompaniment of his mother and home support. It was noted he felt badly about

himself due to cognitive deficits, and avoids talking to people due to difficulty

understanding conversations and worries about saying “stupid things”. It was noted he

was working on his interpersonal skills and enjoyed time with his daughter. He endorsed

improved mood on Effexor XR and was receiving supportive therapy through the March

of Dimes since October 2011. Medications included topiramate 75 mg qam and 50 mg

qhs, quetiapine 50 mg qhs, Dilantin, and clonazepam 0.5 mg bid and 1 mg qhs, as well as

CPAP. He was not using other substances. It was noted he was not clinically depressed

but was suffering from anxiety, bothering him at night. It was noted he had been largely

unchanged since his discharge from St Joseph's Hospital in 2008/09, with more

substantive benefits from clonazepam. It was noted it was difficult to be certain if

posttraumatic memories of the accident have been occurring continuously and it was

quite possible that he was recalling a piece of the accident he initially forgot. It was

opined that his anxieties were almost certainly accident-related and pharmacologic

recommendations were made. It was unclear if therapy was contributing to functional

improvements, and recommendations were made for several strategies. It was noted he

may also benefit from residential support for individuals with acquired brain injuries.

On June 07, 2013, a Clinic Note completed by Dr. M. Angel documented reassessment of

chronic migraines occurring four days a week. Medications were topiramate 25 mg bid,

rosuvastatin, quetiapine, phenytoin, metformin, indomethacin, gliclazide, and CPAP. It

was noted he was functioning poorly with superimposed anxiety and depression as well

as poor conditioning and sleep apnea. Recommendations were made to discontinue

indomethacin and consider botulin toxin.

….

A Memorandum dated August 07, 2015 from Melvin Crystal documented oral testimony

for the worker was completed on August 05, 2015. It was noted the sole issue to be

determined was whether the worker is entitled to benefits for psychotraumatic disability.

It was noted on May 21, 1985, he was struck on the left side of his head by a diamond

drill while working in mining as a diamond drill helper. It was noted at the hearing, the

worker indicated he had no recollection of this incident and his earliest post-accident

recollection was his discharge from the hospital after the accident. Reference was made

to medical documenting his severe contusion to his left head with a skull fracture and

probably fracture of the left zygoma, and possibly mandible. He was also noted to have

right otitis externa and a possible left hemotympanum. It was noted he received a

permanent disability award of 16 percent, increased to 27 percent which included hearing

loss and tinnitus. It was noted he also experienced blackouts and seizures subsequent to

his accident, which were diagnosed as posttraumatic episodes. It was noted in a memo

dated July 18, 1990 that the Board's medical consultant, Dr. D. Logan, indicated there

was “no obvious psychiatric disturbance”. It was noted after the accident he briefly

returned to work with the accident employer in a modified position and receiving training

through the vocational rehabilitation programs in the early 1990s which were not

completed. It was noted he moved to British Columbia and continued employment until

1999, following which he returned to Ontario. Reference was made to diagnoses of

Major Depressive Disorder, Anxiety Disorder, and discharge summaries between

October 2002 and May 2013.

A Consultation Note dated December 14, 2015, completed by Dr. H. J. Richard,

documented [the worker] is a patient at CMHA [Canadian Mental Health Association]

[name of city] office. It was noted he was seen in the accompaniment of a worker from

CMHA due to anxiety and difficulties with thinking and concentration. It was noted he

Page: 16 Decision No. 1661/15

was injured in 1985 while working as a diamond driller and had a second injury 1.5 years

later, with no recollections of the accident It was noted he incurred severe head trauma,

following which he had had repeated hospitalizations. He reported feeling better with

mindfulness treatment and described experiencing anxiety in public, with concerns about

negative perceptions of others. He reported difficulty following conversations and

responding to questions, prompting him to exit meetings or gatherings. He also endorsed

headaches occurring three to four times a week, which trigger recollections about

descriptions of the accident he was told by others. He also reported frequent nightmares,

envisioning himself having head trauma and causing him to wake up. He was noted to

have “secondary wounding” as a result of dealings with the WSIB and perceived failures

during the retraining process. He reported recollections of seeing his deformed face in

the mirror and endorsed underlying feelings of failure. He reported positive experiences

with raising his daughter and driving. It was opined he was not suffering from a clinical

depression but experiencing noticeable cognitive deficits impacting attention,

concentration, and possibly poor working memory. It was noted his full medical file was

not available for review at the time of assessment. Medications were Trazodone 100 to

200 mg qhs and zopiclone 7.5 mg qhs. He was still taking phenytoin for seizures and

clonazepam 0.5 mg lid and 1 mg qhs. There were no substance abuse problems identified

or prior mental health issues before his injuries. It was noted he had not returned to work

since 2000, when he worked a few weeks after finding a job with the assistance of his

brother. A personal history was provided, with separation from his wife due to her

alcohol use. It was noted he had raised their daughter since she was five and had not

engaged in hunting for years. On mental status exam, it was noted the session was

conducted through the Ontario Telemedicine Network. He presented with good

grooming and was self-critical. It was noted he reported some hearing problems due to

blast injuries during the work accidents and did not exhibit dissociation. He was noted to

have a tendency to ramble and be circumstantial, with some circular thoughts, requiring

frequent redirection. It was noted he was trying to provide information not recalled, with

no evidence of delusions or perceptual disorders. There were no suicidal thoughts and he

was described as hyper-vigilant and well-oriented, with poor attention and concentration.

It was noted his insight was coloured by being self-critical with preserved judgement.

DSM-5 diagnoses were Posttraumatic Stress Disorder, Chronic Course, with Delayed

Expression; Late Affective lntercranial Injury without Skull Fracture (Possible); Major

Neurocognitive Disorder Due to Traumatic Brain Injury, with Behavioural Disturbance

(Possible); and Injury at Work May 01, 1985, second at work within 1.5 years. It was

opined he was suffering from Posttraumatic Stress Disorder with important factors

including headaches, nightmares, and secondary wounding. Recommendations were

made for assessment for nightmares to improve sleep and possibly cognitive and social

functioning. It was suggested he undergo a trial with sertraline and continue with

mindfulness targeting personalization of failures and desensitization to looking at himself

in the mirror.

Response to Referral Questions

This worker had a documented head injury of May 1985. He was assessed shortly

after (in 1986 and 1987) and no psychiatric symptoms were found. However, shortly

thereafter, he began to experience a variety of symptoms. The latter were thought

to be due to a seizure disorder. Please comment on any relationship between head

injury in May 1985, as described by the panel or vice-chair in their findings of fact,

its sequelae, and the subsequent psychiatric history.

Based on thorough review of medical documentation to date, [the worker] sustained

significant craniocerebral injuries as a result of a workplace accident in May 1985. It

appears initially after the accident, he made a substantive recovery but experienced initial

issues with posttraumatic headaches, hearing loss, and cognitive impairment following

engagement in intensive rehabilitation. During that time, he underwent repeated

psychiatric and psychological evaluations which identified minimal or subclinical

Page: 17 Decision No. 1661/15

psychological difficulties, documenting generally presented as unexpectedly upbeat and

enthusiastic regarding his potential for return to gainful employment.

Despite his motivation and initial optimism, as a result of unsuccessful in attempts at

retraining due to persistent cognitive difficulties [the worker] experienced increasing

levels of anxiety and worry regarding his future. There is also evidence of emerging

depressive symptomatology in the context of associated financial strain. [The worker]

eventually returned to a mining environment but reported experiencing recurrent

“blackouts”, prompting further evaluation. He was subsequently treated for posttraumatic

seizures and syncopal episodes, but ultimately stopped working in 1999 due to concerns

about placing himself and others at risk within a safety-sensitive environment. He has

since not been able to procure or sustain employment.

There is evidence that [the worker] experienced a number of neuropsychiatric symptoms

related to his head injury in 1985. As early as 1987 it is documented that he was

experiencing anxiety that would benefit from counselling. I also note that between 1986

to 1989, he was taking carbamazepine for posttraumatic seizures, which may have also

had mood stabilizing effects and some antianxiety effects. Following 1989, there are

several reports on file which provide a cohesive and consistent account of progressive

psychological difficulties opined to be related to his traumatic brain injury in 1985. These

included cognitive difficulties, problems with emotional regulation, anxiety and panic,

poorly controlled worry with a tendency to feel overwhelmed, loss of interest in some

previous enjoyed activities, and self-limiting behaviour in social settings due to anxiety

and underlying feelings of insecurity. He also reported during times of frustration and

hopelessness experiencing passive suicidal ideation without engagement in self-harm.

Most recent medical documentation available from December 2015 documents symptoms

of Posttraumatic Stress Disorder with delayed expression as well as possible

neurocognitive difficulties, though his entire medical file was not available for review at

the time of assessment.

Based on review of file, there is strong and consistent evidence that [the worker] has

experienced neuropsychiatric symptoms as a result of his head injury, as documented by

multiple clinicians within specialized settings. [The worker] has undoubtedly

experienced significant psychosocial stressors stemming from financial problems, failed

attempts at retraining, discontinuation of work in 1999, and the dissolution of his

marriage, leaving him as primary caregiver to his daughter. It appears that psychosocial

factors have aggravated and perpetuated his distress in the context of a protracted

worker's compensation claims dispute, though are not primary factors contributing to the

onset and associated impairment.

The worker had been provided a 25 percent disability pension, but has not been able

to work apart from a brief period following the accident. He has had extensive

involvement in rehabilitation programs. Is it medically likely that his

functional/psychiatric limitations are the cause of his ongoing disability?

[The worker] appears to have completely stopped work in 1999 due to concerns about

poorly controlled "blackouts' and increasing fears of being responsible for an accident in

the context of diminished concentration and alertness. It was noted previously he had

failed attempts at retraining m an alternative field due to feeling overwhelmed with

course material not related to his previous line of employment Despite generally average

performance on neuropsychological tests, his educational history and low-average

intelligence may have been additional barriers to successful retraining as well.

Since discontinuing work in 1999, [the worker] reported persistent problems with

emotional regulation and experienced fluctuating cognitive difficulties in the context of

anxiety and psychosocial stressors. It is opined that it is medically likely that his

persistent functional limitations are related to psychiatric symptoms which are the

primary contributor to his ongoing disability. Review of medical documents the presence

of psychiatric symptoms and functional impairment before the onset of substantial family

Page: 18 Decision No. 1661/15

stressors related to the dissolution of his marriage and requirements to take on a primary

caregiver role with his daughter. Furthermore, he appears to have experienced persistent

difficulties despite numerous supports from family and therapists and has been adherent

with all elements of his treatment, suggesting he was indeed motivated for recovery and

return to work if it were possible.

Please comment on the course of this worker's medical/psychiatric disorders.

Immediately after his head injury in 1985, [the worker] initially presented with primary

physical complaints and was noted to be motivated for recovery. Subclinical signs of

anxiety were noted as early as Feb 1986 but he remained “enthusiastic” about return to

work. Upon change of careers, there is evidence of increasing anxiety prompting

recommendation for counselling in1987. By 1990, concerns regarding his ability to

succeed in training and alternative occupational role were identified, with evidence of

more significant anxiety and depressive symptoms, as identified by several clinicians.

There appear to be periods when he was more productive that he endorsed less

psychological distress, possible due to underreporting. This is consistent with

underlying issues with insecurity and self-esteem, as documented by several providers,

and concerns about further job loss. There is a significant gap in medical information

between 1992 and 2000, which makes determination of difficulties difficult In a

worker's continuity report in 2000, [the worker] endorsed persistent headaches since the

accident, increased irritability and frustration in the context if issues with loss of

consciousness. [The worker] indicated he did not seek care due to concerns about job

loss, but did so when he had a “complete breakdown” in front of his wife.

After specialized assessment in 2002, Dr. Scamvougeras documented fluctuating and

persistent physical, cognitive and psychiatric symptoms which were opined to be related

to the head injury in 1985. His report also documents significant changes observed by

family as a result of the injury. He was started on several anticonvulsant and psychiatric

medications, but appears to have achieved little improvement with ongoing care in the

context of mounting psychosocial stressors. Dr. Oluboka’s reassessment in 2006

provides a similar opinion and also notes a history of marijuana use. Multiple

psychosocial stressors were also noted including marital separation.

In the past five years, there is evidence that [the worker] has experienced increasing

distress, primarily due to prominent financial difficulties and a protracted claims dispute.

Overall, there is insufficient evidence to suggest that he experienced delayed onset of

posttraumatic stress symptoms and more likely has experienced the overall sequelae of

his injury as “traumatic” to his occupational family, and financial trajectory.

Since his head injury in 1985, [the worker] has experienced progressive and fluctuating

psychological difficulties, which are consistent with those who have had significant head

injuries. He described anxiety heightened by cognitive difficulties as well as depression

and hopelessness regarding inability to progress following his injury at the age of 27.

Can you provide any other medical information which you feel would be helpful

to the vice-chair, panel, and parties in this appeal?

Based on review of information, [the worker] did experience a significant head injury,

following which he had a clear decline in his ability to adapt and sustain employment at

his pre-accident levels. It is noted he was in his late 20s at the time of his accident in

1985 and since faced a number of challenges related to persistent physical symptoms,

cognitive difficulties, financial problems, and a disintegration of his family unit. It

appears overall these are consistent with neuropsychiatric symptoms and associated

functional impairments, which is also documented by numerous clinical providers since

1990. Furthermore, there does not appear to be any evidence in the file to suggest [the

worker] has not been providing a valid account of his difficulties.

Page: 19 Decision No. 1661/15

It is important to recognize that traumatic brain injuries (TBIs) and associated

neuropsychiatric sequelae were not well understood at the time of his injury in 1985 and

not well studied to date. In 2012, Rapport conducted a literature review and commented

many studies of prevalence of depression following TBI have not used structured

diagnostic criteria. The author found wide ranges of rates, from 17% to 61%. The risk

factors for development of depression following TBI were noted to be poorly understood,

but past psychiatric history, frontal lesions and atrophy, and family dysfunction were

shown in more than one study to play important roles.

Based on a long-term review of individuals with traumatic brain injuries, psychiatric

disorders are a common comorbidity impacting the long-term prognosis for those

affected. In 2016 Scholten et al. conducted a review of pre- and post-injury prevalence of

and risk factors for anxiety disorders and depressive disorders following traumatic brain

injury (TBI). Overall, prevalence estimates of anxiety and depressive disorders were

19% and 13% prior to TBI, and 21% and 17% in the first year after TBI. They noted that

prevalence estimates increased over time, and indicated high long-term prevalence of

psychiatric disorders (54%), including anxiety disorders (36%) or depressive disorders

(43%). They concluded that a substantial number of patients encounter anxiety and

depressive disorders following TBI, and that these problems persist over time.

Similar findings were made in an earlier 2014 review paper by Jorge and Arciniegas.

They observed depressive disorders following TBI were significantly associated with the

presence of anxiety disorders. The authors noted approximately three quarters of patients

with depression had a coexistent anxiety, consistent with previous studies, major

depression was frequently associated with significant anxiety, a history of affective

illness, and a history of substance misuse. Although the risk of developing depression is

generally regarded as being highest in the first post-injury year, the risk of this condition

remains increased even decades after TBI.

….

(iv) Applicable law and policy

[8] The workplace accident which is the subject of this appeal occurred on May 21, 1985.

Accordingly, the worker’s entitlement to benefits in this appeal is governed by the Pre-1989 Act.

[9] In this appeal, the worker is seeking entitlement to benefits for psychotraumatic

disability. The Board’s policy which addresses such entitlement is included in Operational

Policy Manual (OPM) Document No. 15-04-02. That policy document states in part:

Policy

A worker is entitled to benefits when disability/impairment results from a work-related

personal injury by accident. Disability/impairment includes both physical and emotional

disability/impairment.

Guidelines

General rule

If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable

to a work-related injury or a condition resulting from a work-related injury, entitlement is

granted providing the psychotraumatic disability/impairment became manifest within 5

years of the injury, or within 5 years of the last surgical procedure.

Psychotraumatic disability/impairment is considered to be a temporary condition. Only in

exceptional circumstances is this type of disability/impairment accepted as a permanent

condition.

Page: 20 Decision No. 1661/15

Psychotraumatic disability/impairment resulting from organic brain damage is assessed

as a permanent disability/impairment.

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.

As an indirect result of a physical injury

- emotional reaction to the accident or injury

- severe physical disability/impairment, or

- reaction to the treatment process.

The psychotraumatic disability is shown to be related to extended disablement and to

non-medical, socioeconomic factors, the majority of which can be directly and

clearly related to the work-related injury.

…

(v) The issues under appeal

[10] The sole issue to be determined in this appeal is whether the worker is entitled to benefits

for psychotraumatic disability

(vi) Analysis

[11] In this appeal, the worker sustained a serious head injury which included a traumatic

brain injury. The Tribunal Medical Assessor, Dr. Bender, indicated in his report that, as a result

of the accident on May 21, 1985, the worker “sustained significant craniocerebral injuries” when

he was struck on the head by a diamond drill. The fact that the worker sustained a significant

traumatic brain injury as a result of his work accident is confirmed by the initial medical

information provided by Dr. A.K. Chaudhuri, the neurosurgeon who treated the worker after he

was admitted to hospital following his accident. Dr. Chaudhuri provided a “Follow-up

Neurosurgical Note”, dated May 22, 1985, which stated that the worker’s CT scan “had revealed

a depressed fracture in the left temporal parietal area and cerebral edema from contusion.”

Dr. T.D. McKee, another physician who saw the worker at hospital following his accident

indicated in a report dated May 22, 1985, which indicated that the worker “had severe contusion

to the left head with a skull fracture and probable fracture of the left zygoma and possible

mandible.”

[12] The fact that the worker sustained a severe head injury at the time of the accident is not

contentious in this appeal.

[13] The Board’s policy document allows entitlement to benefits for psychotraumatic

disability where the worker has an “organic brain syndrome secondary to…traumatic head

injury.” Dr. Bender indicated in his report that:

The worker “experienced a number of neuropsychiatric symptoms related to his

head injury in 1985”

Page: 21 Decision No. 1661/15

“Between 1986 to 1989, [the worker] was taking carbamazepine for posttraumatic

seizures, which may have also had mood stabilizing effects and some antianxiety

effects.”

“Following 1989, there are several reports on file which provide a cohesive and

consistent account of progressive psychological difficulties opined to be related to

his traumatic brain injury in 1985” which included “cognitive difficulties, problems

with emotional regulation, anxiety and panic, poorly controlled worry with a

tendency to feel overwhelmed, loss of interest in some previous enjoyed activities,

and self-limiting behaviour in social settings due to anxiety and underlying feelings

of insecurity”

[14] On the basis of the medical information reviewed by Dr. Bender, he concluded:

Based on review of file, there is strong and consistent evidence that [the worker] has

experienced neuropsychiatric symptoms as a result of his head injury, as documented by

multiple clinicians within specialized settings.

[15] I note that some of the medical information on file indicated that during the initial period

following the worker’s head injury, the injury improved, however, in keeping with the views

expressed by Dr. Bender, I find that the worker experienced ongoing psychiatric symptoms as a

result of his head injury, and that he is entitled to benefits for psychotraumatic disability on that

basis.

[16] The Board’s policy also allows for entitlement to benefits for psychotraumatic disability

where “the psychotraumatic disability is shown to be related to extended disablement and to non-

medical, socioeconomic factors, the majority of which can be directly and clearly related to the

work-related injury.” Entitlement is allowed on this basis where a worker experiences

psychological symptoms which are due to a reaction to “socio-economic factors”, such as a lack

of financial resources due to inability to work, which occurs as a direct result of the work injury.

Dr. Bender concluded that this occurred in the worker’s case, noting that:

[The worker] has undoubtedly experienced significant psychosocial stressors stemming

from financial problems, failed attempts at retraining, discontinuation of work in 1999,

and the dissolution of his marriage, leaving him as primary caregiver to his daughter….

[17] Dr. Bender also indicated in his report that it is likely that the worker “has experienced

the overall sequelae of his injury as ‘traumatic’ to his occupational, family and financial

trajectory.”

[18] I find that, in addition to the neuropsychological effects of his injury, the worker is also

entitled to benefits for psychotraumatic disability on the basis that his psychological condition is

“related to extended disablement and to non-medical, socioeconomic factors, the majority of

which can be directly and clearly related to the work-related injury” in keeping with the Board’s

policy document.

[19] I have also considered that one of the factors which apparently influenced the Board’s

decision to deny entitlement for psychotraumatic disability was that the applicable policy states

that “entitlement is granted providing the psychotraumatic disability/impairment became

manifest within 5 years of the injury” and the ARO had concluded that the worker’s psychiatric

impairment did not become manifest within the 5 year period.

Page: 22 Decision No. 1661/15

[20] Tribunal jurisprudence has indicated, however, that the “five year rule” referred to in the

policy document is intended as a guideline, in that psychological symptoms that arise later than

five years beyond the accident date (or the date of the last surgical procedure) may be too remote

from the accident to be considered causally related to the accident. Tribunal decisions have

indicated, however, that entitlement to benefits for psychotraumatic disability may be in order

where the medical information discloses a strong causal connection between psychological

symptoms and the work injury, notwithstanding the fact that the psychological condition may

have arisen more than five years after the accident (see, for example, Decision No. 1939/05,

Decision No. 874/14, and Decision No. 2105/12R).

[21] In any event, based on Dr. Bender’s review of the case materials, I find, on a balance of

probabilities, that the worker’s psychological condition was manifest within five years

subsequent to the accident. He noted that “as early as 1987 it is documented that he was

experiencing anxiety that would benefit from counselling” and that from 1986 to 1989, the

worker had been prescribed anti-seizure medication which may have also had the effect of

treating psychological symptoms such as anxiety.

[22] I note that the medical information prepared while the worker was at the Board’s

Downsview Rehabilitation Centre was somewhat equivocal about whether the worker had

ongoing psychological symptoms. For example, the report of psychologist M. J. Celinski, dated

February 4, 1986, indicated that the worker “presented in a friendly and co-operative manner

without signs of any particular distress” but also that there was “a clear indication of residual

impairment in the patient’s verbal functioning” and that “emotionally, there is some indication of

difficulties in interpersonal relations and a feeling of insecurity along with a tendency to

dissociation between his bodily symptoms and corresponding emotional reactions.” On the basis

of the medical information on file, as reviewed by Dr. Bender, however, I am satisfied, on a

balance of probabilities, that the worker’s psychological condition was manifest within five years

of his accident, and that his psychological symptoms are closely related to his traumatic brain

injury, even where the symptoms arose more than five years post accident.

[23] Based on Dr. Bender’s review of the medical evidence on file, I agree with Dr. Bender’s

statement and find that, in the worker’s case, there is “strong and consistent evidence that [the

worker] has experienced neuropsychiatric symptoms as a result of his head injury.” I also find

that the worker has experienced psychological symptoms due to his reaction to socioeconomic

and financial factors which are a direct result of his disablement caused by the accident.

Accordingly, on a balance of probabilities, the worker is entitled to benefits for psychotraumatic

disability. The issue of the nature and extent of the worker’s entitlement to benefits for

psychotraumatic disability is remitted back to the Board for determination.

Page: 23 Decision No. 1661/15

DISPOSITION

[24] The appeal is allowed.

1. The worker is entitled to benefits for psychotraumatic disability.

2. The Board is directed to determine the nature and extent of the worker’s entitlement

to benefits for psychotraumatic disability.

DATED: October 21, 2016

SIGNED: M. Crystal