WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090038
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: May 07, 2009
ATTENDEES: Worker, Worker Representative
The employer was to attend but, on the date of hearing, their company representative called advising that they were ill and would be unable to attend. They gave directive to proceed with the hearing and that they would provide a written submission, post-hearing. However, despite several follow-ups by this Appeals Resolution Officer, no employer submission was received to date.
ISSUES
The worker objects to the denial of psychotraumatic disability entitlement and, closure of loss of earnings benefits, effective May 16, 2008.
HOW THE ISSUES ARISE
On April 9, 2006, at the age of 36 and while then employed as an iron worker, the worker was walking in a poorly lit area when her foot caught on an unmarked plate, causing her to fall forward onto her outstretched non-dominant right hand and right knee. She also caught her right leg on a bolt that was jutting out. The worker was initially treated in emergency where she was diagnosed with a commuted fracture of the right distal radius and contusion with open wound to the right leg. Subsequent medical evidence also confirmed a right knee meniscal tear. Entitlement was accepted for the right wrist, right leg and right knee injuries.
The worker underwent closed reduction and wound debridement for an open lesion around the right wrist fracture site on the date of injury. As well, the right leg wound was sutured. There were then several subsequent comprehensive medical assessments to include attendance at a Functional Restoration Program (FRP) from February 5 to March 16, 2007.
On October 5, 2007, arthroscopic surgery was carried out on the right knee. The worker went on to permanent impairment assessment for her right wrist and right knee impairments and, on September 13, 2008, was granted a 20% non-economic loss award.
In the interim there were several periods of return to modified duties with the accident employer in keeping with permanent right wrist and right knee restrictions. In the latest return to work, the worker was returned to administrative duties in June 2007, with interim lost time for the October 2007 surgery, followed by a return to work. She attended a psychologist as of January 7, 2008 and laid off work on January 22, 2008, claiming total impairment due to psychiatric disability.
Following an independent psychiatric assessment and review by a Workplace Safety and Insurance Board (WSIB) psychological consultant, the claims adjudicator determined there was no evidence of a psychotraumatic disability resulting from the work injuries. Consequently, psychotraumatic disability entitlement and loss of earnings (LOE) benefits beyond May 16, 2008, were denied (May 2, 2008 decision).
The worker objected to this latest decision and the matters of psychotraumatic disability entitlement and further LOE benefits are now under consideration.
AUTHORITY
Operational policies:
15-04-02, Psychotraumatic Disability
18-03-02, Payment of Loss of Earnings Benefits
TESTIMONY AND SUBMISSIONS
The worker testified under oath. Her representative made submissions on the worker’s behalf. As aforementioned, the employer did not attend the hearing and failed to provide any post-hearing submission to date.
The worker testified that she had been a single mother for 14 years prior to the workplace accident. In this interval she had no problems in fulfilling her care giver and financial responsibilities. She described herself as an outgoing personable and hardworking individual. She had suffered one prior workplace accident with no lost time and no ongoing problems. She had worked as an apprentice iron worker for a little over 4 years before the workplace accident. Over this interval, she had worked for 5 employers and enjoyed the duties and the associated wages. She had not missed work for reasons other than work shortages.
The worker added that she did not suffer from any previous psychological difficulties nor sought any psychological treatment prior to the work injury of April 2006. Her current physician had been her family doctor for over 20 years and, before April 2006, she had not seen him for any depression or other psychological issues.
The worker indicated that the situation, however, changed after her April 9, 2006 workplace accident. In that accident she sustained a fracture of her right wrist, injured her right knee and suffered a hole in her right leg that required stitching. She needed surgery initially to her arm and later to her knee.
The worker stated that after the accident, she was only off work for a few weeks, returning in late April 2006, to one armed duties while still wearing a cast. She was on medication and driving with one arm and in May 2006, was involved in a single vehicle motor vehicle accident, but did not suffer any injuries and only lost a few days from work. It was then that the WSIB decided that it was not safe for her to drive and the employer paid to have her picked up and dropped off to work, then to physiotherapy and then back to work. She was transferred to office work in Oshawa. There she did very little work; a little photocopying, emptying garbage, checking phones and two way radios, but mainly she just sat around. This lasted from around May 2006 to November/December 2006.
The worker indicated that during her return to work, she felt awful, was very tearful, contemplating how she had lost the job and future she had worked so hard to achieve. It was when she relayed her concerns to the adjudicator about the meaningless duties, and when the WSIB was to view the job duties that her employer laid her off in early 2007. She was then able to attend the arranged Functional Restoration Program on a full time basis.
The worker noted that while she looked forward to the FRP teaching her real life solutions to deal with her pain and make improvements, she found the program rather took a theoretical approach. She tried some of the strategies taught, but physically could not participate in others like weights and the treadmill. In the initial phsychological sessions, she was very closed minded, angry, felt hopeless and that her life was over. By the end of the sessions, she was more than willing to accept the help she needed. She noted, however, that the program focused more on personal rather than work related events. She clarified that she was frustrated by the time she arrived at the FRP, having had to travel 3 to 4 hours daily by train. The worker admitted that during the FRP, she was pregnant and, as this was unplanned, the pregnancy was terminated. The worker’s testimony was that to her, this was not a big deal, was done and over with, missing only a few days from the FRP. She considered that the WSIB made more of a big deal of it than she did.
The worker stated that several weeks after the FRP discharge, her employer offered modified duties as an estimator in Mississauga. The drive to work was a nightmare and the duties again involved very little. She mainly sat at a desk, did a little filing and clerical work, but was never formally trained as an estimator. A mediator became involved and then the situation at work grew worse, with co-workers being rude and not believing her injuries and suffering. She could no longer take the pain, stress and depression associated with her injuries, and sought help from her family doctor.
The worker’s physician placed her on Prozac and referred her to a psychologist, as had been recommended by the FRP. Her doctor and psychologist, Dr. Geddes, considered her psychological condition significant and authorized her off work in January 2008. She found the sessions with Dr. Geddes helpful and very little time was spent talking about the abortion issue, as this was just not a big deal for the worker. She noted that, as soon as she was deriving some benefit from psychological treatment, the treatment was discontinued by the WSIB. She paid for