Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100009 Objection By: Worker Worker: Participating Representative: Worker Employer: Not Participating
Issue
The worker objects to the case manager’s decision of May 4, 2009 and requests psychotraumatic entitlement.
How the Issue Arises
On October 13, 2006 this 41 year old labourer sustained fractures to his right ankle (the distal right tibia and fibula) when a steel beam, weighing approximately 1500 pounds tipped forward and hit the worker’s lower right leg and ankle. The worker subsequently required surgical repair, which involved an open reduction and internal fixation.
The worker was off work from October 13, 2006, the date of the accident. The worker attempted a 6 week graduated return to work plan effective May 3, 2007. However the worker did not increase his hours beyond 5 hours per day and did not return to the employer after June 7, 2007. Benefits were closed effective June 8, 2007 as it was determined that the worker was fit for suitable work that was available, at no wage loss.
The case manager reviewed all of the available medical information and concluded that there was no entitlement to psychotraumatic entitlement or any evidence to support that the worker’s continued symptoms were related to his compensable injury. As such, the denial of psychotraumatic entitlement was upheld.
The worker’s objection to the denial of entitlement on a psychotraumatic basis is the issue now before the Appeals Resolution Officer.
Authority
Operational Policy Manual Document:
11-01-05 Determining Maximum Medical Recovery (MMR)
15-04-02 Psychotraumatic Disability
Resolution Method and Process
Contact was made with the worker representative who agreed for the appeals resolution officer to proceed to a decision based on the information contained within the claim record. The worker representative confirmed the worker’s submissions are complete as on record and that this matter could now be resolved with a written decision, without an oral hearing.
The employer did not return a participant form and was therefore not contacted.
Assessment of the Evidence
In considering this objection, I have had regard for the evidence on file, the interested party’s view on the matter, the medical reports and opinions, as well as the relevant WSIB policies and legislation.
The case manager denied psychotraumatic entitlement in this claim file based on the opinion obtained from the Workplace Safety and Insurance Board (WSIB) Psychologist. However it is noted that the WSIB Psychologist suggested that the case manager should consider requesting a full assessment from the Psychological Trauma Program (PTP) to clarify the worker’s diagnosis, provide treatment direction, as well as an estimate for a possible return to work.
The case manager was of the opinion that the PTP clinic does not determine entitlement or compatibility and that since psychotraumatic entitlement was denied, this referral would be unnecessary.
It is the worker representative’s position that this worker has been under the care of a Psychiatrist, only following this workplace injury, and therefore the psychotraumatic condition is a direct result of the compensable injury and entitlement should be allowed.
WSIB policy 15-04-02 states in part:
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.
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.
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.
It is under the second criteria that this case merits consideration.
From the information contained in the claim file and both the employer and worker’s description of the accident (on report of injury forms 6 and 7), it is clear that a very heavy beam tipped forward and fell, hitting the worker’s lower right leg and ankle. There is no dispute concerning the accident history details or the ensuing medical attention. What is in dispute is as to whether the worker developed psychotraumatic issues following this workplace accident.
When I assess all of the pertinent information in the claim file, I find that the worker did sustain psychotraumatic entitlement as a result of this workplace accident. In reaching this conclusion, I had regard for all of the available evidence, however found the following details particularly relevant:
It is noted that the case manager began to actively encourage the worker to return to suitable work, with the employer, as of February 21, 2007 (per memo 18).
Specialist, Dr. Avila, in report dated April 4, 2007 opines “I hope that WSIB supports this gentleman who unfortunately is still suffering from pain and disability and certainly cannot be engaged in any work related activity.” The worker was to be seen again in 6 months to see if there was any improvement in order to commence vocational retraining if he could not tolerate weight bearing activities at the working environment.
The WSIB medical consultant (memo 32 of April 25, 2007) notes that the January 2, 2007 medical reports reveal that the fracture line was still visible and that the worker had ongoing pain. The medical consultant opines that this worker “has NOT had an ideal recovery from his traumatic injury.”
A graduated return to work plan was put into effect as of May 3, 2007. The worker was unable to increase beyond 5 hours of work per day as of June 7, 2007. As such benefits were closed as it was determined that the employer had modified work available at full wages but the worker was found to be non cooperative.
Medical reports note that the worker was experiencing ongoing difficulties in performing modified work.
Another WSIB medical consultant (memo 51 of August 20, 2007) made arrangements for the worker to be referred to the WSIB lower extremity specialty clinic for an assessment.
Toronto Western Hospital (TWH) WSIB Foot and Ankle Specialty Program report of September 10, 2007 notes that the worker’s job is classified as “heavy” level work. The work involves frequently handling loads up to 50 pounds, and handling loads up to 75 pounds on an occasional basis. The worker’s pre-accident job duties involved making cement blocks for construction. His job consisted of handling pieces of 20-25 kg. wood. It is noted that the worker reported experiencing very frequent nightmares, and continuously experiencing thoughts of his accident. The worker reported being extremely fearful of returning to work, due to the nature of the pre-accident job.
The above referenced TWH report opines that “Although the medical team indicated he may be capable of sedentary level duties, this [return to work coordinator] strongly recommends that prior to any attempt at a return to work, [the worker] complete a psychological screen, for the following reasons (boldness added for emphasis):
- [The worker] reported experiencing feelings of depression and low self worth.
- [The worker] reported experiencing repeated nightmares and recurring thoughts of his injury.
- [The worker] presented as tearful and glossy eyed while discussing the cause of his injury and his current functional abilities.
- [The worker] expressed tremendous fear of re-injury.
The September 10, 2007 consultation report suggested that medical and psychological clearance for a return to work should be obtained.
Dr. Kakar, Psychiatrist submitted the first psychiatric report dated October 22, 2007. He notes that the worker “has nightmares of the accident. He has flash backs of the accident. He has acute anxiety attacks. …He cannot cope…He has never seen a psychiatrist before…He has always been emotionally stable prior to this. He has never been diagnosed with any psychiatric problems prior to this. He has never been hospitalized for psychiatric problems…He came to Canada in 1990. He worked in a factory for 15 years [before this workplace injury].” The Psychiatrist notes that the worker is “currently suffering from severe major depression psychotic, posttraumatic stress disorder and chronic pain syndrome.”
Dr. Kakar’s report of April 9, 2008 notes that the worker “is still extremely depressed….He has nightmares of the accident. He has flash backs of the accident. He has acute anxiety attacks….He is totally disabled and is and will be unable to do all or any work. He would need ongoing cognitive and supportive psychotherapy.”
Dr. Kakar’s report of November 24, 2008 once again points out that the worker had never seen a psychiatrist before this workplace injury. He had always been emotionally stable. “He has become an empty shell of self”. The Psychiatrist indicates that the worker “has been suffering from the physical and emotional effects of his workplace injury. Response to treatment has been poor.”
The WSIB case manager requested an opinion from the WSIB psychologist as to whether there is psychological entitlement in this claim. As per memo 62, dated March 30, 2009 the WSIB psychologist opines “The symptoms described are to be considered serious and although plausible, quite rare following a musculoskeletal insult.” The WSIB specialist indicates that the case manager “should consider requesting a full assessment from the Psychological Trauma Program (PTP) to clarify [the worker’s] diagnosis; this assessment should also provide treatment directions as well as an estimate for a possible return to work.”
Dr. Kakar’s report of April 28, 2009 again reiterates that the worker is suffering from severe major depression psychotic, posttraumatic stress disorder as a result of the workplace injury.
I note that the case manager interpreted the WSIB psychologist’s comments to read that “there is no psychological entitlement” as a result of the worker’s compensable injury. Hence the case manager confirmed the decision to deny psychotraumatic entitlement in this claim.
It is my finding that there have been various opinions in the claim file regarding entitlement to psychotraumatic disability. It is my opinion that the worker does have entitlement on a psychotraumatic basis as a result of the workplace injury. In the absence of any evidence to demonstrate that the psychological factors were non accident related, I place significant weight on the evidence which supports that the worker’s psychotraumatic symptoms began following this workplace accident. I find that the medical reports confirm that the psychotraumatic symptoms began following this workplace accident. The worker has consistently related his problems to the workplace accident and I have no evidence to suggest that it was otherwise.
There is no evidence that the worker had a pre-existing psychological condition and that he required any previous treatment. The worker continued to function normally in the workplace and earn a living until the day of the compensable accident. In fact the information on file confirms that the worker had been employed in another factory for 15 years prior to starting employment with this company. There is no indication of any prior WSIB claims or psychological attention prior to this workplace injury.
The medical documentation indicates the worker was experiencing psychological problems only following this workplace injury. I find that the evidence on file supports psychotraumatic disability is the responsibility of this claim file as it is an indirect result of the physical injury that the worker sustained on October 13, 2006.
The WSIB psychologist suggests that the symptoms described are to be considered serious and although plausible, quite rare. Nonetheless there is no evidence to suggest that it was not a result of the workplace injury. I find that the psychotraumatic impairment did evolve as a result of the work related accident/injury. The case manager determined that because the worker had not continued with active treatment one must assume that the condition had resolved.
Taking into account the fact that the worker is not employed and presumably has no funds to pay for treatment and that his family doctor agreed to monitor his care and medication, it is my view that the lack of ongoing active treatment from a psychiatrist or psychologist does not support the opinion that the condition had resolved.
In conclusion, I accept that the worker has been left with psychotraumatic impairment as a result of this workplace injury. It is my opinion that psychotraumatic impairment is accepted as a result of this workplace injury and that the worker is to be accordingly assessed for psychotraumatic treatment.
Therefore in conclusion, in considering all of the evidence, I find the worker does have entitlement on a psychotraumatic basis.
Conclusion
I have concluded on the basis of my examination of the evidence that psychotraumatic entitlement is granted as a sequelae of this original accident and that further psychological intervention is therefore to be arranged at this time.
The operating area is directed to process full benefits while the worker undergoes an up to date psychotraumatic assessment. The extent and duration of psychotraumatic entitlement is left to the discretion of the operating area.
The operating area is directed to obtain up to date medical information to determine if the worker has reached maximum medical (MMR) recovery. Once MMR has been achieved, the operating area is directed to determine whether there is evidence on a permanent impairment on both a psychotraumatic and/or organic basis. The operating area may wish to give consideration to a social worker assessment in order to assist with this review.
Entitlement is in order for psychotraumatic disability.
The worker’s objection is therefore allowed.
DATED February 4, 2010
S. Bennett
Appeals Resolution Officer
Appeals Branch