Worker v. Employer, 2010 CanLII 13852

WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100018

OBJECTION BY: Worker

HEARING DATES: October 21, 2009, January 28, 2010

ATTENDEES: Worker, Worker Representative, Employer,

OBSERVERS:: Individual From The Employer

Individual From The Union

ISSUE

The worker’s representative on behalf of the worker has appealed the case manager’s (CM) decisions dated April 21, 2005; August 17, 2005; September 20, 2005; April 22, 2008; and January 12, 2009.

The CM has concluded that the worker is not entitled to loss of earnings (LOE) benefits for the following periods:

• January 15 to February 22, 2005;
• March 4 and March 7, 2005;
• March 14 to May 31, 2005 less time worked, and LOE benefits subsequent to June 1, 2005.

The CM has also concluded that the worker is not entitled to a permanent disability assessment or a non-economic loss (NEL) assessment and an expansion of entitlement to include psychotraumatic disability.

HOW THE ISSUE ARISES

Claim xxxx2118:

On July 27, 1987 this labourer slipped on a curb while loading garbage bags into a packer injuring his lower back. He was diagnosed with a lumbar strain and treatment was provided on a conservative basis to include medication. The record indicates that the worker returned to his regular employment on August 10, 1987.

Claim xxxx3072:

On September 14, 1988 this labourer was loading bags of dirt into a packer and injured his lower back. He was diagnosed with a back sprain and treatment was provided on a conservative basis to include lost time from September 15, 1988.

Claim xxxx8012:

On August 23, 1989 this labourer driver slipped off the truck onto a curb and twisted his left ankle. He was diagnosed with an inversion injury of the left ankle and treatment was provided conservatively. The record indicates that the worker was off work from August 24 to September 1, 1989 returning to his regular employment.

Claim xxxx0651:

On March 20, 1990 this garbage collector was lifting an electric generator into the back of a pickup truck and injured his lower back. There is no medical information contained on the claim file record.

Claim xxxx2596:

On March 13, 2003 this driver loader experienced an onset of lower back pain which he related to the bouncing about in the truck on substandard seats. He was diagnosed with mechanical low back pain and he returned to modified work for a period of approximately three weeks.

The claim was accepted for a no lost time injury.

Claim xxxx7248:

On March 14, 2005 this worker was lifting a box spring with a partner and slipped on ice and injured his lower back. The claim was established for this injury under xxxx1288 which was then amalgamated into the above number. The worker was diagnosed with a low back strain and recommended a return to modified work. The worker was treated conservatively to include chiropractic manipulation and the record indicates the worker returned to modified employment on March 21, 2005.

A CT Scan was conducted in April 2005 which outlined moderate degenerative disc disease (DDD) from the L2 to LS-1 level.

The worker claimed ongoing entitlement for a lower back injury and also requested entitlement under the psychotraumatic policy.

The CM reviewed the clinical documentation on record in conjunction with the WSIB’s medical consultant and concluded that the worker had experienced a minor compensable aggravation of a pre-existing underlying non-compensable injury and the worker had in fact returned to his pre-injury level of functioning.

The CM also concluded that the worker was not entitled to an extension of benefits to include psychotraumatic impairment noting non-occupational factors were contributing to the worker’s level of depression.

The worker’s representative on behalf of the worker has appealed the above decisions and requested LOE benefits for the above outlined periods and these issues are now before the appeals resolution officer (ARO) for further consideration.

AUTHORITY

The ARO will consider the worker representative’s appeal in light of Operational Policy Documents:

11-01-05 – Aggravation Basis;

15-03-02 – Traumatic Mental Stress

15-04-02 – Psychotraumatic Disability;

18-03-02 – Payment of LOE Benefits.

EXHIBITS

The worker’s representative supplied the following documentation to the record at the time of the hearing.

A treatment memorandum dated March 15, 2005, letters to the worker’s health care provider dated May 31; June 15, 2005; June 26; August 9; 2005.

Letters to the worker dated May 31; June 17; August 22, 2005.

A copy of an e-mail dated Friday, August 12, 2005 a letter from the worker dated June 6, 2005 and July 24, 2006.

The employer supplied the worker’s timecards from January 1, 2000 to October 21, 2009. The above was accepted for the record by the ARO.

ASSESSMENT OF THE EVIDENCE

The worker provided oral testimony under oath. The worker’s representative made oral and written submissions on behalf of the worker. The employer’s representative made oral and written submissions on behalf of the employer.

The worker confirmed he began his employment with the employer as a probationary employee in approximately 1977. He did confirm for the record undergoing or being involved in a motor vehicle accident (MVA) in approximately 1976 injuring his neck. He denied any ongoing difficulties as a result of this incident.

The worker also denied any injury taking place to the lower back as a result of this MVA.

He states that when he began his employment with the accident employer he was in “great shape.” He states he was not experiencing any ongoing physical ailments and was hired for “spring cleanup” which encompassed the curb side removal of all household items.

He states he remained under the classification of a labourer until approximately 1992 at which time he became a sanitation operator.

He does confirm he remained as a full time employee with the city. He states that the sanitation operators were required to pick up and have a “take all” contract removing all types of household trash. He states that as a result his pre-accident occupation was “very heavy.” He states that he asked for “training” on numerous occasions. He states that his back problems began as a result of the take all directions and he states that he and his partner would average approximately 25 tonnes per day.

He confirmed the accident histories on record encompassing his ongoing lower back problems.

Under claim xxxx3072 he states the information contained on the claim file record is inaccurate advising that the picking up of the litter did not include lifting bags of dirt. It was in fact bags of concrete.

He also confirms for the record under claim xxxx3072 that he was the coach of the baseball team for the city and did not really participate in the baseball game on the date of accident. He states he was only there for approximately two innings.

Once again he confirms the accident history on record outlined on March 20, 1990 indicating he lost one day from work. He states his lower back was always “sore” and he bid on and took the sanitation jobs offered by the city due to an increase in pay rate. He states he would normally be assigned to the landfill site which was in fact easier physically.

He states he was assigned to commercial collection on nights and did this for approximately seven years indicating that only seven to eight tonnes of trash would be removed versus the 20 tonnes during the day.

He does confirm injuring his ankle as outlined on the record and indicates he was placed back on days by the employer. He states as a result of returning his condition worsened with the increased workload. He does confirm having an absentee rate and took days off for his lower back and reported them as sick.

He does indicate that he called the Ministry of Environment in 1987 for irregularities he noted in the landfill site and has “paid for it ever since.”

He does confirm having a pre-existing depression due to a marital break up; his father having a heart attack and his dog dying. He does confirm receiving psychiatric intervention including medication for approximately one year. He states subsequent to this treatment he was fine after that and in 2004 began taking psychiatric medication again.

He confirms the evidence contained on record surrounding the period of March 2003 stating his “back was done.” He does confirm continuing with modified employment and eventually returned to his driver loader duties. He states that in March 2003 the “pain intensified” but was always in the same area. He states that the psychological intervention occurring in August 2004 when he first saw Dr. Kumar it was due to a “relationship break up and a bad back.” He states “he could not do anything and had no life.” He states he was limited in all activities such as golf, baseball. He also confirms not consuming any alcohol in the last ten to 15 years.

He states in late 2004 his general practitioner provided physical restrictions to him on a permanent basis. He states he was only placed on driving duties but had difficulty with the prolonged sitting in the trucks on substandard seats.

He also confirms that in the fall of 2004 he was experiencing some difficulties with his co-workers and confirms the evidence on record indicating that there were things being done to him at work which caused him significant anxiety.

He particularly noted the fecal matter being smeared on the handles of his work truck and the placement of a dead rat. He states it was “just another example of the attitude toward me.” He states he did find this very disturbing. He reported it to the employer but is under the impression that the employer did not take any action.

He does confirm being suspended but is not aware of the reason for suspension. He states that he believes the discipline was due to his “blowing the whistle” at the landfill site.

He does confirm the modified work being offered by the employer at their water plant. Does not believe it was suitable. He states he was provided with a small set of shears and told to remove the weeds from a chain link fence.

He also confirms an offer of modified employment painting garbage bins. He states he wished the garbage bin to be sanitized before he worked on them and indicated they were not done. He states he could not perform the modified duties as he could not paint given the condition of his back.

He also believes that he was forced into E2 work which is a lower paying position. He states he was unable to perform this type of work due to the walking on uneven ground.

He also states that the work at the water plant he was performing by himself and that he was “not allowed to use the bathrooms.” He states he was informed to go to another station which was approximately 20 to 25 minutes away.

He states he was then transferred to a downtown location at which time he was informed he would pick up trash on the city streets with a grabber.

He states that on his last day worked his supervisor was “flipping out on me.” He also states that this individual advised him that the employer “wants you gone.” He states that following this his psychological condition worsened. He states he was in severe lower back discomfort and believes the ongoing lower back difficulties were due to his work in general and the specific incidents.

The worker also confirmed additional modified work being offered to him such as meter repair. He also was offered a position of picking up litter along the fence lines but did not wish to return to the landfill site for fear of the Cancer causing agents that were put into the dumpsite. He also confirms being offered employment at the weigh scale but could not do it because of “the air conditioning.”

He does not believe he was treated fairly as others were provided with “better modified jobs.”

He does confirm that in September 2006 on his last day worked his supervisor “started at me” and “broke he had just had enough.” He states he did see the psychiatrist the same day and does not believe that he could continue with the work provided by the employer due to his psychological and physical impairments.

He does confirm having a MVA in May 2007, injuring his neck and shoulder which remains a bit of a problem to the present time. He does not believe there was any significant change in the activities of his daily living as a result of the injuries sustained in the MVA in May 2007.

He also indicated that he was informed by various individuals that the employer wished him gone and accused one of the hearing participants suggesting that this was the case.

The employer requested an adjournment of the hearing to consider calling additional witnesses on their behalf. The request was granted by the ARO and the hearing was reconvened January 28, 2010 to hearing final submissions.

The worker’s representative asked that the ARO address five issues ranging from allowance of the claim(s) PD/PI, LOE to psychotraumatic entitlement.

He submits that the granting of entitlement on an aggravation basis does not reflect the evidence on record. He notes that the worker does not present with having a pre-existing that would present as a bar to ongoing entitlement.

He suggests that the clinical evidence does support a permanent disability (PD) resulting from the accident(s) as early as the late 1980’s. In the alternative he submits that the worker developed a permanent impairment (PI) beginning during the period of 2003-05.

He notes that the worker did experience a minor injury as a result of a MVA in 1976 but did not display any ongoing difficulties as a result and indeed engaged in labour intensive employment subsequent to this event.

He suggests that in light of the worker’s testimony, it is apparent that the worker’s lower back difficulties began in 1987-88 without an abatement of symptoms since that time. He submits that the medical evidence does provide compatibility of diagnoses between the original symptoms and the worker’s present difficulties.

He submits that the lack of medical and claims continuity can be explained due to the fact that the worker was engaged in a lighter form of work for the employer during the 1990’s, specifically the duties associated with the commercial pick-up night duties. During the 90’s the worker would not have had to engage in the heavier manual labour aspects of garbage collection, thereby reducing the difficulties he (the worker) was experiencing resulting in a reduction or cessation of any complaints or need for medical attention.

He suggests that the worker sought out this form of employment due to the ongoing difficulties he was experiencing.

Furthermore, he notes that subsequent to the March 2003 accident permanent restrictions are put in place by the attending physicians thereby supporting the development of permanent work related impairment in eth worker’s lower back. He points to the MRI results as further clinical proof of a PI stemming for the worker accidents. He submits that the worker now presents as an employee with a bad back who continues to work in spite of the ongoing difficulties culminating in a stoppage of employment due to the PI.

The record indicates that the worker presents with a pre-existing non-organic condition. He suggests that the worker has been forthright in his presentation and has not attempted to reduce or minimize the pre-existing history. He suggests that the worker, by virtue of the ongoing lower back symptoms and the difficulties the worker was experiencing with his co-workers, began to reappear in September 2004.

He notes there is no evidence that the worker was experiencing any ongoing non-organic symptoms prior to s the fall of 2004. He submits that the “disturbing” events coupled with the lack of action displayed by the employer in dealing with these events lead to the reactionary depression experienced by the worker in the fall or 2004 and spring of 2005.

He notes Dr Kumar’s report of July 14 2008 supports the work related cause of the worker’s depression in addition he notes that Dr Bohdanowicz suggests in November 2008 that the worker had developed a reactive depression due to the chronic lower back pain and difficulties with his employer.

The worker’s representative submits that the worker presents as totally disabled as a result of the lower back and depressive symptoms and that the worker has been declared unable to work through findings documented by O.M.E.R.S, C.P.P., and the employer’s insurance carrier. He submits that the W.S.I.B. should “fall into place” and make a similar finding.

The documentary evidence shows that the worker was actively engaged in attempts to remain at work in spite of the lower back difficulties subsequent to 2004 and notes that the various attempts to provide the worker with suitable employment failed. In particular the worker’s representative the failed attempts at the water plant and the offer to make the worker pick up trash in the downtown area, would not honour the physical restrictions placed upon the worker.

He suggests that these two offers of modified employment can be perceived as punitive in nature compounding the non-organic difficulties being experienced by the worker. These offers where followed by a “verbal attack” made by a supervisor toward the worker resulted in a permanent lay-off from work. He suggests therefore the worker should receive full LOE benefits subsequent to the last day of work on September 13, 2006.

He submits following this episode the employer has failed to produce any other offer of modified employment, suggesting that that was their solution to this worker. He submits that the balance of evidence falls in favour of the worker pertaining to the development of a PD/PI all claimed recurrences and the expansion of entitlement to include the depressive symptoms.

The employer reviewed the available evidence and concluded that the worker does indeed present with a pre-existing/co-existing condition in the form of degenerative changes in the spine. She notes that the initial clinical evidence only suggests that the worker experienced minor strains/sprains to eth lower back and did not develop any PD as a result of these minor accidents.

She notes that there is a large gap in any complaints of problems or medical attention during the 1990’s. She submits that in contrast to the suggestion that the worker transferred to night commercial collection duties there is evidence, other than the testimony supplied by the worker in support of his appeal, to suggest that the transfer was made due to any alleged lower back problems.

She notes the clinical evidence on record and cites the radiological examinations which demonstrate that the worker presents with degenerative disc disease (DDD) which cannot be found to be a result of any accident or job related function. She notes both the CT Scan of April 2005 and MRI exam of November 2006 suggest the spinal stenosis being a result of the underlying DDD.

She speaks to the request for LOE benefits for the periods of January 5, to February 22, 2005 along with the March 4-7 2005 and notes that the worker claimed Sickness and accident benefits and did not seek medical attention respectively. She notes that by April 2005 the worker’s claim for lost time is no longer centred on the lower back symptoms but instead for depressive issues.

She suggests that throughout the entire period of claimed benefits the employer has always been able to offer modified work within the worker’s documented capabilities. She further suggests that modified work can and is made available to the worker to the present time.

She notes that the contemporaneous evidence shows that in spite the “employer taking great pains” to provide modified work to the worker he “always found fault with the modified duties”.

With respect to the claim for psychotraumatic impairment she submits that the presented evidence does not meet the operational policy for acceptance. She notes that the worker presents with a significant pre-existing condition. She cites the June 22, 1990 report from

Dr. Manchada and interprets the findings suggesting that the difficulties that the worker may have experienced during his employment were due largely to his personality and self induced behaviours.

She also suggests that in light of Dr. Sadek report of February 24, 2000 that the worker’s ongoing psychological difficulties are due to ongoing personality issues and not a result of the worker’s employment.

She also submits that the evidence does suggest that subsequent to the last day worked the worker has been involved in two MVA which have permanently worsened the worker symptoms in the lower back. She submits that the evidence does not support the worker claim for benefits.

The worker suggested that he does not feel that he has been treated fairly by the employer and cites that lack of training he received over the years, in spite of his repeated requests. He believes that he was not able to advance in his career as a result of the treatment at the hands of supervision and believes that his reporting of improper usage of the landfill sight caused him considerable difficulties with his career.

He states that he longer has a life as he is not able to engage in any sporting or social activities due to the ongoing discomfort that he experiences.

The contemporaneous evidence on record begins with the initial injury occurring in July 1987; at the time the worker was employed as a collector and slipped on a curb while holding two bags of garbage. He sustained a lumber strain and treatment consisted of medication and rest. The record indicates that the worker returned to his regular employment as a collector by

August 10, 1987. No further activity is recorded, consequently it suggests that the worker experienced only a minor injury stemming for this accident as no significant treatment or suggestion of ongoing difficulties are documented.

There are notations made by the family doctor in February 1988 of two visits for complaints of lower back discomfort yet no history of injury is provided. The next note is dated March 4, 1988 of “ROM (range of motion) good RTW” there are no further entries for any low back complaints until the next documented accident, at which time judging by the accident history the worker is indeed capable of the heavy lifting of a collector.

The next evidence of injury to the lower back is contained in claim xxxx3072 which records loading bags of “dirt” into a packer on September 14, 1988. The worker testified to the contents being concrete and not dirt. Notwithstanding the contents of the bags it is the diagnosed condition that is paramount in establishing whether a permanent injury results from the described accident.

Once again the worker sustained a sprain and was treated conservatively and remained off work for a period of four days. On examination the worker presented with tenderness, muscular spasm and a decreased lumber lordosis. Of particular note is the worker’s response in explaining why he changed treating practitioners after seeing the chiropractor. He suggested that “…the medical doctor should be aware of his condition in case it became worse.”

The record is absent for any additional compliant of problems voiced by the worker pertaining to back pain beyond the initial accident. By virtue of the absence of any record of lower back problems made by the GP the condition did not become worse.

The next available documentation with respect to the worker‘s lower back is the incident described in xxxx0651 occurring March 20, 1990. The record is absent of any clinical evidence and it does not appear that any time from work was lost by the worker; hence it does not support any ongoing difficulties or PD would have resulted for this or the preceding accidents as the worker was indeed capable of resuming the heavy nature of the collector’s duties.

A study of the family doctor’s notes between 1995 and 2003 despite almost monthly to bimonthly visits does not contain any notations concerning lower back complaints made by the worker.

By 2003 the worker complained of an onset of lower back pain as documented in xxxx2596. The diagnosis was that of mechanical low back pain. On examination, the worker was noted to possess a full range of motion with defuse tenderness and a normal neurological presentation. Modified work over a three week period was recommended. The GP suggested that the worker return his regular duties on April 14, 2003 (notation April 10, 2003).

Once again this would support a conclusion that the worker had indeed recovered from this minor bout of lower back pain stemming from work activities. Notwithstanding the testimony of the worker suggesting that his “back was done” at this time the contemporaneous evidence of the GP would not support this conclusion. Clearly, the clinical notes do not mirror the worker’s remarks as the reported radiological evidence shows “normal degenerative changes” (March 28, 2003).

In claim xxxx7248 two separate accident histories and claims have been amalgamated concerning accident dates of March 3, 2005 and March 14, 2005. The worker relayed that he experienced an onset of lower back discomfort due to substandard truck seats, then while assisting a co-worker lifting a mattress/box spring he injured his lower back.

The initial clinical information is contained in the GP’s report of March 7, 2005 which describes an onset of low back pain due to the heavy nature of work over 30 years. The diagnosis put forth is that of a strain DDD at L5-S1.

The worker underwent a CT Scan April 25, 2005 which reported a multi-level DDD from L2 to S1. Specifically, disc bulging at L2-3 impressing on the Thecal sac with spinal Stenosis “related to DDD at L4-5 and osteophyte formation at L5-S1.

The presence of the spinal stenosis and reported multi-level DDD would not be medically compatible with a recent injury of only some five prior. The development of the degenerative changes takes time to present themselves radiologically. While the diagnosis of the strain would be in keeping with the accident history described.

The minor strain presented by the accident of March 14, 2005 was again treated conservatively and the worker was returned to modified employment. The question here that needs to be addressed is whether the worker experienced a permanent aggravation of an underlying and progressing DDD.

Of particular note concerning the DDD is that the worker presents with a broad condition of degeneration which also includes the cervical spine as evidenced in the CT Scan of May 17, 2007 which records as follows;

“There is prominent degenerative change. There is an ossification resting between the dens and lateral mass of C1. This is likely a large osteophyte. There is no significant prevertebral soft tissue swelling. Posterior disc osteophyte complex causes mild canal narrowing at C3-4. There is uncovertebral and facet degenerative change causing moderate left foramen narrowing at C4-5. On the right, there is mild foramen narrowing at C3-4.

Impression: No acute abnormality is present. There is no fracture or dislocation. There is mild to moderate degenerative spondylotic change as described above.

This would be indicative of broad systemic age related changes that would indeed present the worker with ongoing pain and difficulties after the presenting strain diagnoses that have been provided by the attending physicians following each indentified accident or injury experienced by the worker.

The status of the worker difficulties following the March 2005 becomes shrouded in the development of the non-organic impairment.

The accidents on record demonstrate specific events which have culminated in diagnoses of strains to the worker’s lower back. The clinical evidence supports that the worker has recovered from the strains superimposed on the degenerative changes.

The Independent medical assessment dated March 26, 2007 states in part;

“Recommendations

1. IMPAIRMENT

To further clarify his organic status, two recommendations are offered:

(i) Clarification from the Neurologist as to whether the “spinal stenosis” identified on the MRI (22.11.06) was central or lateral.

(ii) EMG lower extremities.

To address possible Inorganic factors that may be contributing to the overall presentation, an Independent Psychiatric Assessment is recommended.

2. DISABILITY/ 3. HANDICAP

Further documentation is required, including:

(i) WSIB documentation

(ii) Physical demands Analysis

(iii) Valid measure of his true residual functional capacity.

Instead there was substantial pain behaviours/inconsistencies, suggesting the presence of significant inorganic factors contributing to the overall presentation:

• Psychogenic factors
• Environmental contingencies
• Dissimulation.

3. Are your clinical findings consistent with the limitations reported by the employee?

The “clinical presentation” is certainly consistent with “limitations reported by the employee”. However I am not persuaded that his “clinical presentation” is a valid measure of either his current organic status, or his potential functional status.”

It is noted that the IME examiner asked for additional details specifically additional history contained in the board file to provide a better conclusion the evidence is available to conclude on the issues at hand.

The noted inconsistencies described by the IME examiner would support the findings that the worker has indeed recovered from the strains resulting from the various accidents on record. As such I am unable to find I favour of the worker with respect to a request for a PI in the lower back. The ongoing difficulties the worker is experiencing with his lower back would in my view be more a product of the degenerative changes evidenced in the clinical investigations.

The worker reported and testified to a range of difficulties that he began to experience at work with supervision and his co-workers. The worker’s reaction to the incidents are indeed mired in pre-existing and well documented psychological problems that are of long standing in nature.

The worker presents with a history of depression adjustment disorder and substance abuse as evidenced by Dr. Manchanda’s report of June 1990, which would appear in my view to suggest some foreshadowing of some of the difficulties that begin to present themselves in 2004.

Specifically, Dr Manchanda’s report notes;

“…His drinking has been on the increase and the problems at work appear to be a reality as opposed to his imagination or part of a delusional system.

Gary is loud, speaks fast , and swears all the time. There has been no significant change in his behaviour over the years and his irritability, hostility, and violent behaviour are all related to his heavy drinking.

…I think Gary’s main problem is one of personality and his heavy drinking. The only help he wanted from me was if I could do something to support him with his problems at work.

I do not think I have anything to offer (him) at this point in time… I do not think he has a psychotic illness and his difficulties at work are related to his personality difficulties.”

Some ten years later Dr. Sadek reviewed the worker and provided additional insight into the worker’ s presentation. The report states in part;

“…The patient seems to enjoy a good state of physical health, however he appeared dishevelled and unkept.

…(he) is a forty-five year old separated gentleman, with a long standing history of chronic depression secondary to longstanding problems with work, difficulties in interpersonal relationships and financial difficulties. He is most likely suffering from an adjustment disorder with depressed mood.”

The worker provided during the hearing process a number of documents. They are copies of correspondence between the worker and various individuals employed by the employer.

Some of the correspondence deals with health and safety issue indentified by the worker, such as materials that were being placed in the landfill site. Others suggest the worker’s dissatisfaction with the training and promotional opportunities that he believed that he should have received.

In one, addressed to the City Administrator (December 17, 2001), he questions the hiring of a particular supervisor, another sent to the sanitation supervisor (April 10, 1991), suggests that because his is not related to anyone in the employ his is passed over for advancement and training.

On May 29, 2000 questions the ability of a manager being able to control a meeting.

These are only a few of the instances put forth by the worker in support of his conviction that he was being mistreated by his employer. While there are documented incidents that would cause distress such as the fecal matter on the truck handle incident they do not conform to the definition as outlined in operational policy 15.04.12 which sates in part;

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. 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.

Other factors The following relevant points are evaluated in assessing the extent of psychotraumatic disability entitlement. Prior history In all cases where history of a prior psychiatric condition is shown to exist, the question of allowance on an aggravation basis is considered, having regard for the emotional effect of the occupational occurrence and a condition resulting from the work-related injury (see 11-01-15, Aggravation Basis).

The foreshadowing alluded to with respect to Dr. Manchanda’s report of June 1990 becomes apparent in the tone of the worker’s correspondence with the employer. The impetus of the difficulties that the worker experienced would not in my view stem from any wrong doing on the part of the employer, save for the documented incidents, it would solely rest in the worker perception of the employer’s activities.

It is clear and accepted that the employer has the sole responsibility and authority to conduct their business and maintain supervision and control of it employees and has the right to promote, discipline and train employees as it sees fit.

While I would applaud the worker’s dedication to detail and safety of the workplace and welfare of his co-workers, the worker’s dissatisfaction with the employer’s response to his concerns cannot be defined as a compensable accident or form the grounds of compensable incident in which to related the onset or aggravation of a pre-existing psychological impairment to.

The contemporaneous evidence shows that the worker presents with considerable difficulty with authority and the ability to get along with co-workers. The evidence favours this assertion in the absence of any significant complaints being made by the worker during the period of time that he was placed on commercial collection, during the night shift. Here the worker could go about his duties in relative isolation free from frequent and direct contact with others.

Following the worker’s transfer from the commercial shift to days the worker’s difficulties become apparent. The letter writing campaign begins and the worker’s assertion of nepotism in the employment environment begins to resurface in earnest.

Operational policy 15-03-02 concerning traumatic mental stress states in part;

Sudden and unexpected traumatic event In order to consider entitlement for traumatic mental stress, a decision-maker must identify that a sudden and unexpected traumatic event occurred. A traumatic event may be a result of a criminal act, harassment, or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others. In all cases, the event must arise out of and occur in the course of the employment, and be

• clearly and precisely identifiable
• objectively traumatic, and
• unexpected in the normal or daily course of the worker’s employment or work environment.

This means that the event

• can be established by the WSIB through information or knowledge of the event provided by co-workers, supervisory staff, or others, and
• is generally accepted as being traumatic.

Sudden and unexpected traumatic events include

• witnessing a fatality or a horrific accident
• witnessing or being the object of an armed robbery
• witnessing or being the object of a hostage-taking
• being the object of physical violence
• being the object of death threats
• being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
• being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse)
• being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).

The specific incidents directed at the worker must be addressed in light of the above policy. The worker representative contends that the fecal matter being smeared on the truck door handle, a dead rat being placed in the worker’s truck and damage being done to the worker vehicle are “ disturbing events”, which coupled with the employer’s lack of action suggest grounds for acceptance of the worker’s psychological condition.

The activities of those unknown could be classified as somewhat disturbing and the work of a person with some issue of their own but the actions were directed and carried out on objects and not directly to the worker. There is no evidence that the worker was placed in any physical harm nor is there any evidence to support that the worker had been placed or subjected to direct threat of harm.

While there may be a suggestion of some harassment of the worker (accusations of being a homosexual), the correspondence supplied by the worker from the Ontario Human Rights Commission dated August 16, 1990 would appear to have appropriately dealt with the matter as the evidence subsequent to this date is absent of any suggestion that this remained an ongoing issue.

The documented evidence displays the worker as someone who was unable to reconcile the actions of the employer within his own world view. He consistently voiced his dissatisfaction with personnel decision being made by his employer, commented on the ability/competency of particular managers/supervisors, and regularly disregarded the chain of command by taking his concerns directly to senior personnel.

The worker would have had access to and appeared to make use of avenues available to him for grievances and the like but the process and result appears to be unacceptable to him. The genesis of the documented difficulties therefore would rest not with the work environment but more of a result of the operation of the worker within it.

The evidence shows that the employer entered into the early and safe return to work process by attempting to identify work that would honour the restrictions placed upon the worker. The evidence does support that the modified work offered did adhere to the physical restrictions and would allow the worker to maintain suitable employment. What is imperative to understand that although some of the duties or placements suggested may not be the most desirable duties the test must result in a finding of whether or not the person is capable of the work notwithstanding their view if it.

As a result, the ARO is not satisfied that the worker could not continue with the modified worker offered by the employer, and the request for TT/LOE benefits for the claimed periods is declined.

CONCLUSION

Having carefully studied the available evidence, heard the testimony provided by the worker and considered the submissions made by the representative’s it is the judgement if the ARO that;

The clinical evidence does not support that the worker has experienced a compensable permanent impairment resulting from the lower back strains as documented in the proceeding claims.

In addition, the ARO is not satisfied that the worker has experienced a compensable psychotraumatic impairment or condition stemming from his employment.

The ARO finds that the modified duties made available to the worker during the claimed periods of TT/LOE falls within the worker’s physical capabilities. Any non-organic impediment to the worker being able to remain or take part in the modified work program is non occupational in nature and the worker is being properly compensated through other income replacement programs.

The worker’s objection is denied.

DATED February 2, 2010, at Toronto, Ontario.

N. J. Shruiff

Appeals Resolution Officer

Appeals Branch