WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110022
OBJECTION BY: Employer
PARTICIPANTS: Employer, Employer Representative, Worker, Worker Representative
HEARING: N/A
ISSUES
The employer’s representative is objecting to the following decisions:
The case manager’s (CM) decision of December 21, 2009, which granted entitlement to 25% cost relief under the Second Injury and Enhancement Fund (SIEF).
The CM’s decision of December 23, 2009, which approved the payment of psychological treatment in order to assist the worker in her return-to-work (RTW) efforts.
The CM’s decision of April 30, 2010, which granted entitlement to a non-economic loss (NEL) award assessment as a result of a left shoulder permanent impairment (PI).
The CM’s decision of June 16, 2010, which granted entitlement to a psychological condition as a result of the March 23, 2009 workplace accident.
The employer’s representative is requesting the following:
Revocation of the NEL award for a left shoulder PI.
Revocation of psychological entitlement, including treatment.
An increase in the SIEF quantum to the 90% level.
HOW THE ISSUES AROSE
On March 23, 2009 the worker leaned her posterior against a washroom door in order to open it. As she was performing this action, someone else opened the door from inside. The worker fell back against the door and onto the floor, injuring her left shoulder. She was 48 years of age and had been working for the employer as an assembly line worker for over four years at the time of the accident.
Initial entitlement was granted for a full thickness tear of the left rotator cuff supraspinatus with retraction to the glenoid margin. This diagnosis was confirmed by an ultrasound examination on March 27, 2009.
The worker did not work from March 24, 2009 to April 2, 2009 and received full loss of earnings (LOE) benefits for the lost time. The worker returned to suitable work at no wage loss on April 2, 2009 and LOE benefits ceased on that date.
On April 27, 2009 a Workplace Safety and Insurance Board (WSIB) nurse consultant (NC) referred the worker to the WSIB Hand and Upper Limb Clinic of St. Joseph’s Health Center, where she was examined by Dr. G.S. Athwal, Orthopaedic Specialist, on May 25, 2009. After assessing the worker, Dr. Athwal diagnosed her with a traumatic full thickness tear of the left rotator cuff supraspinatus. In addition, Dr. Athwal indicated that the worker tested positive for post-traumatic stress disorder (PTSD) and major depression.
On June 13, 2009, Dr. K.T. Caldwell, Psychologist, submitted a request for the payment of twelve cognitive behavioural therapy (CBT) sessions in order to assist the worker with her mental health needs that were associated with her workplace injury of March 23, 2009. In his report, Dr. Caldwell confirmed that the worker suffered from and was treated for pre-existing psychological conditions.
After reviewing these reports, the NC asked a WSIB psychological consultant for an opinion on whether the worker’s current psychological difficulties were related to her workplace accident of March 23, 2009 and/or if the twelve sessions of CBT should be paid for under the claim. After reviewing the claim, the psychological consultant commented that the evidence did not provide a basis for granting psychological entitlement as there was no formal DSM IV diagnosis provided, treatment had been conservative and the worker did not have a physical PI as a result of her accident. However, the psychological consultant recommended that payment for the CBT sessions be approved in order to facilitate the worker’s RTW process.
On August 18, 2009 the NC accepted the psychological consultant’s opinion and approved the payment of twelve session of CBT in order to assist the worker with her RTW efforts. On December 23, 2009 the CM formally communicated this decision to the workplace parties (WPP) in writing.
On September 21, 2009 the employer requested cost relief under the SIEF as the worker had pre-existing psychological problems. After reviewing the information in the case file, the CM granted 25% cost relief to the employer on December 21, 2009.
Dr. Athwal discharged the worker on September 14, 2009. On October 5, 2009 the CM determined that the worker had sustained a left shoulder PI after reviewing Dr. Athwal’s discharge report. The CM provided a formal written decision to the WPP’s on April 30, 2010.
In the decision of April 30, 2010 the CM also formally denied psychological entitlement as the evidence on file supported that the worker’s psychological condition was pre-existing and symptomatic at the time of her accident. As a result, the CM also denied the payment for any further mental health treatment and all lost time since April 7, 2010 that was related to the worker’s psychological condition.
After receiving further medical evidence, the CM reconsidered her decision to deny psychological entitlement on June 16, 2010. On that date, the CM granted entitlement to pain and adjustment disorders as a result of the March 23, 2009 workplace accident.
After receiving the CM’s decision of June 16, 2010, the employer’s representative requested a reconsideration of the SIEF decision of December 21, 2009 on the basis of psychological entitlement having been granted. On July 30, 2010 the CM upheld the decision of December 21, 2009 and confirmed the SIEF quantum at the 25% level.
The employer’s representative objected to the CM’s decisions. On April 14, 2011 the employer’s representative completed and submitted two Objection Forms to the case file. The CM reviewed and considered the Objection Forms on May 10, 2011, June 15, 2011 and July 20, 2011, confirmed the previous decisions and submitted the claim file to the Appeals Branch for further review.
AUTHORITY
Sections 46 and 47 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy Manual Document:
11-01-05: Determining Maximum Medical Recovery (MMR)
11-01-15: Aggravation Basis
14-05-03: SIEF
15-04-02: Psychotraumatic Disability
17-03-04: Health Care for Non-work-related Conditions
18-05-03: Determining the Degree of Permanent Impairment
18-05-11: Assessing Permanent Impairment Due to Mental and Behavioural Disorders
RESOLUTION METHOD AND PROCESS
The employer representative has requested the 60-day expedited review. This request directs the appeals resolution officer to render a decision within 60 days, using the information in the case file. The worker has chosen to participate in the employer’s appeal.
ASSESSMENT OF THE EVIDENCE
In arriving at my decision, I reviewed and considered the information in the case file and the applicable laws and policies.
Left Shoulder PI
The worker sought immediate emergency medical attention at Chatham-Kent Health Alliance on the day of accident. After examining the worker and conducting an X-ray investigation of her left shoulder, the emergency room physician suspected a deltoid insertion injury. In order to clarify and confirm the diagnosis, the physical referred the worker for an ultrasound of the shoulder.
On March 27, 2009 the ultrasound results showed the following:
An increase in fluid in the biceps tendon sheath compatible with moderate tenosynovitis.
Marked degeneration in the supraspinatus tendon.
Extensive intrasubstance degeneration with a full thickness tear.
Degenerative change noted on the humeral head.
In summary, the ultrasound results showed that the worker was suffering from a full thickness tear of the supraspinatus with retraction and degenerative change in the tendon and biceps tendon tenosynovitis.
The worker attended physiotherapy treatment for her left shoulder injury from April 3, 2009 to October 12, 2009. The worker was involved in a non-work-related motor vehicle accident on July 2, 2009, which caused a temporary deterioration in her left shoulder condition as per the physiotherapist’s report of August 5, 2009.
On September 14, 2009 Dr. Athwal discharge the worker from the WSIB Hand and Upper Limb Clinic. The worker complained of minimal pain with stiffness, fatigability and weakness in the left shoulder. She had 150 degrees of active forward flexion and 45 degrees of external rotation. The worker decided not to proceed with operative management of her left shoulder condition. Dr. Athwal concluded that, due to the size of the tear, the worker would not be able to return to her regular job and provided the following permanent medical restrictions for the left shoulder:
No below-shoulder lifting greater than 2 lbs.
Avoid any at or above shoulder height activity
Avoid repetitive forward reaching or reaching to the side
On August 11, 2010 a WSIB NEL adjudicator reviewed the medical information in the case file and granted the worker a 4% NEL award based on the reduced range of motion findings of the left shoulder.
There is no evidence in the case file to support that the worker suffered from a pre-accident impairment of the left shoulder. The evidence does show that she had been working for the employer for over four years without difficulty or complaint in relation to the left shoulder. However, subsequent to the workplace accident of March 23, 2009, her left shoulder did not return to its pre-accident level of functioning. On September 14, 2009 Dr. Athwal concluded that the worker had sustained a PI to the left shoulder and provided permanent medical restrictions in order to protect the worker’s left shoulder from further deterioration.
The facts and circumstances noted above lead me to conclude that the worker suffered a PI to the left shoulder as a direct result of her March 23, 2009 workplace accident. Therefore, a revocation of the 4% NEL award for the left shoulder PI is not in order.
Psychotraumatic Disability Entitlement
The worker suffered from a pre-accident psychological impairment in the form of a 20% NEL award under a previous claim. Under these circumstances, the issue to be determined is whether the workplace accident of March 23, 2009 aggravated the pre-accident psychological impairment. With respect to this issue, operational policy 11-01-15 states in part:
In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis.
Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.
Decision-makers should first determine entitlement in the claim. Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state.
Entitlement is not limited in cases where there is no pre-accident impairment, or the severity of the accident/exposure on its own would have resulted in additional impairment. This is the case where the impairment is temporary or permanent despite the presence of the pre-accident impairment.
Definitions
An aggravation is the effect that a work-related injury/illness has on the pre-accident impairment requiring health care and/or leading to a loss of earning capacity.
A loss of earning capacity is the difference between the worker's net average earnings before the work-related injury/illness, and the net average earnings the WSIB determines the worker is capable of earning after the work-related injury.
A minor accident is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury or illness.
A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. (Although the period of time cannot be defined, a decision-maker may use a one to two year timeframe as a guide.)
The worker underwent her psychological NEL assessment on September 29, 2008. The worker reported feeling depressed with an inability to enjoy herself. She indicated that she had daily panic attacks and loss of energy and motivation. She had difficulty falling asleep and, when she did, her sleep was restless and she awakened early. She had no taste for food with minimal appetite. The worker was diagnosed with mild to moderate depression and PTSD. Her global assessment of functioning (GAF) score was rated at the 60 to 64 level, which fell within the mild to moderate level of psychological symptoms. Based on the results of the assessment, the worker was granted a 20% NEL award for her psychological PI. This would place the worker at the Class 3, moderate impairment level on the mental and behavioural disorders scale under operational policy 18-05-11.
On May 25, 2009 Dr. Athwal identified mental health difficulties as barriers to the worker’s recovery process and recommended psychological intervention to assist the worker.
In his report of June 10, 2009, Dr. Caldwell confirmed that the worker had received psychological counselling until June 27, 2008 due to her pre-accident psychological impairment. The worker had made significant improvement by June 27, 2008 but negative affect symptoms were still present. In August 2008 the worker encountered further personal medical difficulties and her mental health treatment was discontinued.
The worker returned to psychological counselling with Dr. Caldwell on May 15, 2009. Based on the worker’s statements and assessment results, Dr. Caldwell reported that the sudden nature of the impact of the workplace injury of March 23, 2009 likely triggered her previous PTSD symptomatology causing a significant setback in her psychological condition. The combination of the worker’s dysphoric symptomatology and the pain and physical limitations associated with her workplace injury were impairing her ability to cope with the stressors in the important areas of her life. Dr. Caldwell recommended further treatment as without counselling her prognosis was poor.
In his progress report of April 22, 2010, Dr. Caldwell stated that the worker’s clinical presentation had waxed and waned throughout her treatment period. The fluctuation in the worker’s mental stated appeared to be related to her MVA of July 2, 2009 and the physical, financial and social consequences of March 23, 2009 workplace injury. The worker’s GAF score was rated at the 51 level.
Dr. Caldwell submitted a report on October 14, 2010. In that report he indicated that the worker was feeling better and hopeful following her return to full-time work in September 2010. Her GAF score was now at the 80 level, well within the normal range and significantly higher than the NEL award assessment level of September 29, 2008.
With respect to psychotraumatic disability entitlement, I note that operational policy 15-04-02 states in part:
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.
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, socio-economic factors, the majority of which can be directly and clearly related to the work-related injury.
The evidence in the case file supports that the worker’s pre-accident psychological impairment was temporarily aggravated as a consequence of her March 23, 2009 workplace left shoulder injury. The acute phase of the aggravation ended on October 14, 2010 as Dr. Caldwell’s findings support that the worker was functioning at a higher psychological level on that date than she was at the time of her NEL award assessment.
On November 15, 2010 the NC allowed the worker to have the five remaining sessions that had been previously approved with Dr. Caldwell. This decision was reasonable and helped support the worker in her RTW efforts as well as to wean her off of the therapeutic relationship with Dr. Caldwell.
The evidence contained within the case record leads me to conclude that psychotraumatic entitlement was correctly granted under the claim. I find that the psychotraumatic entitlement was granted on an aggravation basis for the acute phase only, from the day of accident to October 14, 2010, when the worker’s psychological condition returned to its pre-accident state. In addition, the mental health treatment that has been paid for under the claim has been reasonable and appropriate. Therefore, it remains in order.
SIEF Quantum
With respect to this issue, operational policy 14-05-03 states in part:
If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF.
It also states:
Definition – “Severity of Accident”
Minor: expected to cause non-disabling or minor-disabling injury
Moderate: expected to cause disabling injury
Major: expected to cause serious disability, probable permanent impairment
It goes on to state:
Medical significance of pre-existing condition*
Severity of accident**
Percentage of cost transfer***
Minor
Minor
50%
Moderate
25%
Major
0%
Moderate
Minor
75%
Moderate
50%
Major
25%
Major
Minor
90%-100%
Moderate
75%
Major
50%
The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist.
The evidence in the case file does not support that the worker suffered from a pre-existing disability that caused or contributed to her compensable accident.
On March 23, 2009 the worker leaned back against a door which gave way when someone opened it from the inside, causing her to stumble back and strike the door before falling to the ground. I find that the mechanics of the accident support that it would be one expected to cause a disabling injury. Therefore, I classify it as being a moderate severity-type accident.
The moderate nature of the accident would not be expected to cause any psychological consequences except in the case of someone who was already psychologically fragile at the time of the accident. The evidence in the case file supports that the worker suffered from a compensable pre-existing psychological impairment, which the WSIB had rated as being moderate in severity under its mental and behavioural disorders scale.
In addition, operational policy 14-05-03 states in part:
Since the pre-accident impairment significantly contributes to the work-related injury/illness, Schedule 1 claims allowed on an aggravation basis receive immediate SIEF cost relief.
Organically, the objective medical investigations conducted showed the worker to be suffering from marked and extensive pre-existing intrasubstance degeneration in the supraspinatus tendon. In the absence of such a pre-existing condition it is unlikely that the moderate accident of March 23, 2009 would have led to a left shoulder PI.
I find that the combination of the worker’s pre-existing psychological condition and the extensive underlying pre-existing degenerative changes in her left supraspinatus tendon conspired to make her significantly more liable to develop a disability of greater severity than the average person. Therefore, I classify her pre-existing conditions as being major in their severity.
Major-severity pre-existing conditions combined with a moderate-severity accident warrants cost relief at the 75% SIEF level.
CONCLUSION
The employer’s objections are allowed in part as follows:
SIEF cost relief is to be increased to the 75% level.
A left shoulder PI is confirmed. Therefore, revocation of the left shoulder NEL award is denied.
Psychotraumatic disability entitlement on an aggravation basis is confirmed. The worker returned to her pre-accident level of psychological functioning on October 14, 2010. Therefore, revocation of psychotraumatic disability entitlement is denied.
The psychological treatment paid for under the claim is confirmed. Therefore, revocation of these health care benefits is denied.
DATED November 8, 2011
C. da Cunha
Acting Appeals Resolution Officer
Appeals Branch