WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20172040
OBJECTING PARTY: WORKER
REPRESENTED by: Union
RESPONDENT: Employer Not Participating
HEARING: Hearing in Writing
HEARD by: D. Gowanlock, Appeals Resolution Officer
DATED: October 3, 2017
ISSUE
The worker is objecting to the decision dated June 5, 2017 that denied entitlement to a loss of earnings benefit after October 6, 2014.
BACKGROUND
This now 35 year old Child Care Worker was hired by the Employer in June of 2009.
On January 18, 2012 the worker witnessed an assault of a client. Initial entitlement was accepted for Traumatic Mental Stress (TMS) for health care benefits only. The worker returned to work and laid-off again as of February 13, 2012 and returned to work in April of 2012. According to the documentation on the case record, the worker returned to full duties as of May 11, 2012.
There is no further activity on the case record until October 14, 2014 at which time the worker contacted the Board and reported that she had been off work since October 6, 2014 and had been off work intermittently since 2012, in the care of a doctor from a walk-in clinic and in receipt of medication. The employer objected to further entitlement on the basis that the worker was called in for a meeting on October 6, 2014 due to work performance issues. The worker did not attend the meeting claiming a stress attack.
On November 7, 2014 the Case Manager reviewed the details of the case and concluded that the criteria for entitlement to a recurrence were not met. The decision to deny the recurrence was confirmed in writing on November 20, 2014.
The worker representative objected to the denial of the recurrence and provided additional medical reporting and confirmation of lost time from work. In September of 2015 the Case Manager requested a Field Investigation as well as additional medical reporting. The worker was referred to the WSIB Psychological Trauma Program and based on the findings; the worker was granted entitlement to additional treatment as well as payment for lost time from work from February 13, 2012 until April 29, 2012 and from May 6, 2012 until May 19, 2012. Entitlement to a loss of earning benefit as of October 7, 2014 was denied as the medical and documentary evidence did not support that the worker’s absence from work was related to the January 2012 work incident. This decision was confirmed in writing on February 11, 2016.
The worker continued to participate in psychological treatment and as of June 5, 2017 the Case Manager wrote to the worker confirming that treatment would end as of July 15, 2017. The worker’s inability to work after October 6, 2014 was considered to be caused by reasons other than the January 2012 work incident and entitlement to a loss of earnings benefit after October 6, 2014 remained denied.
Worker’s Position
The worker objects to these decisions and is requesting entitlement to a loss of earnings benefit after October 6, 2014. The worker representative provided a submission dated August 29, 2017 in support of the worker’s position.
AUTHORITY
The following Operational Policy applies:
15-02-05 Recurrences
ANALYSIS
In my review I have had regard for the claim file information, relevant policy, legislation and the submissions put forth by the worker representative with respect to the issue. I have considered all the evidence and the following is a summary of my decision.
Issue: Entitlement to a loss of earnings benefit after October 6, 2014 as a result of a recurrence
I find that the criteria required allowing entitlement to a loss of earnings benefit as of October 7, 2014 has been met. I arrived at this decision based on the following:
Policy
Policy 15-02-05 states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that does not result from a significant new incident/exposure and is clinically compatible with the original injury/disease.
Significant deterioration
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings.
Indicators of a significant deterioration may include
- the need for active (non-maintenance) clinical treatment
- a change in functional abilities, or
- a change in the ability to perform a job or suitable occupation.
While a worker may take an occasional day off from work, this is generally not indicative of a significant deterioration.
Generally, a worker who experiences an actual loss of earnings due to a recurrence is entitled to LOE benefits.
Case Details and Findings
After the work incident in January of 2012 the Board attempted to contact the worker by telephone and letter several times to discuss treatment and the need for counselling. The worker never responded and the case was closed.
The clinical note dated May 6, 2014 documents that the worker had been off work since April 15 with situational anxiety and PTSD. The symptoms were now bad. The worker stopped taking Effexor after three months and did not realize that it was meant to be taken for six to nine months.
The Short Term Disability Claim Form dated May 6, 2014 completed by a physician with the LaSalle Walk-In Clinic provides an illness of mental health that may have been aggravated by work. The condition did not arise out of employment issues.
The clinical note dated May 21, 2014 documents that the worker had depression and was increasingly sad, emotional and had difficulties with sleeping, appetitive, seclusion and reduced memory and concentration. The worker’s dose of anti-depressant medication was increased. The worker had been off work since May 6, 2014 and did not feel ready to return to work.
The clinical note dated July 10, 2014 queries depression and stress and notes that the worker felt better.
The clinical note dated September 2, 2014 addressed a dislocated elbow. There is no reference to depression or PTSD.
The clinical note dated October 3, 2014 states that worker was not doing well. She was on Effexor and complained of depression since May of 2014 with increased crying spells.
The clinical note dated October 7, 2014 is difficult to read however appears to suggest that the worker’s anxiety flared around September 30, 2014 and was continuing from her stress at work. A prior history of PTSD from a work incident with depression and anxiety was noted.
The clinical note dated October 14, 2014 notes no change in the worker’s mood since being off work for one week. A prior history of PTSD triggered by an incident at work was noted and the worker felt that she was not ready to return to work. A diagnosis of anxiety and depression was noted. Medication was increased and EAP counselling recommended.
The Short Term Disability Claim Form dated October 14, 2014 completed by an unknown physician provides an illness of Mental Health as of October 7, 2014, possibly caused by or aggravated by work and arising out of employment issues.
On October 14, 2014 the worker contacted the Board and requested entitlement to benefits and services as of October 7, 2014 when she stopped working. She related her lost time from work to the work incident from 2012.
On October 20, 2014, as documented in memorandum #14, the employer indicated that the worker was asked to attend a meeting on October 6, 2014 with respect to a serious infraction. The employer noted that the worker missed a lot of time and that she was unreliable.
A clinical note dated October 21, 2014 documents a history of PTSD back to February of 2012. The worker reported nightmares and flashbacks. Diagnoses of depression, anxiety and PTSD were noted. Counselling was initiated through EAP.
On her Worker’s Continuity Report (REO6) dated October 22, 2014 the worker documented anxiety, depression, flashbacks and issues with mood, sleep, appetite, increased fear, isolation and lack of social interests. The worker noted changes to her work that included increased work load, high stress, consistent police involvement at work and daily increased communication with police.
On October 24, 2014 the employer wrote to the Board objecting to entitlement to a recurrence and loss of earnings benefits. The employer confirmed that the worker did not report any new traumatic events and had been experiencing serious work performance issues including allegations of misconduct and fraud and after investigation by HR, the worker was found to have committed a series of severe violations of Agency polices and Ministry standards including theft of time, missing work with no authorization, lying to a supervisor, falsification of documents, writing fraudulent reports and failure to report a criminal conviction. These infractions were considered to be severe and could be subjected to strict discipline up to termination. The worker was asked to attend a meeting on October 7, 2014, became agitated, and started crying and reported that she “couldn’t do this anymore”. A colleague brought in a doctor’s note placing the worker off work. The worker refused to contact the employer or to respond to the employer‘s phone calls.
According to the worker, as documented in memorandum #16 dated November 9, 2014 , on October 6, 2014 she was performing her regular duties and went to a home for an investigation and everything got worse with her PTSD. She indicated that she is afraid of police. Her job is difficult and her regular duties are too challenging. There are always triggers. Without warning her supervisor walked into the office and advised the worker of a meeting and her anxiety went through the roof. On October 7, 2014 she saw a doctor.
The Short Term Disability Claim Form dated November 18, 2014 completed by a physician at the Walk-In Clinic confirms an illness of Depression and Anxiety Disorder for which the worker was first seen on October 3, 2014. In the opinion of the examining physician the current disabling condition was not caused by work nor was it aggravated by work. The condition did not arise from an employment situation and was due to an underlying condition.
On November 20, 2014 the Case Manager denied the recurrence on the basis that the incidents prior to the worker’s lay-off were not traumatic in nature and that the worker was performing typical duties related to her job. The worker stopped working on October 7, 2014 only after being asked by her employer to attend a meeting.
According to the Claim Advice Form for STD benefits dated December 3 and December 10, 2014, the worker’s claim for benefits as of October 7, 2014 was denied due to insufficient medical documentation to support a disability claim. The worker was asked to attend a meeting for return to work purposes on December 10, 2014 which she declined to attend.
On July 15, 2015 the worker representative wrote to the Board requesting a reconsideration and included a report from a psychiatrist. The representative also noted that the HR manager who provided the information with respect to the worker job performance was no longer with CAS and that this manager had, in her experience, made inappropriate comments and offered incorrect information about various members who were experiencing disabilities or difficulties.
On August 20, 2015 the worker representative provided a summary of the worker’s absences in an attempt to show that the worker’s absenteeism and medical care was caused by the injury.
The September 25, 2015 Claims Investigation Report documents that the worker was unable to provide specific information in terms of her sick time, vacation time or personal days and that on most occasions she did not seek medical attention. She did not provide specific reasons to her supervisor as to why she applied for STD benefits on several occasions. She did not like to attend emergency calls that involved the police, which was part of her regular duties, which she continued from May of 2012 until her last shift on October 7, 2014. She refused to attend emergency calls on her own and had a senior staff member attend with her. In terms of her application for STD, she was approved from October 9, 2013 to November 3, 2013 and she was denied from April 22, 2014 to June 9, 2014 but she could not recall if she reported her condition as work related or not. Her claim for STD benefits in October of 2014 was denied.
As documented in the Claims Investigation Report, the employer was unable to confirm the reasons for the STD benefits from October 9, 2013 to November 3, 2013. The worker returned to full regular duties on November 4, 2013. The employer was not able to confirm the reason that the worker was off work from April 24, 2014 to June 9, 2014, however her STD benefit were denied. The worker returned to full regular duties on June 10, 2014. The worker did not report any new incidents relating to the January 18, 2012 work incident.
As documented in the Claims Investigation Report, the worker’s direct supervisor could not recall the date of the incident but did recall the details. She was not able to recall when the worker returned to modified work or that the worker complained about being asked to attend an emergency call on her own. On her last day of work she tried to arrange a meeting with the worker to discuss her performance however the worker left prior to having the meeting. The supervisor confirmed that the worker continued to perform her regular work attending emergency cases on a regular basis. The worker was required to contact the police prior to attending and did not complain about having any difficulties attending emergency cases or dealing with the police. The worker did not make any on-going complaints about having any issues related to the January 18, 2012 incident. The supervisor did mention that it was evident that the worker was not happy with her job and that the worker’s attendance had always been a concern.
Memorandum #23 dated October 1, 2015 confirms a conversation with the worker’s Manager who confirmed one incident in May of 2012 where the worker was apprehensive about a call with police involvement and anxious about possible repercussions and the Manager sent a senior staff member with the worker to the call.
In the February 11, 2016 decision letter the Case Manger noted that the clinical notes from the Walk-In Clinic for July 10, September 2 and October 3, 2014 document that the worker’s sleep was good and that her mood, anxiety and depression was under control. However, in reviewing these notes, on July 10, 2014 the physician queried depression and stress however noted that the worker felt better. The September 2, 2014 note did not reference depression or PTSD and the note dated October 3, 2014 documented that worker was not doing well. She was on Effexor and complained of depression since May of 2014 with increased crying spells. In reviewing these clinic notes, I am not persuaded that the worker’s PTSD and depression was under control.
In memorandum #45 dated February 19, 2016 the worker claimed that an incident that occurred on October 6, 2014 was a trigger for the recurrence. However, in reviewing the medical and documentary evidence on the case record, there appears to be no reference to an event on October 6, 2014. Short Term Disability Claim Forms dated October 14, 2014 and November 18, 2014 confirm an illness for Mental Health and Depression and Anxiety as of October as of October 7, 2014 and October 3, 2014 respectively.
Under memorandum #53 dated April 19, 2016 the Case Manager documented that although the assessors at the PTP and Dr. Joseph all confirmed that the worker was unable to return to work, according to the Case Manger, the time away from work was not attributable to witnessing violence on January 18, 2012. After treatment, consideration was to be given to return to work.
In reviewing pertinent medical reporting, I have taken the following into consideration:
- Dr. Joseph’s June 15, 2015 report confirmed a DSM-IV diagnosis of PTSD that the worker developed after a traumatic event at work. Since the event the worker had been having nightmares and flashbacks and reliving the trauma. There is a family history of alcohol abuse and psychiatric illness. The worker required WSIB services given that the trauma occurred at work.
- The PTP Discharge Summary dated January 27, 2016 provided DSM-IV diagnoses of PTSD, Chronic and Major Depressive Disorder, Single Episode, Partial Reemission. The workplace accident was considered to be a major contributor to the post-traumatic stress disorder and the major depressive disorder onset following the workplace accident was exacerbated by concurrent stressors. Pre-existing contributors were not identified. The worker was not able to return to work in any capacity and required twelve sessions of treatment after which readiness for return to work would be determined.
- Psychologist Dr. Jalbert initially assessed the worker for treatment on May 13, 2016. The July 16, 2016 progress report indicated that the worker remained quite symptomatic and was not ready to return to work.
- Dr. Jalbert’s October 2016 progress report notes little change from the previous report with respect to the worker’s symptoms. The psychologist opined that the worker’s behaviour was better explained as a result of an exacerbation of PTSD as opposed to “workplace performance”. Specifically, her response was an escape behaviour based on being triggered and experiencing extreme anxiety, avoidance of triggers of anxiety, difficulty taking in information and responding appropriately at the moment, hyperarousal and distorted perceptions of threat, which are all symptoms of PTSD. The psychologist provided an addendum that outlined the worker’s explanation of the events that took place on October 7, 2014 and the worker’s attempts to obtain treatment on her own. The psychologist opined that the worker’s prognosis for return to work at her prior place of employment was poor and prognosis for return to work in general was fair. An additional eight to ten sessions were requested.
- Dr. Jalbert’s December 16, 2016 progress report documents that psychologically the worker was not ready to return to work and her prognosis for a return to work in general was fair. After the four remaining sessions, the psychologist felt that additional treatment for prolonged exposure for the worker’s remaining trauma symptoms would be a benefit for the worker and an additional twelve to sixteen sessions were requested.
- Dr. Jalbert’s January 27, 2017 progress report noted that the worker was considered to be partially in remission. The worker felt that she was no longer able to work as a child protection work and the psychologist agreed providing permanent psychological restrictions of no work as a child protection work and no working in situations where there is a high risk of interpersonal conflict. The psychologist suggested that the worker meet with a Work Transition Specialist to be assessed and explore training and work opportunities.
- In her June 23, 2017 progress report Dr. Jalbert opined that if the worker would not be provided with work transition services through WSIB, she would remain symptomatic until she was able to obtain access to this support. The denial of support from WSIB caused an exacerbation in the worker’s mood symptoms. It was the psychologist’s strong belief that the reason for the worker’s inability to work after October 7, 2014 was due to hyperarousal from the PTSD rather than an employee/employer conflict. The worker requires help with retraining and she was ready and willing. The psychologist requested monthly sessions until the worker received a formal appeals decision.
In determining whether the worker is entitled to a loss of earnings benefit as of October 7, 2014 I am guided by policy 15-02-05 which states that generally, a worker who experiences an actual loss of earnings due to a recurrence is entitled to LOE benefits.
Entitlement to a recurrence for PTSD and Major Depressive Disorder was accepted by the Case Manager. Entitlement to a loss of earnings benefit was denied on the basis that the reason for the worker’s inability to attend the meeting and her cessation of work on October 7, 2014 was related to performance issues.
Having reviewed and considered the medical reporting, summarized above, as well as the worker’s explanation for her inability to attend the meeting as documented in the addendum included with Dr. Jalbert’s October 2016 progress report and placing significant weight on the medical opinions expressed by Dr. Joseph, the assessors at the PTP and Dr. Jalbert, I am persuaded that, on the balance of probabilities, the worker’s performance issues may well have been due to her PTSD symptoms, clearly not managed.
Although the employer initially indicated that they objected to the allowance of a recurrence and in particular, the payment of a loss of earnings benefit, I note that the employer has not participated in the appeals process and has not brought forth an opposing argument in response to the medical documentation provided by medical experts who opine that the workplace accident was considered to be a major contributor to the development of the worker’s PTSD and the Major Depressive Disorder onset following the workplace accident. In my view, it is reasonable to conclude that the lack of treatment and the exacerbation of the worker’s PTSD and development of a Major Depressive Disorder more than likely impacted her work performance.
Therefore, in the absence of any opposing argument, I find that the worker experienced an actual loss of earnings as a result of the recurrence in October of 2014 and the worker is entitled to a loss of earnings benefit as of October 7, 2014 to date and continuing as the operating area determines the worker’s readiness for return to work taking into consideration the permanent restrictions provided by Dr. Jalbert of no work as a child protection worker and no working in situations where there is a high risk of interpersonal conflict.
CONCLUSION
I conclude:
Entitlement to a loss of earnings benefit as of October 7, 2014, as a result of the recurrence is allowed to date and continuing as the operating area determines the worker’s readiness for return to work taking into consideration the permanent restrictions provided by Dr. Jalbert.
The objection is allowed.
DATED October 3, 2017
D. Gowanlock Appeals Resolution Officer Appeals Services Division