WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190077
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
HEARING: Oral Hearing on April 11, 2019
HEARD by: K. Gordon, Appeals Resolution Officer
DATED: April 16, 2019
ISSUE
The worker, through her representative is objecting to the Case Manager’s (CM) decision dated October 20, 2017 that denied entitlement to psychotraumatic disability.
BACKGROUND
The history and nature of this claim is well documented in the Workplace Safety and Insurance Appeal Tribunal (WSIAT) decision of February 1, 2016. As such, I will only provide a brief history, in order to place the issue under this appeal into context.
On March 23, 1993, this healthcare aide sustained a back injury while assisting to lift a patient from a chair onto the toilet. The worker bore the brunt of most of the patient’s weight in the transfer. The diagnosis accepted was mechanical low back pain. A permanent impairment was accepted for the worker’s back injury and the worker was granted a 15 percent Non-Economic Loss (NEL) benefit. Due to the worker’s back injury, the worker was unable to return to her pre-injury job, and was provided with vocational rehabilitation services. This included the worker attending a four (4) year university program. The worker graduated with a Bachelor of Science degree in Sociology.
After graduating, the worker obtained employment as an on call response worker in Child and Family Services. The worker later became a supervisor of a group home. In 2005, the worker quit her employment due to increased back pain. The worker found the back pain gradually worsened since the March 23, 1993 back injury.
In September 2011, the worker submitted medical information to file and requested entitlement to Chronic Pain Disability (CPD). The CM reviewed the evidence, and in the decision dated February 29, 2012, the CM concluded the worker did not have entitlement to CPD. The worker objected to the denial of CPD, and the claim was referred to Appeals Services. In the decision dated July 24, 2013, the Appeals Resolution Officer (ARO) upheld the CM’s decision to deny entitlement to CPD. The claim was referred to WSIAT and in the decision dated February 1, 2016, WSIAT also denied entitlement to CPD.
On May 5, 2017, the worker representative submitted a request for psychotraumatic disability entitlement. The CM reviewed the psychological reports on file, and in the decision dated October 20, 2017, the CM determined the criteria to allow psychotraumatic disability was not met. As such, the CM denied entitlement to psychotraumatic disability.
The worker representative submitted the Appeal Readiness Form (ARF) dated December 18, 2018 objecting to the CM’s decision that denied entitlement to psychotraumatic disability.
The denial of psychotraumatic disability forms the basis of this appeal.
AUTHORITY
Operational Policy:
15-04-02 Psychotraumatic Disability
ANALYSIS
Having considered all of the evidence, I find the worker does have entitlement to psychotraumatic disability. In arriving at this decision, I have considered the information in the claim file, the worker’s testimony as well as the appropriate Operational Policy.
During the hearing, the worker testified she started working with the employer in July 1991 as a health care aide. The worker’s working hours were from 7:30am to 3:30pm. The worker’s job duties involved waking the residence up, taking them to the washroom, getting them dressed and taking them into the dining room, the meeting room, or where they needed to be.
In March 1993, the worker was transferring a resident to the toilet. The worker did this with the assistance of another health care aide. As the resident was being transferred, the resident’s legs gave out. As this happened, the worker was holding on to the resident and held most of the resident’s weight. The worker then fell between the wall and the toilet. The worker stated she felt a big snap in her back. The worker injured the lumbar area of her spine and her right knee. The worker lost time from work but eventually returned to modified duties. The worker left the job in September 1993, as the worker found it too difficult to perform her duties due to the workplace back and knee injuries.
The worker testified that approximately a year before leaving her job in September 1993, the worker started school. The worker was working on her degree part-time while working with the employer. When the worker stopped working with the employer in September 1993, the WSIB provided the worker with vocational rehabilitation services. These services provided the worker with a four (4) year university program. The worker completed the 4 year university program, and graduated with a Bachelor of Science Degree in Sociology in May 1996.
On March 16, 1994 the worker was granted a 15 percent NEL benefit for the low back mechanical back pain injury.
The worker testified she relocated to Saskatchewan in 1996. In September 1996, the worker started working for a women’s shelter. The job involved supervising abused women, cooking, cleaning, and counselling. The worker also took people out shopping. The worker performed this job for approximately one month.
In October 1996, the worker started working for a child and family services agency. The worker first started as an emergency worker which involved going out on calls for neglected and abused children. The worker would then write up reports and submit the reports to her supervisor. The worker testified she continued working for this employer for almost ten years.
The worker testified that although she persevered and worked through the back pain, the worker wasn’t at her best. The worker testified she left work in 2005 as the worker stated her health was progressively getting worse. The worker testified her back condition worsened and her depression and anxiety were building up. This resulted in the worker not being able to work in 2005.
The worker testified she started to have depression and anxiety soon after the accident accepted in this claim. The worker stated she did not feel like a whole person, her thinking was not straight, and she worried constantly. The worker testified she had no problems with depression or anxiety before the accident, and that prior to the accident the worker stated she was energetic and happy.
The worker testified she relates her depression and anxiety to her back injury. The worker stated that had it not been for the back injury, the worker would be the same person as she was before the accident. The worker stated she would be involved with family more, and would not have to bail out of going somewhere fun because of the injury. This worker stated this has all contributed to her depression.
The worker testified that although she was suffering from depression and anxiety, there were no resources to help her get better either physically or mentally. The worker stated she did have a family doctor, Dr. Hiron whom she started seeing when she was a teenager. Dr. Hiron was her family doctor until she went to Saskatchewan in 1996. In Saskatchewan, when the worker needed medical attention she would go to a walk-in clinic.
The worker returned to Ontario and in 2007, the worker found a new family doctor, Dr. Schwartz. When she first started seeing this doctor she told him about her back injury and her depression. Dr. Schwartz prescribed medication for her back pain and her depression. Dr. Schwartz also recommended the worker see a psychologist for an assessment. The worker stated she first underwent a psychological assessment sometime between 2007 and 2010.
The worker testified she still has psychological issues now and finds treatment does not help. The worker stated she lashes out for no reason and feels she is on a downward spiral. The worker also stated she takes medication for her depression and anxiety.
The worker testified she was approved for CPP disability in 2005, and she also receives old age security.
As stated above, the worker relates her depression and anxiety to the 1993 back injury accepted in this claim. As such, I refer to Policy 15-04-02, which states if it is evident that a diagnosis of a psycho-traumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psycho-traumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure.
In this case, Dr. Hiron submitted a report dated January 31, 1997. In this report, Dr. Hiron states the worker was prescribed a medication called Luvox for the worker’s chronic back pain and sleep pattern. The worker started the medication on February 27, 1996. Dr. Hiron states the medication has also improved the worker’s mood which previously had been depressed, related to an adjustment disorder that Dr. Hiron found secondary to the worker’s chronic back pain.
Dr. Hiron’s January 31, 1997 report is approximately four (4) years after the March 23, 1993 accident date accepted in this claim. This report confirms the worker was seen for depression, and the doctor related the depression to the workplace accident. As such, I find Dr. Hiron’s January 31, 1997 report confirms the worker’s psychotraumatic disability did manifest within five (5) years of the injury. For this reason, I find the criteria regarding the five (5) year manifestation in Policy 15-04-02 has been met.
Policy 15-04-02 also states that 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/criteria exist or develop:
Criteria one:
Organic brain syndrome secondary to
- traumatic head injury
- toxic chemicals including gases
- hypoxic conditions, or
- conditions related to decompression sickness.
In this case, the worker did not suffer an organic brain injury. As such, criteria one has not been met.
Criteria two:
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.
Having considered the information on file, I am not persuaded to accept the evidence supports the worker had an emotional reaction to the accident or injury, that the back injury resulted in a severe physical disability/impairment, or that the worker had a reaction to the treatment process.
First, I am not persuaded to accept the evidence on file supports the worker had an emotional reaction to the accident or injury. In stating this, I note the worker continued to work with the employer for over a year after the accident. The worker did not stop working with the employer until September 1993, when the worker’s back injury prevented the worker from performing her pre-injury work duties.
I also refer to the medical reports on file which support that although the worker reported ongoing chronic back pain, and a disturbance in the worker’s sleep because of the back pain, the medical reports do not support the worker complained of an emotional reaction to the accident or injury itself.
I also find it significant to note the worker was able to successfully complete a four (4) year Bachelor of Science Degree in 1996. The worker testified she started school prior to the injury, and in September 1993, when the worker could no longer continue working, the worker attended school full time. As stated in the February 1, 2016 WSIAT decision, the worker advised the WSIAT panel she received mostly A and B grades. The worker also advised on several occasions she was on the Dean’s list at university for her high academic achievements.
For the reasons stated above, I do not find the evidence supports the worker had an emotional reaction to the accident or the injury.
I also do not find the worker’s back injury resulted in a severe physical disability/impairment. In making this determination, I refer to the worker’s March 16, 1994 NEL assessment. As a result of this assessment, the worker was granted a 15 percent NEL benefit for the low back mechanical pain injury. While I accept the medical information supports the worker has limitations as a result of the permanent back injury, and that these limitations prevented the worker from performing her pre-injury job duties, the back injury limitations did not prevent the worker from attending a four year university program and graduating with a Bachelor of Science Degree. The injury also did not prevent the worker from securing employment after the accident and maintaining that employment for almost ten years from 1996 to 2005. As such, I do not find the evidence supports the back injury accepted in this claim resulted in a severe physical disability/impairment.
The worker did not undergo surgery and received only conservative treatment. I also note there is no evidence on file to support the worker had a reaction to the treatment process.
For the reasons stated above, I find the conditions under criteria two have not been met.
Criteria three:
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.
I find it significant here to refer to the February 1, 2016 WSIAT decision which provides the following finding of fact:
“We confirm, however, that the worker struck us as a creditable historian. We accept that the worker’s depression was of long-standing and that it likely arose before 1997 when Dr. Hiron noted that the medication he had prescribed was assisting the worker’s depression. We further accept that the worker’s depression likely arose, at least in part, out of the compensable accident.”
I accept the WSIAT finding noted above does support that in 1997, the worker’s depression was related to the extended disablement. I find the extended disablement, the majority of which is directly and clearly related to the work-related injury. As such, I accept criteria three has been met.
As stated above, I accept the worker does have psychological entitlement in this claim. While I accept the criteria to allow psychotraumatic disability has been met, I do not find the evidence on file supports the worker continued to have psychological symptoms related to the back injury after 1997. In stating this, I note Dr. Hiron’s January 31, 1997 report states the worker’s depression improved with the medication prescribed for the worker’s back pain and sleep pattern. I also find it significant that there are no medical reports between 1997 and 2011 to support the worker complained of ongoing depressive symptoms or sought medical attention for depression during this time.
While I note the worker representative refers to a Short Term Disability (STD) Form dated November 25, 1998 to support the worker did have an ongoing psychotraumatic disability, I do not find this form supports a psychological condition as a result of the worker’s back injury. In reviewing the November 25, 1998 STD form, I note the worker suffered a heart attack in October 1998, and the worker was diagnosed with coronary artery disease. The STD form states the worker has work-related stress. I have also reviewed memorandum 83 dated November 15, 1999. As per this memorandum, the worker states she has been verbally threatened by clients. The worker relates the stressful dealings with clients to have contributed to the worker’s heart condition. As such, while I recognize the STD form states the worker does have work-related stress, I do not find this form supports a psychological condition as a result of the back injury accepted in this claim.
In my review of the medical reports on file, I note the worker was seen by Dr. Schwartz on September 13, 2011. In this report, Dr. Schwarz states the worker is depressed and unhappy with life. Although a psychological assessment was recommended, the worker did not feel she needed to see a psychiatrist. The doctor makes note that the worker’s mood has improved somewhat with anti-depressant and pain medication.
The worker then underwent a psychological assessment on October 16, 2016.
As stated above, my review of the evidence supports the worker’s compensable depression resolved in 1997. The evidence on file supports the worker did not complain or seek medication attention for a psychological condition related to the compensable back injury from 1997 to 2011.
To determine if the worker’s psychological condition in 2011 and 2016 are related to the depression I have granted in 1997, I ask the Operating Area to provide a decision on whether the worker suffered a recurrence of the 1997 psychological condition in 2011 and 2016.
In summary, I find the worker is entitled to psychotraumatic disability in this claim. However, I find the worker’s psychotraumatic disability resolved in 1997. I ask the Operating Area to provide a decision on whether the worker suffered a recurrence of the 1997 psychological condition in 2011 and 2016.
CONCLUSION
I find the worker does have entitlement to psychotraumatic disability.
I also find the psychotraumatic disability resolved in 1997.
I ask the Operating Area to provide a decision on whether the worker has entitlement to a recurrence in 2011 and 2016 of the 1997 psychotraumatic disability accepted in this appeal.
The worker’s objection is allowed.
DATED: April 16, 2019
Kelly Gordon
Appeals Resolution Officer
Appeals Services Division