APPEALS RESOLUTION OFFICER DECISION
Decision number:
20210026
OBJECTING PARTY:
Worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
(did not participate)
HEARING:
VIDEO CONFERENCE – august 11, 2021
HEARD by:
F. Amorim, appeals resolution officer
August 27, 2021
ISSUES
The worker objects to:
The case manager decision dated June 23, 2009 which determined that, effective May 24, 2009, the worker was entitled to partial loss of earnings benefits based on concurrent earnings only. The case manager determined the worker was partially impaired and capable of participating in the return-to-work plan dated April 1, 2009. The case manager also determined the earnings basis noting she was concurrently employed with another employer. It was determined that her weekly gross earnings were $959.19 per week.
The non-economic loss (NEL) clinical specialist decision dated March 1, 2012 which determined the worker was entitled to a 19% NEL benefit for the left shoulder and left hip impairment.
The case manager decision dated June 5, 2013 which determined the worker was not entitled to benefits for psychotraumatic disability and chronic pain disability.
BACKGROUND
On November 27, 2007 this now mid-60s-year-old personal support worker injured her left shoulder and left hip when she slipped and fell while leaving work. She sought medical attention at a local hospital and was followed up by her family doctor. Entitlement was accepted for a left shoulder, left hip left knee and lower back strain. Entitlement was also granted for loss of earnings (LOE) benefits effective November 28, 2007.
She returned to modified work on December 11, 2007. She was unable to perform her concurrent employment and partial LOE benefits were authorized. She participated in multiple treatment therapies including physiotherapy, chiropractic therapy, and acupuncture. In June 2008, she was assessed at the regional evaluation centre by Dr. Weinberg who recommended ongoing treatment and temporary restrictions.
The worker reinjured her left shoulder while assisting a resident in March 2009. She claimed additional LOE benefits from March 12 to March 23, 2009. The operating area allowed the lost time and she returned to modified work. In April 2009, she reinjured her left hip while maneuvering a wheelchair and stopped working.
In a decision letter dated June 23, 2009 the case manager determined the worker was not entitled to full LOE benefits effective April 2009. The case manager determined the worker was partially impaired and capable of participating in the return-to-work plan that was set up on April 1, 2009. The case manager determined the earnings basis noting she was concurrently employed with another employer. It was determined that her weekly gross earnings were $959.19 per week.
In January 2010, the worker was referred for a psychological assessment. The report provided a diagnosis of major depressive disorder, and queried pain disorder associated with both psychological factors and a general medical condition. In February 2010, she was assessed by an orthopedic surgeon regarding her left hip impairment. There was no indication that surgery was required, however a pain management program was recommended.
On May 14, 2010, the worker underwent left shoulder surgery. She attended post-surgical treatment and continued to experience pain in the left shoulder. The operating area determined the worker attained maximum medical recovery (MMR) on July 28, 2010. It was also determined that a permanent impairment was evident for the left shoulder and left hip impairment.
In February 2011 the worker was assessed by a psychiatrist and prescribed a trial of medication for depression.
On March 1, 2012, the NEL clinical specialist communicated that the worker was entitled to a 19% NEL award for the left shoulder and left hip conditions.
In a letter dated June 5, 2013 the case manager determined the worker was not entitled to benefits for psychotraumatic disability and chronic pain disability.
The worker objects to the above noted decisions and the issues have been referred to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
15-04-02 Psychotraumatic Disability 15-04-03 Chronic Pain Disability 18-02-05 Determining Average Earnings – Concurrent Employment
October 14, 2009 October 14, 2009 October 12, 2004
18-03-02 Payment and LOE Benefits
August 1, 2007
18-05-03 Determining the Degree of Permanent Impairment
October 1, 2011
19-02-02 The Goal of ESRTW and the Roles of the Parties
October 12, 2004
ANALYSIS
For the reasons that follow, the worker’s appeal is allowed in part. In arriving at the conclusion, I considered the file record, the worker’s testimony, worker representative’s submission, and relevant operational policies.
During the hearing, the worker representative indicated the worker’s left shoulder condition has deteriorated since it was evaluated in 2012. He seeks a decision with respect to the worker’s entitlement to a NEL redetermination for the left shoulder. This issue under dispute is the 19% NEL quantum for the left shoulder and left hip impairment. Given the worker representative has raised the issue of a NEL redetermination for the left shoulder noting the worker had surgery in 2015, I make no finding on the issue of the NEL quantum. The worker representative will pursue entitlement for a NEL redetermination for the left shoulder with the operating area.
Worker testimony
The worker testified that the modified work provided by the accident employer was not suitable. She was required to perform her pre-accident duties and seek assistance from co-workers for certain tasks or utilize work practices so that she did not re-injure her left shoulder. She explained that her job duties involved providing care for 10-12 residents and helping them with activities of daily living. This included helping them to get out of bed, turning residents, feeding, showering, pushing residents in a wheelchair into the dining room, pushing the beverage cart and hanging clothes in closet racks which required frequent stretching and reaching.
She stated that it was difficult to perform her job tasks because the recommendations in the ergonomist report were not carried out by the employer. She noted that the ergonomist did not take into consideration that she had a compensable left hip problem and all the job tasks are performed in a standing position. There were limited opportunities to take micro breaks. She stated that aside from her pre-injury position, the employer did not offer any alternative modified work and there was no contact with the employer after she stopped working. She indicated that she was essentially performing her pre-injury job duties.
The worker testified that she continued to work because she needed money to pay her household bills. She did her best to serve the residents while cooperating in the return to work plan. She stopped working in April 2009 after re-injuring her left hip.
She became depressed in 2009 after re-injuring her left shoulder and hip. She had problems falling asleep and became dependent on friends to complete activities of daily living due to ongoing pain. She discussed her psychological difficulties with Dr. Wienberg and was prescribed medication. Dr. Wienberg also referred her to Dr. Eastwood, psychologist for treatment. She attended treatment which was paid for by the WSIB. She also attended treatment for her psychological problems which she paid for with her own funds. She continues to feel depressed because of ongoing limitations for the left shoulder and left hip. She continues to rely on medication for her psychological symptoms. She denied having any psychological problems prior to the November 2007 compensable accident.
The worker testified that she had three left shoulder surgeries. The first one was in 2010 and the most recent procedure was in 2015. She was not able to provide any further details. She stated that she has seen various doctors regarding her ongoing pain and treatment has provided very little relief. She explained that her physical and psychological problems have impacted her marriage and her quality of life. She had to shave her head because she can no longer comb her hair. She has experienced a lack of voluntary control over urination. She relies on friends, neighbours and paid help with such things as meals, laundry and chores. She applied for the Canada Pension Plan benefit at 60 years of age and began to receive her work pension.
Earnings Basis
Policy 18-02-05 states that where a worker is concurrently employed at the time of injury, the average earnings are the earnings from all employment at the time of injury. The policy goes on to states that a worker's short-term average earnings are the worker's total earnings from all concurrent employment, subject to the statutory maximum.
The worker’s representative submitted that the calculation of the worker’s earnings should include earnings from both employers.
I note the worker’s short-term average earnings calculation is documented in memo 13, dated January 18, 2008. The payment specialist determined the worker’s gross average earnings as $985.94. It was confirmed that the worker earned $695.38 per week with the accident employer and $290.56 with the concurrent employer. The information used to calculate the short-term rate has not been disputed and I note that earnings from both employer’s was utilized to establish the weekly gross earning.
Given the available information, I find no error in the calculation of the short-term average earnings.
Psychotraumatic Disability/Chronic Pain Disability
I find the worker is entitled to benefits for psychotraumatic disability.
The worker’s representative submitted the worker’s depression is work-related and endorsed by the physicians who treated her including Dr. Wienberg and Dr. Eastwood. He noted the worker has been diagnosed with major depressive disorder and attended treatment sponsored by the WSIB. He noted the permanent impairment to the left shoulder and left hip caused the worker to be depressed and she attended treatment and was prescribed medication which did not improve her condition.
Policy 15-04- 02 states 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.
I find it significant that the documentary record suggests after the worker’s reinjured herself in March 2009 and that she began to experience psychological difficulties. Dr. Weinberg, the worker’s family doctor, first documented that the worker had depression and anxiety in the Health Professional’s Continuity Report (Form REO8) dated April 15, 2009 and mentioned the flare-up of left shoulder tendonitis and left hip bursitis as a cause for her symptoms at the time. Dr. Weinberg reiterated her position in a letter dated July 10, 2009 outlining that the re-injury and depression made her unable to work. The worker was later referred to a psychologist, Dr. Eastwood in November 2009 by the operating area.
Dr. Eastwood’s report of January 15, 2010 mentions the worker’s re-injury as a contributing factor to the worker’s psychological problems. Dr. Eastwood indicated that the worker was experiencing chronic pain, sleep disturbance and significant depression. Dr. Eastwood diagnosed major depressive disorder and queried pain disorder due to the worker’s inability to work due to her work-related injuries. The worker was also assessed by Dr. Awad, psychiatrist on February 25, 2011. Dr. Awad’s report indicated the worker had major depressive disorder related to chronic pain and her inability to function properly. I note the worker was referred to the WSIB Function and Pain Specialty Program in 2012. The comprehensive assessment report dated May 24, 2012 provided a diagnosis of pain disorder with both psychological factors and major depressive disorder and recommended that she attend group based treatment in the program.
In my view, there was no “organic brain syndrome” in this case. The worker’s psychological problems were also not an “indirect result of a physical injury”. In that regard, she did not have an emotional reaction to her left shoulder and left hip injury and there is no evidence to suggest that she suffered a reaction to a medical treatment process. However, I find the documentary evidence supports her psychological problems are related to her severe physical disability/impairment from the injury. She developed psychological problems related to the physical pain due to the compensable accident and the re-injury in March 2009. The evidence supports that despite various modalities of treatment and medical rehabilitation, her compensable condition did not improve and this has taken a toll on her emotional state. The work-related accident resulted in a permanent impairment for the left shoulder and left hip which resulted in a 19% non-economic loss (NEL) award. Given the worker’s symptoms and testimony, I am satisfied the worker’s circumstances fit within the parameters of policy 15-04-02. The physicians who have treated the worker’s psychological problems all support the condition is related to the left shoulder and left hip impairment. As such, I find the worker is entitled to benefits for major depressive disorder. Given entitlement has been accepted for psychotraumatic disability, there is no review required under policy 15-04-03.
Job Suitability/Loss of earnings
I find the personal support worker position was not suitable with accommodation.
The worker representative submitted the worker was entitled to full LOE benefits when she stopped working in 2009. He noted the work was not suitable for the worker’s compensable left shoulder and left hip impairment and the worker went on to receive a 19% NEL award for the compensable condition. He noted the April 3, 2009 ergonomist report pointed out that if the worker’s job duties continue to aggravate the left shoulder that the position may not be suitable for the worker in the long term.
Policy 19-02-02 states that suitable worker is work that is within the worker’s functional abilities, that the worker has, or is able to acquire, the necessary skills to perform, does not pose a health or safety risk to the worker or co-worker’s and where possible restores the worker’s earnings.
I find it significant that the worker re-injured her left shoulder and left hip in March and April 2009 and she began experiencing psychological difficulties around the same time. I note the worker expressed concerns with the return to work plan back in 2009. She wrote a letter to the ergonomist on March 26, 2009 and outlined she was having issues showering clients, pushing wheelchairs, providing care to residents, getting them out of bed, and sorting clothes. The ergonomist conducted a review of the worker’s concerns and in a report dated April 3, 2009 the ergonomist acknowledged the concerns raised by the worker and recommended work practices to avoid further aggravation to the left shoulder. I note the recommendations were suggestions to help the worker reduce risk factors in the job which was noted to involve reaching, pushing, repositioning residents, and dealing with resistive and heavy clients.
The worker continued to express concerns with the return to work plan and wrote a letter to the case manager on April 11, 2009. She advised the case manager that she tried the recommendations and found them to be difficult noting her injuries. The worker testified that she had difficulties performing her job tasks given her left shoulder and hip limitations. She noted that she was performing her pre-accident job tasks and no other modified work was provided by the employer.
I find the personal support worker position was not suitable for the worker’s left shoulder and left hip impairment. The ergonomist noted in her April 2009 that the position may not be suitable if it continued to aggravate the worker’s shoulder condition. Given the worker’s concerns noted on the file, the fact that she re-injured her left shoulder and left hip as a result of returning to the same job duties and her testimony it is clear the work was not suitable for the compensable condition.
In my view, the employer had an opportunity to provide suitable work and did not. The evidence suggests the onus was placed on the worker to utilize proper body mechanics and correct postures to complete her job tasks. It would appear the work was not suitable and as a result the return to work plan did not succeed as planned. There was no effort on behalf of the employer to provide alternative safe and suitable work.
Policy 18-03-02 states that if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
The case manager denied entitlement to full LOE benefits on the basis the worker remained partially impaired and capable of participating in the return to work plan that was arranged on April 1, 2009.
I find the worker is entitled to full LOE benefits from the date that she stopped working in April 2009. According to the file documentation, the worker’s last day of work was April 7, 2009. The worker is entitled to full LOE benefits until July 10, 2009 noting she was unable to work due to her physical and psychological condition. Ongoing entitlement to LOE benefits is left to the discretion of the operating area.
CONCLUSION
The short term average earning were calculated correctly.
The worker is entitled to benefits for major depressive disorder.
The pre-injury job with accommodation was not suitable. The worker is entitled to full LOE benefits from April 7, 2009 until July 10, 2009. Ongoing LOE benefits are to be adjudicated by the operating area.
The objection is allowed in part.
DATED August 27, 2021
F. Amorim
Appeals Resolution Officer
Appeals Services Division