WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20210003
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
HEARING: Hearing in Writing
HEARD by: Kelly Gordon, Appeals Resolution Officer
DATED: February 12, 2021
ISSUES
The worker, through his representative is objecting to the following decisions:
The Case Manager’s (CM) decision dated June 5, 2018 that denied entitlement to sleep apnea as a condition resulting from the work-related disablement/impairment.
The Nurse Consultant’s (NC) decision dated July 4, 2018 that denied entitlement to hearing loss and hearing aid(s).
The CM’s decision dated January 15, 2019 that determined the compensable head injury resolved, and denied ongoing entitlement as of January 29, 2019
The CM’s decision dated March 26, 2019 that denied ongoing psychological disability entitlement
beyond January 29, 2019
PRELIMINARY ISSUE
I find it significant here to note the worker representative’s submission. The representative objects to issues that I do not have jurisdiction to address in this appeal. These include neck entitlement, earnings basis, and denial of medication (Biphentin). While I note the representative refers to these as issues in dispute, I am unable to include them in this decision, as they are not included on the Appeal Readiness Form (ARF). As such, I will only be addressing the issues listed on the ARF in this appeal.
BACKGROUND
On October 3, 2016, this worker was holding a ladder for a co-worker when a 50 pound ceiling tile fell from a height of 12 feet, and struck the worker on the top of his head. The worker reported the injury, and sought medical attention the same day. Entitlement initially was allowed for a concussion, and was later extended to include a cervical strain.
As the worker continued to experience ongoing concussion symptoms, the worker was referred to the Toronto Rehabilitation Institute (TRI) for a Mild Traumatic Brain Injury (MTBI) assessment. The TRI assessment took place from February to June 2017. When discharged from the TRI, the worker was also diagnosed with adjustment disorder with anxiety and a somatic focus. 12 weeks of therapy was recommended in the Complex Injury Outpatient Rehabilitation (CIOR) program, and the worker completed the recommended treatment. Upon discharge from the treatment program, psychological treatment was recommended in the community. The worker was seen at the community mental health program (CMHO), and the worker underwent a psychological assessment with Dr. Moustgaard in
June 2018.
According to the TRI assessment reports, the assessors note the worker has experienced hearing loss in the right ear. Without a prior audiogram, the assessors are not sure if the hearing loss is a result of the workplace accident. In the decision dated May 25, 2018, the CM accepts the worker’s hearing loss is a result of the accident, and the CM allows entitlement in this claim for a right hearing aid on a one (1) time basis. New information was later submitted to file, and the CM referred the claim to a WSIB Medical Consultant (MC). The CM asked the MC to provide a medical opinion regarding the cause of the worker’s hearing loss. The MC provides the opinion that the cause of the worker’s hearing loss cannot be determined. The CM accepts the MC’s opinion that there is a possibility that the hearing loss could be due to non-compensable reasons, and in the reconsideration decision dated July 4, 2018, the CM overturns the prior decision, and denies entitlement to hearing loss and hearing aids in this claim.
In the decision dated June 5, 2018, the CM notes the worker’s family doctor referred the worker for a sleep study. The worker was then diagnosed with sleep apnea, and the worker’s doctor related the sleep apnea to the worker’s 40 pound weight gain in recent years. The worker claimed the 40 pound weight gain was a result of inactivity due to the workplace accident, and the worker claimed entitlement to sleep apnea as a condition resulting from the work-related head injury. The CM reviewed the evidence on file, and determined it is impossible to directly relate the head injury to the sleep apnea. Therefore, the CM denied entitlement in this claim for the diagnosed sleep apnea.
In the decision dated January 15, 2019, the CM refers to the TRI reports on file that support a normal neurological examination, and normal neuroimaging. The TRI also provides a prognosis of continued improvement, and likely symptom resolution over 12 to 20 weeks from the date of the assessment report. Unfortunately, the worker was involved in a non work-related motor vehicle accident (MVA) in
November 2018. This accident caused an exacerbation of the worker’s concussion symptoms. The CM extended entitlement to LOE benefits to January 29, 2019. The CM then terminated LOE benefits noting the worker’s ongoing medical condition was related to the non-compensable MVA.
In the decision dated March 26, 2019, the CM reviewed the psychological reports on file, and allowed entitlement to temporary psychotraumatic disability. The CM accepted the diagnosed adjustment disorder with mixed anxiety with somatic focus. In the same decision, the CM states the worker does not have entitlement to depression, as this is a pre-existing condition, but it may have been exacerbated with the compensable accident/injuries and any symptoms and treatment recommendations would be blended under the allowed diagnosis. The CM refers to the non-compensable MVA in November 2018, and states that since the worker’s compensable head injury had fully resolved the worker no longer has psychotraumatic disability entitlement. As such, the CM terminated entitlement to psychological treatment as of January 29, 2019.
The worker representative submitted the Intent to Object (ITO) Form requesting a reconsideration of the denial to ongoing entitlement in this claim. In the reconsideration decisions dated July 18, 2019, and March 5, 2020, the CM upheld the denial of ongoing entitlement including psychotraumatic disability entitlement in this claim.
The worker representative submitted the ARF dated June 8, 2020, confirming the worker’s objection to the issues noted above.
The worker’s objection to the issues noted above form the basis of this appeal.
AUTHORITY
Operational Policies:
11-01-01 Adjudicative Process
15-05-01 Resulting from Work-Related Disability/Impairment
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
18-03-02 Payment and Reviewing LOE benefits (prior to the Final Review)
15-04-02 Psychotraumatic Disability
11-01-05 Determining Permanent Impairment
ANALYSIS
In arriving at the following decisions, I have considered the information in the claim file, the worker representative’s submission, as well as the appropriate Operational Policies.
Attached to the ARF, the worker representative provided a submission dated June 8, 2020. In this submission, the representative summarizes the information on file. This includes the memorandums, correspondence, medical reports, and work transition reports. The representative argues the worker did not recover from the head injury accepted in this claim, and notes the evidence on file confirms the worker continued to report consistent concussion symptoms for at least 27 months. The representative argues the worker’s concussion symptoms did not resolve prior to the non-compensable MVA, but were instead exacerbated by the MVA. The representative refers to Dr. Asrat’s report dated October 1, 2018, that confirms the worker continues to suffer from symptoms of light-headedness, nausea, fatigue, headaches, memory loss, concentration problems, confusion, light and noise sensitivity, tinnitus, hearing difficulties and balance issues. As confirmed in this report, the worker was experiencing these symptoms less than two (2) months prior to the November 2018 MVA.
The worker representative also argues that the findings as provided by the worker’s treating psychologists are in contrast to the psychological report received by the TRI. Specifically, the treating psychologists maintain the worker is totally psychologically disabled, where the TRI states that although the worker continues with psychological problems, the worker has no psychological restrictions. In terms of entitlement to sleep apnea as a secondary condition in this claim, the representative refers to the TRI reports that confirm the worker’s sleep apnea is a result of weight gain, and the evidence on file supports the worker’s weight gain is a result of the injuries accepted in this claim. As such, the worker should be granted entitlement to the sleep apnea. The representative also states the medical evidence on file supports the worker’s hearing loss is a result of the workplace accident, and argues the decision to deny entitlement because there was not an audiogram done prior to the workplace accident is not acceptable. If there was no audiogram prior to the accident, the worker must not have had hearing issues prior to the accident. The representative also notes that entitlement is not based on confirmation of
work-relatedness, but is instead based on whether the evidence supports it is more probable than not. For these reasons, the representative is objecting to the issues stated above.
The employer is not participating in this appeal, and no submissions have been provided for my review.
In my review of the evidence on file, I note the worker underwent a multidisciplinary assessment at the TRI from February 2, 2017 to March 14, 2017. The worker was assessed by a team that included:
Neurologist – Dr. Gladstone
Neuropsychologist – Dr. Ray
Occupational Therapist – Dr. Segal
Physiotherapist – Mr. Fong
Pharmacist – Dr. Chang
Neurologist – Dr. Rutka
As per the TRI executive summary, the injury related diagnoses include:
Direct head injury, probable cerebral concussion/mild traumatic brain injury
Cervical strain with no evidence of myelopathy or radiculopathy
Persistent headaches attributable to mild direct head injury
Dizziness – the worker describes a sense of imbalance that is made worse with activity. There is no evidence for post-traumatic benign positional vertigo on clinical examination. Laboratory inner ear testing was unremarkable for the most part. An absent right sacculocolic (C-VEMP) response was thought most likely to be secondary to a conductive component to hearing loss noted in his right ear.
Perceived hearing loss – the worker’s audiogram demonstrates a mild high frequency hearing loss in the left ear. It is possible there will be some slight conductive component to hearing loss between 250 to 4000 Hz. In the absence of comparative audiometry, it is difficult to know whether the worker had any underlying hearing loss prior to his October 3, 2016 injury.
Adjustment disorder with anxiety and a somatic focus
Insomnia disorder, middle
Probable persistent dysphoric (depressive) disorder, exacerbated by the accident
Under Non-accident related diagnosis, the TRI assessment states the worker has attention deficit/hyperactivity disorder.
At the time of the TRI assessment, the worker reported the following symptoms:
Cognitive complaints
Neurological complaints
Headache
Musckuloskeletal complaints
Mood changes
Nausea
Fatigue/weakness – generalized
Sleep disturbance
The TRI recommendations include:
Prophylactic therapy such as Nortriptyline for headaches
Tylenol or Advil for acute headache management
Given the worker’s multiplicity of post-accident physical, psychological and cognitive symptoms, and lack of success with return to work (RTW) the worker would benefit from participation in a comprehensive and intensive multidisciplinary mTBI outpatient treatment program such as the CIOR program. The worker is to work with the multidisciplinary team at CIOR for a 12 week program beginning at four (4) days per week. Therapy is to include physiotherapy, occupational therapy, psychology, rehab therapy, kinesiology and education in addition to regular meetings with the CIOR RTW coordinator.
The worker is to follow-up with Dr. Gladstone, neurologist during the fist two (2) weeks of treatment for education regarding concussions and their anticipated recovery trajectory, feedback regarding the results of the multidisciplinary evaluation, and treatment options for symptoms
From a neurological perspective, the worker has been identified as having a bilateral unexplained hearing loss in both ears. The hearing loss is mixed (sensorineural and conductive). Recommendation is made for the worker to undergo repeat audiometry in six (6) months time.
Under prognosis, the TRI assessment states that given the parameters of the injury (no loss of consciousness, no retrograde or anterograde amnesia), and given his normal neurologic examination, and normal neuroimaging, the worker’s prognosis is favourable for meaningful improvement and likely symptom resolution over 12 to 20 weeks. This prognosis is based on the implementation of the treatment recommendations, and if the worker is engaged in treatment, compliant and motivated.
Based on the TRI progress reports on file, the worker started the recommended 12 week treatment program with the CIOR at the TRI on November 13, 2017. The worker participated in individual and group based treatment including physiotherapy, occupational therapy, psychology, kinesiology, and rehabilitation therapy four (4) times per week. The worker completed the treatment, and the worker was discharged on February 9, 2018.
As per the CIOR Program interdisciplinary discharge report dated February 20, 2018, the treating physiotherapist, Occupational therapist, Neuropsychologist, and Group therapist provide summaries of treatment progress and further recommendations.
Physiotherapist
The treating physiotherapist states that therapy focused on education regarding self-management of neck pain, reassurance with dizziness strategies, active conditioning, and overall strengthening. The worker was compliant and engaged during therapy sessions. On re-administration of the Dizziness Handicap Inventory Assessment, (which is a self-rated scale that measures perceived level of handicap to one’s dizziness or unsteadiness), the worker scored 78 out of 100. This score was rated in the severe range. The worker has made some progress with his understanding of balancing his symptoms, focusing on function, and pacing. The worker was advised to stay active, and return to doing the activities (such as going to the gym) he did before the accident. The worker was discharged from physiotherapy, and no further physiotherapy intervention was recommended.
Occupational Therapist
The worker attended treatment one (1) day per week in conjunction with work simulation and relaxation group. Overall, the worker attended therapy on a consistent basis, and was engaged, motivated, and participated in therapy. Treatment focused on education regarding symptom management, establishing a structured weekly routine, and increasing activity tolerance. The worker was encouraged to gradually increase activity level at home and in the community, and to gradually resume activities that he has not engaged in since the accident. Overall, the worker demonstrated functional improvements over the course of treatment, though his progress was noted to be somewhat slow over the 12 week program. The worker was encouraged to participate in activity despite the presence of symptoms, even if for a shorter duration, as this is necessary to build activity tolerance over time. The worker resumed exercising in his gym, and had plans to return to his pre-accident swim schedule. Treatment also included education regarding secondary factors that can impact cognition (fatigue, pain/headache, low mood, anxiety), and compensatory strategies for memory and attention issues. Cognitive activities were completed with the worker to improve confidence with cognitive ability, such as listening to message recordings while taking notes, and switching between multiple cognitive worksheets to address divided attention and mental switching. The worker was able to complete these activities without error, though reported increased mental fogginess upon completion. In terms of return to work, the therapist recommended the worker follow the return to work plan as outlined in the TRI report dated
December 13, 2017. Although the worker reported improvements in regards to physical strength, endurance, and functional activity tolerance, the worker continues to experience ongoing symptoms that include headaches, mental fogginess, and subjective cognitive issues. The worker has learned strategies to manage and compensate for these issues. The worker was encouraged to progress his activity level at home and in the community, and to maintain structure to his day/weekly routine. Ongoing occupational therapy is not required, and the worker was discharged from treatment.
Neuopsychologist
The worker attended 12 sessions of psychological counselling, attending once weekly from
November 15, 2017 to February 9, 2018. The worker demonstrated excellent attendance, strong engagement in sessions, and excellent completion of assigned homework. Although the worker was receptive to treatment interventions, and developed strong cognitive behavioural therapy (CBT) skills by the end of treatment, the worker continued to present with an adjustment disorder with anxiety and a somatic focus by the end of treatment. Recommendation was made for the worker to attend additional psychological intervention sessions in his local area to help him address long-standing interpersonal and mood challenges that may have been exacerbated by his workplace accident. There are no RTW restrictions from a psychological or cognitive perspective.
Group Therapy
The focus on active group therapy was to intensify the treatment goals for:
Balance training
Strengthening of the affected areas
Active conditioning/re-activation
Work simulation/hardening
The worker was actively engaged in both circuit and work simulation group sessions and has shown slight improvement in strength and activity tolerance levels. The worker has consistently been focused on his symptoms of headache, dizziness and fogginess. The worker continued to take frequent, prolonged breaks in between exercises, despite the slight progressions that were made to his circuit and work simulation programs. The worker was provided with encouragement to utilize the strategies provided in CIOR. The worker was receptive to this education.
Return to Work
At the time of discharge, although the worker was enrolled in a work placement program through WSIB, the worker was not assigned to an employer. The worker was meeting once a week with an employment agency to update his resume/cover letter, and to discuss suitable work options. Recommendation was made for the worker to return to work on a gradual basis, as outlined in the return to work plan dated December 17, 2017. Recommendation also was made for the CIOR RTW co-ordinator to assist the worker as he transitions back to work.
Neurologist
Dr. Rutka, neurologist completed a neurotology re-assessment report dated January 15, 2018. Dr. Rutka states although the worker feels better and that his symptoms are not as bothersome, the worker continues to have a number of ongoing complaints. The worker’s repeat neurotologic assessment is negative for post-traumatic benign positional vertigo. The worker continues to complain of dizziness which seems to occur if there is significant stimuli around him or if he gets up to quickly especially in the morning. Repeat laboratory inner ear testing was more or less unchanged from prior testing in
March 2017. The worker’s audiogram demonstrates findings on the right side that seem more likely to represent a sensorineural hearing loss. The worker’s intracranial MRI scan (performed March 13, 2017) was normal. Dr. Rutka states that in the absence of a pre-accident audiogram for comparison, it cannot be determined whether the accident is responsible for the worker’s asymmetric right sided hearing loss. The worker reports that his hearing did worsen following the October 3, 2016, accident. Dr. Rutka recommends the worker wear a hearing aid in his right ear. Dr. Rutka also recommends the worker participate in a trial of vestibular rehab therapy. The main purpose would be to increase the worker’s balance confidence, and improve on any additional activities.
In my review of the medical evidence on file, I note that after the worker was discharged from the TRI,
Dr. Khan, psychologist submitted a consultation note dated February 14, 2018. As per this note, Dr. Khan states he has been treating this worker for approximately one (1) year. Treatment has been provided for the worker’s post-concussion depressive disorder, and the worker struggles with post-concussion syndrome (PCS). Dr. Khan states that although the worker has improved, he has not recovered. The worker needs a good course of cognitive behaviour psychotherapy from a certified PHD psychotherapist, along with supportive psychotherapy. Dr. Khan states the worker is very compliant with treatment.
The WSIB Nurse Consultant (NC) referred the worker for a chiropractic assessment. The worker underwent the chiropractic assessment with Dr. Cohen on April 4, 2018. Recommendation was made for treatment to support the worker with RTW efforts, and to facilitate potential further recovery. The NC approved treatment from April 19, 2018 to July 6, 2018.
Dr. Cohen completed a functional ability form (FAF) dated June 1, 2018. As per this form, Dr. Cohen recommends the worker reduce his hours of work to 16 hours per week. The worker was also instructed to work up to 20 hours per week only if he feels he is capable, and if his symptoms of dizziness and headaches let him.
On June 26, 2018, the NC extended the worker’s chiropractic treatment for an addition eight (8) weeks. Treatment was extended in order to assist the worker with increasing his work hours from 16 to 20 hours per week.
Dr. Cohen completed another FAF dated June 22, 2018. Recommendation was made for the worker to continue through the work experience program at 16 to 20 hours per week for an additional four (4) to six (6) weeks. The worker was then to increase to 20 hours per week for four (4) weeks.
As recommended in the TRI discharge report, the worker underwent an assessment at the WSIB community mental health program. Dr. Moustgaard, psychologist assessed the worker on June 23, 2018. At the time of the assessment, the worker continued to report symptoms that include cognitive fatigue, nausea with dizziness, headache pain, neck pain, back pain, low mood, and insomnia. Dr. Moustgaad states the worker is severely depressed, and his emotional, cognitive, and psychological symptoms of depression are interfering with daily function. The worker presented with worry-related anxiety regarding recovery, and his ability to meet the demands of his work-hardening experience. Dr. Moustgaad diagnosed the worker with adjustment disorder with mixed anxiety and depressed mood. Cognitive behavioural therapy was recommended to assist the worker with mood and anxiety. From a
psychological perspective, Dr. Moustgaard states the worker is not able to return to work. Dr. Moustgaard states the worker’s psychological symptoms of reactivity remain functionally interfering. The anxiety and low mood also remain acute, and impact attention tolerance.
On July 24, 2018, Dr. Asrat, the worker’s family doctor referred the worker to a vision and brain injury clinic noting the worker’s ongoing symptoms related to his post-concussion syndrome accepted in this claim.
In the progress report dated August 8, 2018, Dr. Moustgaard states the worker has made minimal to no improvement with treatment, and the worker’s mood remains depressed. The worker expressed having some increased stamina on a variable basis. Although some days the worker can be active and engaged, this is followed by periods of fatigue and decreased motivation, energy, and initiation. The worker continues to be diagnosed with adjustment disorder with mixed anxiety and depressed mood, with somatic focus.
Dr. Cohen completed another FAF dated August 3, 2018, recommending the worker continue working
16 hours per week, and attempting 20 hours per week when symptoms allow him to do so.
On August 29, 2018, Dr. Cohen sent a message to the worker’s RTW co-ordinator. Dr. Cohen states the worker will be transitioning from passive care to work hardening. Dr. Cohen states the PCS injury has caused the worker to be significantly deconditioned, and a work hardening program will address this through strength training, cardiovascular training, and a build up of the worker’s physical endurance and stamina. Dr. Cohen states the worker has chronic whiplash, and research shows that the most effective treatment for this in a chronic stage is exercise and strengthening under guidance. Up until the time of the report, the worker’s clinical rehab and at home program was all the worker could tolerate. Dr. Cohen states research shows a rehab program focused on safely increasing the worker’s tolerance to activity, and especially to cardiovascular exercise, is a crucial aspect to PCS recovery.
Dr, Moustgaard submitted a progress report dated August 30, 2018. Dr. Moustgaard states the worker has not improved with treatment. The worker’s mood continues to be depressed, and his anxiety-related worry remains high. Variability in energy and stamina persists. The worker continues to report severe symptoms of dizziness, fatigue, feelings of frustration, difficulty with concentration and speed thinking, and sense of restlessness. The worker reported moderate symptoms of headache pain, altered sleep, irritability, depressed mood, difficulty with memory, and light sensitivity. The worker’s diagnosis includes adjustment disorder with mixed anxiety and depressed mood, with somatic focus. Dr. Moustgaard recommends the worker continue treatment, and notes the stress associated with rehabilitation and the RTW program is resulting in increased stress. There is uncertainty with respect to future, which is difficult for the worker to manage at a psychological level. Dr. Moustgaard states the worker is not ready to return to work.
Dr. Asrat submitted a report dated October 1, 2018, confirming the worker has been his patient since November 2016. Dr. Asrat notes that although the worker has undergone multiple medical assessments through the WSIB, the worker continues to report ongoing symptoms of feeling lightheaded, nausea, fatigue, headaches, memory loss, difficulty concentrating, confusion, light and noise sensitivity, tinnitus, hearing difficulties, and balance issues. The worker also continues to suffer from neck, back, and shoulder pains. Dr. Cohen saw the worker on September 12, 2018, and recommendation was made for the worker to continue working 16 hours per week, and attempt 20 hours per week if his symptoms allow him to. The psychiatrist also suggested no change in the worker’s current work schedule. It was Dr. Asrat’s opinion that the worker continued to suffer from post-concussion syndrome, deconditioning, and the worker needed to gain maximum recovery before increasing his work hours.
Dr. Cohen submitted a report dated October 10, 2018. As per this report, Dr. Cohen requests a 10 week work hardening program to assist the worker with the following:
Increase in physical endurance
Decrease in intensity of concussion symptoms during exercise and an increase in his tolerance to the exercises that cause these symptoms
Increase in full body strength and range of motion (ROM)
Increase tolerance to elevations in heart rate (HR)
Decrease in neck pain with resisted motions
Dr. Oroz submitted a report dated November 27, 2018. Dr. Oroz states the worker was hit by a car in November 2018, and sustained multiple body contusions on the right arm, shoulder, and neck as well as left elbow. The worker also sustained a minor head injury that aggravated his pre-existing concussion injury. The worker was seen in the emergency department at the local hospital. Noting the injuries sustained Dr. Oroz states the worker is not able to return to any work activities until further assessment.
Unfortunately, although the hospital emergency reports are on file, they are unreadable.
Dr. Kabir submitted a report dated January 9, 2019. As per Dr. Kabir, the worker reported symptoms of depression, anxiety, light headedness, dizziness, and has issues with concentration and lacks focus.
Dr. Moustgaard submitted a report dated January 16, 2019. Dr. Moustgaard states that as per the last progress note dated November 1, 2018, the worker presented as severely depressed, and was not able to work in any capacity due to his persistent symptoms associated with his work-related concussion.
Dr. Moustgaard states he later learned the worker suffered injuries because of being struck by a vehicle as a pedestrian in November 2018. The accident resulted in a repeated concussion (causing amplification of existing cognitive, emotional and vestibular symptoms). The worker also suffered soft tissue injuries to his neck, shoulder, elbow, and multiple body contusions.
Dr. Cohen submitted a report dated January 17, 2019, confirming he has been treating the worker prior to and after the second accident in November 2018. Dr. Cohen states the worker’s post-concussion syndrome continues to be triggered. Based on Dr. Cohen’s ongoing observations throughout the worker’s attempts at mandatory part-time work placement for eight (8) months in 2018, Dr. Cohen provides the opinion that at the time of the second concussion in November 2018, the worker was not medically cleared to work in any practical capacity. Dr. Cohen continues to treat the worker in a new treatment plan three (3) times per week, and states the worker is still unable to work.
I have considered all of the medical evidence noted above in coming to the following conclusions.
- Does the worker have entitlement to sleep apnea as a condition resulting from the work-related disablement/impairment?
I find the worker does not have entitlement to sleep apnea in this claim.
As per Policy 15-05-01, workers sustaining secondary conditions that are causally linked to the
work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.
I note the worker underwent a sleep study on June 24, 2017. As a result, Dr. Leech, sleep specialist diagnosed the worker with a moderate degree of obstructive sleep apnea. Dr. Leech states that since the October 3, 2016 workplace injury, the worker gained 40 pounds. Dr. Leech states that inactivity because of the head injury contributed to the worker’s weight gain that could have caused the worker’s sleep apnea.
Having considered all of the information on file, I find the worker does not have entitlement to sleep apnea in this claim. In coming to this determination, I have placed significant weight on the lack of evidence that supports the worker’s weight gain is a result of inactivity due to the work-related injuries. While I note the worker states, he gained 40 pounds since the accident, there is no medical evidence on file to support the worker’s weight prior to the accident, or that the worker’s weight gain is solely due to the workplace injuries. I also place significant weight on Dr. Leech’s report that states the worker’s weight gain could have caused the worker’s sleep apnea. As such, I do not find the medical evidence on file supports it is more probable than not that the worker’s sleep apnea is a secondary condition that is causally linked to the work-related injury. Specifically, I cannot causally link the worker’s concussion and post-concussion syndrome to the worker’s sleep apnea. Therefore, I find the worker does not have secondary entitlement to sleep apnea in this claim.
- Does the worker have initial entitlement to hearing loss as a result of the workplace accident? If so, does the worker have entitlement to hearing aid (s)?
I find the worker does have entitlement to hearing loss in the right ear as a result of the workplace accident. I also find the worker does have entitlement to a right ear hearing aid.
Policy 11-01-01 states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of an accident and compatibility of the diagnosis to the accident or disablement injury. In this case, I note there is no objection to the determination there is a worker and an employer. Proof of accident has also been established in this claim. What needs to be addressed in this appeal is whether the worker has entitlement for hearing loss because of the workplace accident. As such, proof of a personal work-related injury and compatibility for the worker’s hearing loss needs to be determined.
At the time of the TRI assessment, Dr. Rutka stated there was mild high frequency hearing loss in the left ear, and right hearing was worse with a greater conductive component between 250 to 4000 Hz. Stapedial reflexes were absent bilaterally. Dr. Rutka stated that without a prior audiogram, it cannot be determined whether the worker’s hearing worsened due to the work-related incident.
In the January 2, 2018, neurology reassessment, Dr. Rutka stated the worker reported his hearing worsened due to the workplace accident. The worker has difficulties hearing in noisy situations, and the worker would benefit from a right ear hearing aid. Again, Dr. Rutka stated that it cannot be determined whether the worker’s hearing loss is secondary to the workplace injury without having a prior audiogram.
The January 2, 2018 audiogram on file shows mild high frequency hearing loss in the left ear. The worker has right mixed moderate hearing loss. The January 2, 2018 vestibular testing also showed abnormal right C-VEMP likely related to the right hearing loss.
The claim was referred to a WSIB Medical Consultant (MC) and in the memorandum dated
June 22, 2018, the MC provides the opinion that the cause of the worker’s hearing loss cannot be determined without an audiogram dated prior to the workplace accident. The MC refers to Dr. Rutka’s March 2017 and January 2018 reports that state since there is no comparative audiogram from prior to the workplace accident, the workplace accident cannot be determined as the cause of the worker’s hearing loss.
Based on my review of the evidence, I find the worker does have entitlement to left and right ear hearing loss. In making this determination, I have placed significant weight on Dr. Rutka’s reports on file.
Dr. Rutka confirms the worker does have left and right ear hearing loss. Dr. Rutka also confirms the hearing loss is compatible with the mechanism of injury accepted in this claim. Dr. Rutka provides the opinion that it is because there is not a comparative audiogram from prior to the workplace accident that it cannot be determined the workplace accident caused the hearing loss. While Dr. Rutka provides this opinion, I note the evidence does not have to confirm the condition resulted from the mechanism of injury. Instead, the evidence must support that it is more probable than not that the mechanism of injury caused the injury. In this case, the worker has consistently reported hearing loss since the accident date. I would expect that if the worker were also having hearing loss prior to the accident, medical attention would be sought, and an audiogram would have been performed. As there is no evidence of this, I find it is more probable than not that the worker’s hearing loss is a result of the mechanism of injury accepted in this claim.
For the reasons stated, I find the worker does have entitlement to left and right ear hearing loss. As
Dr. Rutka recommends a right ear hearing aid; I also find the worker has entitlement to the recommended right ear hearing aid.
- Does the evidence support the worker’s compensable head injury resolved in November 2018? or does the worker have ongoing entitlement to the post-concussion syndrome beyond
January 29, 2019?
I find the post-concussion syndrome accepted in this claim did not resolve. I also find the worker has ongoing entitlement to the post-concussion syndrome, and the resulting symptoms.
Policy 11-01-05 states a work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
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 work reintegration process.
Policy 15-06-08 states that if a worker’s loss of earnings (LOE) is not solely the result of the work-related injury/disease; benefits may be adjusted to reflect the degree of work-related impairment.
A worker’s status may change in ways that may not be related to the work-related injury/disease. A
post-accident, non-work-related change in circumstance may affect whether a worker’s loss of earnings results solely from the work-related injury/disease.
Examples of post-accident, non-work-related change in circumstances may include, but are not limited to
injuries sustained as a result of a non-work-related accident
deterioration of a pre-existing condition
permanent relocation for reasons unrelated to the work-related injury
physical conditions (e.g., pregnancy, cardiac, hernia)
an urgent family matter requiring the worker to leave the province/country for an extended period of time, or
incarceration.
Policy 15-06-08 goes on to state that LOE benefits are only paid while there is a work-related impairment. If at any point the clinical evidence shows that the sole cause of the worker’s loss of earnings is the
post-accident, non-work-related change in circumstance, and no work-related permanent impairment exists, benefits cease.
Where the worker is temporarily totally disabled/fully impaired because of both the work-related injury/disease and the non-work-related change in circumstance, the decision-maker pays full benefits until the level of the work-related impairment is clinically determined. At that time, ongoing benefits are paid commensurate with the degree of remaining work-related impairment. If the work-related impairment is clinically determined to be partial, but the worker is still not able to work, then a suitable occupation (SO) would be identified and LOE benefits paid based on the earnings of the SO.
As stated above, I have thoroughly reviewed all of the medical evidence on file. This includes the reports prior to and after the worker’s non-compensable accident in November 2018. In this review, I note that at the time of the TRI assessment, and at the time of the TRI discharge, the worker continued to complain of ongoing symptoms that include dizziness, headaches, imbalance, fatigue, and feelings of fogginess. The worker also reported issues with cognition, focusing, memory and concentration. This is confirmed in Dr. Rutka’s reassessment report dated January 15, 2018, as Dr. Rutka states the worker continues to have a number of ongoing symptoms. Dr. Rutka notes the worker was prescribed medication to assist the worker with his headaches.
Dr. Asrat’s October 1, 2018, report confirmed that although the worker has undergone multiple medical assessments, the worker continues to report ongoing symptoms of feeling lightheaded, nausea, fatigue, headaches, memory loss, difficulty to concentrate, confusion, light and noise sensitivity, tinnitus, hearing difficulties and balance issues. Dr. Asrat provided the opinion that the worker continued to suffer from
post-concussion syndrome and deconditioning. Prior to increasing his work hours, Dr. Asrat stated that the worker needed to gain further recovery.
Dr. Cohen’s October 10, 2018 report also stated that the worker still had symptoms of dizziness when he pushes his limits. Dr. Cohen requested a 10 week work hardening program to assist the worker with increasing his physical endurance, decreasing intensity of concussion symptoms, increase body strength and improve range of motion (ROM). The program would also increase tolerance to elevations in heart rate and decrease neck pain.
Dr. Cohen submitted FAFs throughout the worker’s treatment with the last one dated October 1, 2018. As per this FAF, Dr. Cohen continued to provide the opinion that the worker’s work abilities have not changed. Dr. Cohen recommended the worker continue working 16 hours per week, and to attempt
20 hours per week when symptoms allow.
Because of the November 2018, non-work related accident, the worker sustained multiple body contusions including the right arm, shoulder, and neck as well as left elbow. The worker also sustained a minor head injury that is noted to have aggravated his pre-existing concussion injury. Dr. Kabir’s
January 9, 2019 report noted the worker’s symptoms include depression, anxiety, light-headedness, dizziness, and issues with concentration and focus. Dr. Moustgaard’s January 16, 2019, report referred to his November 1, 2018, progress report that stated the worker was severely depressed, and was not able to work in any role or any capacity due to his mood and persistent symptoms associated with his
work-related concussion. Dr. Moustgaard goes on to state that the November 2018 accident resulted in a repeated concussion (causing amplification of existing cognitive, emotional and vestibular symptoms).
Dr. Cohen’s January 17, 2019, report stated the worker’s post-concussion syndrome continues to be triggered, and prior to the November 2018 accident, the worker was only able to perform part-time work.
Based on my review of the evidence, I find the worker’s post-concussion syndrome did not resolve prior to the November 2018, non work-related accident. I find the worker has ongoing entitlement to the post-concussion syndrome accepted in this claim. In making this determination, I have placed significant weight on the medical evidence noted above that supports the worker continued to have the same symptoms just prior to the non-compensable accident as after the non-compensable accident.
Specifically, I accept the medical evidence supports the worker has consistently reported ongoing symptoms of feeling lightheaded, nausea, fatigue, headaches, memory loss, difficulty concentrating, confusion, hearing difficulties, and balance issues. I also place significant weight on the evidence that supports because of these ongoing issues, the worker continued treatment with Dr. Cohen and Dr. Asrat. At the time of the non-compensable accident, the worker was still in treatment. For these reasons, I do not find the worker reached MMR for the post-concussion symptoms prior to the non work-related accident in November 2018. I also find the nature of the worker’s compensable condition prevented the worker from returning to any type of work prior to January 29, 2019. Further to Policy 15-06-08, I find the clinical evidence on file supports the worker is entitled to ongoing LOE benefits as I still find there is a work-related impairment beyond November 2018.
For the reasons stated above, I do not find the worker’s post-concussion syndrome resolved prior to January 29, 2019. Instead, I find the worker has ongoing entitlement to the post-concussion syndrome beyond January 29, 2019.
- Does the worker have ongoing psychological disability entitlement beyond January 29, 2019?
I find the worker has ongoing entitlement to psychotraumatic disability beyond January 29, 2019.
Policy 15-04-02 states that psychotraumatic disability/impairment is considered a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition.
Policy 11-01-05 states a work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
I note the CM’s memorandum dated March 26, 2019. As per this memorandum, the CM states that the accepted post-accident psychological symptoms are:
Anxiety (elevated post-accident)
Frustration/irritability
Feeling overwhelmed
Low energy (elevated post-accident)
In the same decision, the CM states temporary Psychotraumatic Disability entitlement is allowed for the diagnosis of Adjustment Disorder with Mixed Anxiety with somatic Focus. The CM also states the worker’s depression is considered pre-existing, and may have been exacerbated by the compensable accident. Any symptoms and treatment recommendations would be included and allowed.
The worker’s treating psychologist, Dr, Moustgaard submitted many progress reports to file. In the
August 30, 2018 progress report, Dr. Moustgaard stated the worker has not improved with treatment. The worker’s mood continues to be depressed, and his anxiety-related worry remains high. The worker continues to report severe symptoms of dizziness, fatigue, feelings of frustration, difficulty with concentration, speed thinking, and sense of restlessness. The worker reported moderate symptoms of headache pain, altered sleep, irritability, depressed mood, difficulty with memory, and light sensitivity. The worker’s diagnosis continues to include adjustment disorder with mixed anxiety and depressed mood, with somatic focus. Dr. Moustgaard recommended the worker continue treatment, and stated the worker is not ready to return to work.
Dr. Moustgaard’s November 1, 2018 progress note stated the worker has not had any improvement with therapy. The worker is severely depressed and his anxiety level remains high. The worker continued to report severe symptoms of dizziness, fatigue, feeling frustrated, difficulty with concentration, speed of thinking and sense of restlessness. Dr. Moustgaard stated the worker was not able to work in any role or any capacity due to his mood and persistent symptoms associated with his work-related concussion.
The worker’s diagnoses continued to be reported as adjustment disorder with mixed anxiety and depressed mood, with somatic focus.
In the January 16, 2019 report, Dr. Moustgaard stated the November 2018 non-compensable accident resulted in a repeated concussion (causing amplification of existing cognitive, emotional and vestibular symptoms).
Based on my review of the medical reports on file, I find the worker did not recover from the psychotraumatic disability in November 2018. In making this determination, I have placed significant weight on Dr. Moustgaard’s reports on file. Specifically, I note the worker continued to require and participated in psychological treatment immediately prior to the November 2018 non-compensable accident. The diagnosis accepted in this claim is adjustment disorder with Mixed Anxiety with somatic Focus. Entitlement has also been accepted for an exacerbation of the worker’s pre-existing depression.
When comparing the worker’s symptoms prior to and after the November 2018 accident, I find the symptoms are very similar. As the worker was still in active treatment just prior to the November 2018 accident, and that the medical evidence supports the worker continues to suffer from the psychological conditions accepted in this claim, I find the worker does have ongoing entitlement to psychotraumatic disability beyond January 29, 2019.
CONCLUSION
I find the worker does not have entitlement to sleep apnea as a secondary condition in this claim
I find the worker does have entitlement to left and right ear hearing loss. I also find the worker has entitlement to a right ear hearing aid
I find the worker’s post-concussion syndrome did not resolve in November 2018. I also find the worker does have ongoing entitlement to the post-concussion syndrome beyond January 29, 2019
I find the worker does have ongoing psychological disability entitlement beyond January 29, 2019
The worker’s objection is allowed in part.
I ask the Operating Area to determine entitlement to ongoing benefits flowing from this decision.
DATED February 12, 2021
Kelly Gordon
Appeals Resolution Officer
Appeals Services