Worker v. Employer, 2021 CanLII 65124

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20210002

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer

REPRESENTED by: Self (not participating)

HEARING: Telephonic Hearing, February 24, 2021, Toronto, Ontario

HEARD by: C. da Cunha, Appeals Resolution Officer

ADDITIONAL ATTENDEES: None

DATED: February 24, 2021

ISSUES

The worker objects to the Occupational Disease and Survivor Benefits Program (ODSBP) Case Manager’s (CM) April 13, 2016, March 20, 2018, and October 3, 2018 decisions, the ODSBP Adjudicator’s December 12, 2019 decision, and the ODSBP Nurse Consultant’s June 19, 2020 decision under claim A.

The worker also objects to the CM’s June 10, 2020 decision under claim B.

He seeks:

1. Entitlement to a psychotraumatic disability, and funding for two Bandito Masks, under claim A; and,

2. Entitlement to a psychotraumatic disability under claim B.

During a preliminary discussion prior to the start of the oral hearing, I informed the worker and his representative that, based on my review of the case files, I find that entitlement to post-traumatic stress disorder (PTSD) and a major depressive disorder (MDD) is in order under claim B. Therefore, entitlement to the same is not in order under claim A.

I also explained that my findings of fact would be limited to granting entitlement to the psychotraumatic disability under claim B and denying it under claim A. As there is a significant deficit of mental health documentation on record from 2011 to 2017, the nature and duration of benefits arising from my decision to grant entitlement to a psychotraumatic disability under claim B would be left to the discretion of the Operating Area.

The oral hearing would, therefore, focus on my questions to the worker regarding the worker’s mental health, both before and after the accidents, the worker’s vocational activities, and the issue of entitlement to funding for two Bandito masks. They both expressed understanding and agreement with this approach and outcome.

BACKGROUND

On February 23, 2005, the worker informed the Workplace Safety and Insurance Board (WSIB) that, on August 23, 2003, he had sustained a smoke inhalation injury as a result of a barn fire. He was in his late 30’s on the day of injury (DOI), and had worked with the employer as a Farm Worker for over six months.

The WSIB registered claim A and granted entitlement to irritant induced occupational asthma arising from the smoke inhalation, subsequently recognizing that he had sustained a permanent impairment (PI) for the same. On May 10, 2006, the worker received a 27% non-economic loss (NEL) benefit in recognition of the PI.

On September 9, 2004, an automatic door covering an auger closed on, and crushed, the worker’s right wrist. He was 38 years of age at the time, and had worked with the employer for over 1 ½ years.

The WSIB registered claim B and granted entitlement to the crush injury. On March 6, 2006, the worker underwent surgery to the right wrist. The WSIB subsequently recognized that he had sustained a PI to the right wrist. On June 29, 2007, the worker received a 15% NEL award in recognition of the PI.

On April 16, 2006, the worker returned to work with the employer, at no wage loss.

The worker wrote to the WSIB on April 1, 2016, reporting that he had been suffering from mental health difficulties since the fire of August 23, 2003 (i.e. claim A) and had been diagnosed with PTSD.

The Decisions

On April 13, 2016, under claim A, the ODSBP CM denied entitlement under the WSIB’s psychotraumatic disability policy. The ODSBP CM found that the worker had not been diagnosed with mental health difficulties until October 18, 2011, more than five years after the August 23, 2003 DOI. As the WSIB’s psychotraumatic disability policy requires that the psychological disability/impairment must manifest itself within five years of either the DOI or the most recent surgery, in this specific case, that criterion is not met. Therefore, the ODSBP CM denied entitlement to a psychotraumatic disability.

The ODSBP CM, and an ODSBP Adjudicator, reconsidered and upheld the original decision on March 20, 2018, October 3, 2018, and December 12, 2019, for the same reason.

On November 26, 2019, the worker’s representative contacted the WSIB, requesting entitlement to a psychotraumatic disability under claim B.

The CM denied the worker’s request on June 10, 2020. The CM found that, while the five-year criterion had been met under claim B, none of the other criteria necessary to grant entitlement under the WSIB’s psychotraumatic disability policy were present.

On June 10, 2020, the worker’s wife contacted the WSIB, requesting funding for Bandito masks under claim A.

The NC denied the worker’s request on June 19, 2020, finding that Bandito masks are not health care items, for WSIB purposes.

The Worker’s Position

In closing the oral hearing, the worker representative argued that funding for two Bandito masks should be granted because WSIB funded his Bandito masks in 2006. He has used those masks to the present. They have maintained his independence, improved his quality of life, allowing him to better carry out both his vocational and non-vocational activities.

AUTHORITY

Operational Policies

15-04-02: Psychotraumatic Disability

17-07-06: Health Care Equipment and Supplies

TESTIMONY

The worker provided the following relevant sworn testimony at the oral hearing:

• He did not seek mental health assistance or treatment prior to October 13, 2011. The boating accident Dr. N. McCance, Psychologist, refers to in her report of the same date occurred when he was 17 years of age. While he was not happy about having broken his foot, and felt a bit down about it, it did not impair his mental health.
• He started his initial 12 sessions of psychotherapy in the summer of 2012 at a Clinic with a therapist named R. It appears that the electronic clinical notes that R kept were somehow lost or deleted from the clinic’s records.
• At the completion of his initial treatment phase, he felt a bit better about things. However, his symptoms never completely went away. He still had sleep difficulties, with occasional nightmares.
• He went back for a second round of 12 sessions in May 2016 because his symptoms were still present. Furthermore, because R’s reports were missing, the subsequent sessions allowed for the establishment of documentation confirming his mental health status.
• He again felt better at the end of the second round of treatment. However, just like the first time, his symptoms remained. He described himself currently as someone who left a part of himself back in the fire of August 2003. He is not the same person he was prior to that fire, but he has tried to keep going, accepting and dealing with the consequences of both injuries. He made it clear that he blamed his right wrist crush injury on his mental status following the fire of August 2003. He still finds it extremely difficult to think or talk about the fire.
• The PIs to his lungs and right wrist have affected his personal, social, and financial lives. He and his wife used to be remunerated while playing baseball. He had to stop that after the fire.
• He worked full-time with the employer until October 2006. He had, and still has, an excellent relationship with the employer. They accommodated him fully while he was with them. However, being around the farm, with all its inherent odours and airborne exposures, made it very difficult for him to continue in that environment. In October 2006, he secured a new job with a new employer, as an Agricultural Financial Verifier, working 36 hours per week. He continued to work part-time with the accident employer until 2009.
• In March 2014, he changed careers, selling farm equipment on a full-time basis for another company. The company closed and, in July 2016 he went to another company selling farming equipment on a full-time basis.
• He has used the Bandito masks the WSIB funded back in 2006 until today. They help him carry out his job duties without having to rely so much on the drugs in his inhaler. They have charcoal filters that allow him to visit farms and barns to sell the farm equipment. They have helped him tremendously over the years, both in carrying out his vocational activities, as well as some non-vocational activities that require air filtering.

ANALYSIS

I have carefully considered all of the available information, and relevant operational policies in reaching this decision. Having done so, I find that:

1. Entitlement to a psychotraumatic disability under claim B, and funding for two Bandito masks under claim A, is allowed; and,

2. Entitlement to a psychotraumatic disability under claim A is denied.

Operational policy 15-04-02 states, in part:

If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure.

It adds, in part:

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.

The records contained with the case files show that the worker’s mental health difficulties first manifested themselves in late May 2008 when he wrote a letter to the WSIB outlining the impact that both PIs had had on his life. In his correspondence, the worker summarized that the consequences of the work-related PIs had been difficult, humiliating, and, finally, depressing. The worker described, in detail, how the injuries had negatively affected him socially and financially, curtailing his ability to carry out leisurely activities that he had enjoyed prior to the accidents.

The worker wrote to the WSIB again on May 30, 2009. On this date, he asked that the mental impact of his injuries, including depression, anger, loss of satisfaction with life, persistent pain, and loss of use, be considered by the WSIB.

He followed up again on August 27, 2010, writing to the Chair of the WSIB. He highlighted that it had been difficult to write the letter because of the need to revisit the details of the workplace accident in order to describe them. He stated that his right wrist PI had been more difficult to cope with than the lung PI. The combination of the medications he took for both PIs turned him into a “zombie”. However, he continued to suffer from persistent pain and was unable to perform many activities he performed prior to the accident, including vocational, non-vocational, and leisurely ones. As a result, he suffered from daily depression, which overwhelmed the suffering from his physical impairments. He described the depression as “all-encompassing”, making it difficult for him to face the day and live his new life, impaired by his injuries. The death of the animals in the barn were, to him, as acutely felt as the death of co-workers and friends. His memories of the fire were dark, awful, and troubling.

On October 13, 2011, Dr. McCance, Psychologist, examined the worker. After doing so, she diagnosed him with PTSD, a chronic MDD, and a chronic pain disorder (CPD). Dr. McCance attributed these conditions to the workplace lung and right wrist PIs. The record shows that the worker attended treatment with R from August 2012 to March 2013.

Dr. K. Janusiak, Psychologist, examined the worker on May 6, 2016. The worker continued to struggle with ongoing symptoms, high levels of anxiety, diminished stress tolerance, and emotional distress. His mood vacillated between feeling down and sad to feeling irritable and agitated. He still suffered from intrusive recollections and accident-related flashbacks, avoiding thinking or talking about topics related to them. These conditions limited him in his vocational choices, and affected his relationships with his sons and wife. He did not obtain more than four hours of sleep per night. His wife confirmed that, at times, he was jarred awake by a nightmare, setting off an asthma attack, making it very difficult for him to return to sleep. The combination of a lack of sleep and breathing difficulties, resulted in very low energy levels, exacerbating his symptoms.

According to Dr. Janusiak’s report of August 18, 2017, as of that date, the worker had completed another 12 sessions of psychological treatment for ongoing PTSD, depression, and CPD symptoms. Dr. Janusiak opined that the worker had reached maximum psychological recovery, with a PI evident because. While better, he continued to have ongoing mental health symptoms.

These facts and circumstances lead me to find that entitlement to a psychotraumatic disability is in order under claim B and not claim A, for the following reasons:

• The worker testified under oath that he did not have or seek treatment for mental health difficulties prior to the DOIs.
• The worker’s mental health difficulties manifested themselves in May 2008, within five years of the DOIs under both claims. The worker’s self-reporting from 2008 to 2011 establishes a clear nexus between the manifestation of his symptoms in 2008 and Dr. McCance’s diagnoses in 2011. Therefore, the time limit criterion has been met in both claims.
• The mental health difficulties manifested themselves after the most recent injury; the right hand crush injury, and the resulting surgery for the same. Therefore, I find it reasonable and appropriate to consider entitlement to a psychotraumatic disability under claim B and not claim A.
• Dr. McCance’s findings on October 13, 2011, combined with the worker’s self-reporting prior to that date and his sworn testimony, confirm that his mental health difficulties had their roots in his extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury. The physical impact of his injuries have extended into the worker’s non-vocational life, disabling him from performing and participating in a number of activities that he regularly and naturally performed prior to the workplace accidents. The socioeconomic impact of the PIs have been well-documented and reiterated by the worker under oath.

As per the criteria under operational policy 15-04-02, the worker is entitled to a psychotraumatic disability under claim B for PTSD and depression. There is no entitlement to the same under claim A.

As there is a significant amount of mental health care documentation missing from the case file, the nature and duration of entitlement to benefits arising from this decision is left to the discretion of the Operating Area.

In relation to funding for Bandito face masks, operational policy 17-07-06, Health Care Equipment and Supplies, states, in part:

A worker who sustains an injury is entitled to such health care as may be necessary, appropriate, and sufficient as a result of his or her injury.

It adds, in part:

The WSIB may authorize the purchase of one or more health care products that fall into the category of health care equipment/supplies when an injured worker requires the health care product(s) as a result of a work-related injury/disease.

It also prescribes, in part:

Health care equipment/supplies are products used

• as a treatment or functional aid during the worker’s recovery, or
• to improve or maintain the worker’s independent living.

Health care equipment/supplies are products available off-the-shelf and do not require

• complex modification, customization, fitting, precise sizing or adjustment
• a pharmacist or health professional to oversee the provision and purchase of the product.

Health care equipment/supplies include but are not limited to

• crutches, tips
• back rests (e.g., Obus formes/seats)
• wrist supports/splints
• genito-urinary supplies
• toilet seats, commodes
• tub stools, grab bars
• walkers and accessories

A June 11, 2010 medical note from the worker’s family physician states:

Please be advised that the worker requires 2 Bandito face mask for protection of his breathing as he has underlying history of asthma.

The WSIB approved funding for the purchase of Bandito masks on January 11, 2006. The worker testified that he has used the masks he purchased in 2006 until the present. The use of the masks has improved his quality of life, and significantly contributed to his continued independent living, both at work and away from work.

This evidence allows me to find that Bandito face masks are necessary, appropriate, and sufficient health care equipment for the worker. Therefore, entitlement to funding for two of the masks is in order.

CONCLUSION

I find that:

1. Entitlement to a post-traumatic stress disorder and a major depressive under claim B, and funding for two Bandito masks under claim A, is allowed; and,

2. Entitlement to a psychotraumatic disability under claim A is denied.

There is a significant amount of mental health care documentation missing from the case file since 2011. As such, the nature and duration of entitlement to benefits arising from this decision is left to the discretion of the Operating Area.

The worker’s objections are, therefore, allowed in part.

DATED February 24, 2021.

C. da Cunha

Appeals Resolution Officer

Appeals Services Division