DECISION NUMBER: 20220139
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: M. RODRIGUES, APPEALS RESOLUTION OFFICER
DATED: NOVEMBER 10, 2022
ISSUES
The worker, through their representative, is objecting to the April 13, 2022 decision by the case manager that determined:
The concussion fully resolved by March 31, 2022 with no evidence of a permanent impairment.
Entitlement to loss of earnings (LOE) benefits from April 13, 2022 was denied.
BACKGROUND
On November 30, 2020, this courier slipped and fell while trying to enter a XXXX restaurant, striking their head on the concrete. Initial entitlement was accepted for health and LOE benefits for a concussion. The employer appealed the allowance decision. On April 26, 2022, the Appeals Resolution Officer upheld the initial entitlement decision.
The worker continued to experience symptoms as a result of the concussion and was referred to the WSIB neurology specialty clinic in June 2021. The worker was assessed at the specialty clinic from July to October 2021. They also attended a driver rehabilitation program from October 2021 to March 2022.
In a decision letter of April 13, 2022, the case manager determined the worker’s concussion fully resolved by March 31, 2022 with no evidence of a permanent impairment. The case manager found the worker was no longer participating in active treatment related to the concussion and the driving limitations were self-reported. Entitlement to LOE benefits from April 13, 2022 was denied. The decision was reconsidered on May 2 and 20, 2022, but the original decision was upheld.
The worker representative disagreed and objected to the decision of April 13, 2022.
AUTHORITY
Operational Policy Manual
Published
11-01-05 Determining Permanent Impairment
November 3, 2014
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker’s concussion fully resolved by March 31, 2022 with no evidence of a permanent impairment. I find entitlement to LOE benefits from April 13, 2022 is denied. The worker’s objection is denied.
Worker position
In the Intent to Object and Appeals Readiness Forms of April 21, 2022 and June 10, 2022 respectively, the worker representative objected to the case manager’s decision in regards to health care, LOE benefits and a permanent impairment. No other specific arguments were advanced by the representative.
In the Intent to Object Form of May 2, 2022, the worker stated their symptoms were triggered by sustained eye movements. This occurred while watching television, performing certain computer tasks and driving. They said upon completing the driver rehabilitation, the occupational therapist (OT) recommended a referral to a clinic that specialized in concussion cases. The worker stated the case manager saw no benefit to further treatment, but they disagreed with that position. They argued the case manager did not reference the discharge report from the driver rehabilitation therapy, but instead placed weight on the discharge report from the specialty clinic of October 5, 2021.
The worker also disagreed with the assertion they removed themselves from driver rehabilitation therapy and were unwilling to participate in additional treatment. They said their discharge from driver rehabilitation was the result of the OT and not themselves. They confirmed their interest and intention to participate in the clinic specializing in concussion cases. The worker opined they were no longer participating in therapy because the case manager did not acknowledge the referral made by the OT at driver rehabilitation therapy. They attached a functional abilities form (FAF) in support of their position.
Employer position
In the submission of October 26, 2022, the employer representative agreed with the case manager’s decision of April 13, 2022. They argued the clinical evidence substantiated the worker’s concussion fully resolved as of March 31, 2022 with no evidence of a permanent impairment. They opined the assessors in the October 5, 2021 specialty clinic report concluded the only trigger of concussion symptoms was driving. No formal recommendation was made for active therapy, aside from that of a work-hardening type program for driving.
The worker representative noted the latest driver rehabilitation report of March 2022 confirmed there were no concerns in regards to the worker’s driving. They opined the specialty clinic reports of September 23, 2021 and October 5, 2021 carry more weight than the March 2022 driver rehabilitation report. They contend if further treatment was required, the assessors would have recommended it and did not do so as the worker did not exhibit further symptoms.
The representative stated the FAF of April 28, 2022 submitted by the worker signaled a sudden change in functional status as there was no further treatment accepted. They referenced policy 11-01-05 (Determining Permanent Impairment) in support of their position that the worker had fully recovered from their concussion. They opined there was no evidence of a permanent impairment and entitlement to LOE benefits should remain denied.
Policy
In order to determine if a worker has fully recovered from his/her work-related injury, the information needs to show whether an ongoing work-related impairment exists. This is detailed in policy 11-01-05 (Determining Permanent Impairment). The policy states an impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.
Recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery (MMR) is reached. MMR means that a plateau in recovery has been reached and no further significant improvement is expected. To determine if MMR is reached, decision-makers consider whether recent clinical evidence indicates any change in the work-related injury, the worker is receiving or will receive treatment that is likely to improve the work-related injury, or the worker is receiving treatment or using medication to maintain the current level of recovery. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.
In order to determine if a worker is entitled to LOE benefits as a result of a work-related injury/disease, the payment of LOE benefits beginning when the loss of earnings begins. This is outlined in policy 18-03- 02 (Payment and Reviewing LOE Benefits (Prior to Final Review)). The policy states benefits continue until the earliest of
the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.
Findings
I do not find ongoing entitlement for the worker’s head injury is in order. I find the available clinical evidence supports the worker’s concussion fully resolved by March 31, 2022 with no evidence of a permanent impairment. I found the September 23, 2021 and October 5, 2021 specialty clinic reports, including the March 11, 2022 driver rehabilitation progress report, persuasive in reaching my conclusion. As such, I find the worker is not entitled to LOE benefits from April 13, 2022. My reasons for why are outlined below.
The worker was assessed at the neurology specialty clinic from June 22, 2021 to October 5, 2021. In the specialty clinic report of September 23, 2021, the assessors recommended the worker be discharged from treatment. While the worker was having difficulty increasing their driving duration, they managed to divide and alternate tasks without difficulty. The worker reported some level of increased head pressure and dizziness during the treatment sessions, but the symptoms returned to baseline quickly. They stated their symptoms worsened when driving, but that other activities no longer worsened it.
The assessors noted the worker progressed well in treatment and had resumed several higher-level cognitive activities. The worker indicated their symptoms were not worse with day-to-day activities and completed them without difficulty. The assessors also noted the worker reported being unable to tolerate driving for the duration needed to meet job demands due to varying levels of continued symptom burden, such as dizziness and head pressure.
I find the recommendations made by the assessors in the above specialty clinic report to be compelling. The assessors recommended the worker return to work (RTW) to modified duties on a gradual basis and attend a work-hardening type program for driving. The assessors opined the restrictions should be re- evaluated after the completion of a driving program.
I interpreted the September 23, 2021 specialty clinic report to mean the worker was improving from both a physical and cognitive perspective. In my view, the main barrier at that time was the worker’s driving limitations. Physically, the worker had full abilities for walking, standing, sitting, stair climbing, pushing, pulling and bending or twisting repetitive movements. They were able to lift and carry at a medium level from 10 to 20-kg, with no ladder climbing, since it was not a job requirement.
Cognitively, the assessors stated the worker had full abilities for attention to detail and concentration, problem solving, planning and organizing, flexibility and adaptability, persistence and stamina, ability to work independently and judgment and responsibility. They were limited in multi-tasking and working quickly or under time pressure. Driving was a potential symptom trigger for the worker and was a significant part of their workday. The worker had a limited tolerance for driving up to one hour without a break before their symptoms were no longer tolerable. The worker reported needing a break of a few hours between drives.
In the October 5, 2021 specialty clinic report, the worker reported they avoided exposure to highly stimulating settings, such as busy stores. They drove up to forty-five to sixty minutes and then felt unsafe. The worker stated their symptoms lasted up to sixty minutes. They attempted to simulate a workday on one occasion, but by the third stop, indicated their symptoms became intolerable. Of note, the worker was independent in their activities of daily living. Upon examination, their cervical range of motion was normal. Hypertonicity, temporomandibular, vision, functional activities, Romberg test, single leg stance and gait were all within normal limits.
I find it significant the assessors opined a full functional recovery was anticipated in three to four months. The assessors stated that overall, the worker’s recovery was excellent. However, the assessors also noted the worker was limited in driving, but also anticipated that would improve with time, including ongoing improvement in functional tolerances. The worker reported they would be assessed in the driver rehabilitation program and the assessors noted this was outside the scope of the specialty clinic. The assessors deferred the driving recommendations to the family doctor based on the outcome of the driver rehabilitation program.
I interpreted the October 2021 specialty clinic report to mean further improvement had taken place, from both a physical and cognitive standpoint, in regards to the worker’s head injury. I noted that physically, the RTW recommendations were the same as those listed in the September 23, 2021 specialty clinic report. In regards to cognitive restrictions, the worker also had full abilities for everything with the exception of multi-tasking. The assessors opined the worker would benefit from self-pacing and that driving was a potential trigger for symptoms. They recommended driving limitations of up to an hour with breaks. The restrictions were temporary, pending the outcome of the driving assessment.
As such, I find it significant the assessors, in both the September and October 2021 specialty clinic reports, did not recommend any further treatment in regards to the head injury. In my view, the assessors indicated it was appropriate for the worker to be discharged, as they had demonstrated the functional and cognitive skills to RTW.
On October 14, 2021, the worker was assessed at the driver rehabilitation program. In the report of October 24, 2021, the OT recommended ten driving sessions. The first four sessions would focus on increasing the driving to four hours behind the wheel, adding an hour to each session. For the next six sessions, the goal was to have the worker gradually increase their tolerance to drive up to eight hours of sustained driving with breaks and stops to simulate their job demands.
In the March 11, 2022 driver rehabilitation report, the worker increased their drive time to two hours of sustained driving. They reported symptoms after an hour-and-a-half of driving. The worker indicated the idea of them driving for eight hours per day seemed difficult. Of note, the worker drove their spouse to work on daily basis and for personal activities. They reported being limited by feelings of fatigue, visual disturbances and head pressure. The worker stated they drove to Cambridge in January, but had to force themselves to get through it and also took a twenty-minute break. They felt unwell the following day and did not have much energy.
The OT indicated the issue was that the worker was capable of driving and was an excellent driver. The worker was able to demonstrate their driving skills, but their endurance continued to limit their success. The worker told the OT they completed their therapy sessions in regards to concussion management, but thought they may be benefit from additional time spent with more vestibular and vision therapy to address the symptoms elicited while driving. The OT noted the worker still felt the effects even after a fifteen- minute break depending on the severity of symptoms, stating that had not changed since the start of the program.
Of note, in the driver rehabilitation report, the worker stated their symptoms were related to eye movement. This involved moving their eyes up and down and side-to-side while driving to see their driving environment. The worker reported that after finishing the sessions with their driver rehabilitation specialist, they felt mentally drained.
In that report, I noted the OT stated the worker did not made any gains during this treatment plan. The OT opined the worker would benefit from a weekly appointment schedule, driving three hours, then four hours and then five hours on two occasions, for four weeks behind the wheel. The OT stated the worker felt they needed more therapeutic concussion management. The OT thought that while participating in weekly driving sessions, the worker may benefit from specialized therapy at a clinic that targeted concussion symptoms such as motion sensitivity and visual changes.
On March 31, 2022, the case manager and RTW specialist (RTWS) spoke with the OT. The OT stated that, tactically and strategically, the worker was a great driver. The OT expressed concerns in regards to the worker’s effort in trying to progress their hours, noting the worker was self-limiting and choosing not to succeed. The OT noted the worker said they did not see themselves being a driver for long occupationally and was thinking of finding other work.
The OT stated the worker was unlikely to succeed or progress any further. A recommendation was made for the worker attend treatment at a clinic that specialized in mild traumatic brain injuries, but the RTWS confirmed the worker had already done so. The case manager and RTWS recommended that treatment for the driver rehabilitation program be closed, given the worker indicated they did not benefit from the program and their lack of progress. The case manager stated they were looking at a gradual RTW to help the worker transition back to their job.
The worker placed weight on the OT’s suggestion that specialized therapy at a clinic, which targeted concussion symptoms, may be beneficial. However, I did not come to the same conclusion. As I previously indicated, the worker was assessed and treated at the specialty clinic for about three-and-a- half months in 2021.
I afforded weight to the September 23, 2021 and October 5, 2021 specialty clinic reports. With the exception of temporary restrictions for multi-tasking, lifting and carrying from both a cognitive and physical perspective in October 2021 report, the worker had no additional limitations. Of note, the worker’s vision and functional activities were within normal limits. I find it significant the assessors at the specialty clinic anticipated the worker would improve over time and that a full functional recovery would occur within three to four months. As such, I find the clinical evidence supports that while the worker had some driving limitations, their physical and cognitive presentation continued to improve, as evidenced by the specialty clinic reports.
In regards to the driver rehabilitation program, the worker attended sessions from October 2021 to March 2022. While the OT suggested specialized therapy at a clinic may be helpful, I noted the worker felt they needed additional treatment to help manage their concussion. The worker confirmed their interest and intention to participate in the clinic specializing in concussion cases. However, I do not find that additional treatment is warranted. I find it significant the OT opined the worker likely needed more time behind wheel to increase their driving tolerance. In my view, the worker has attended extensive treatment at the neurology specialty clinic, where the assessors indicated the worker’s driving limitations were a barrier at that time.
Furthermore, I am placing weight on the OT’s opinion, in regards to the worker’s basic vehicle control skills and tactical behaviours and decisions in traffic, in the March 11, 2022 report. The OT had no concerns from an operational standpoint. They stated the worker was an experienced driver and knew what to do. Physically, the OT stated there were no issues related to the worker’s basic control skills. The OT also noted that after the worker completed two hours in the sedan at this stage of the process, they were observed to be able to predictably manage decision-making and use effective judgment and awareness.
On March 31, 2022, the case manager spoke with the worker and recommended a gradual RTW to help them transition back to work. The case manager informed the worker they would regain their tolerance for driving by getting behind the wheel and completing their regular duties. This is what the worker was doing as part of the driver rehabilitation.
Furthermore, I find the information given by the OT to the case manager and RTWS on March 31, 2022 to be compelling. The OT confirmed that tactically and strategically, the worker was a great driver. They expressed concerns about the worker’s effort in trying to progress/increase hours, noting the worker was self-limiting and choosing not to succeed.
On April 6, 2022, the workplace parties and RTWS met virtually to discuss RTW opportunities. The RTWS concluded the worker’s regular duties were suitable, given the case manager had accepted there were no restrictions for the head injury as it had fully resolved. On May 4, 2022, the employer representative emailed the RTWS, stating the worker’s regular duties were available. However, the worker declined the offer, indicating they were unable to drive based on the requirements of their regular duties.
The worker submitted a FAF dated April 28, 2022, in which the doctor indicated they were unable to RTW in any capacity. I noted no rationale was given to support why the worker was totally disabled at that time. In my view, the issue here is not the worker’s level of impairment, but whether their concussion fully resolved and if a permanent impairment is evident.
Noting policy 11-01-05 (Determining Permanent Impairment), I find the available clinical evidence supports the worker’s head injury fully resolved by March 31, 2022 with no evidence of a permanent impairment. I find it significant that no further treatment was recommended for the head injury after the worker was discharged from the neurology specialty clinic in the reports of September 23, 2021 and October 5, 2021.
I noted the recommendation from the October 5, 2021 specialty clinic report was to defer the driving recommendations to the family doctor based on the outcome of the driver rehabilitation program. Of note, I find it significant the OT recommendation in the driver rehabilitation report of March 11, 2022 was the worker likely needed more time behind wheel to increase their driving tolerance. The OT opined they had no concerns from an operational standpoint and that physically, there were no issues related to the worker’s basic control skills. The worker was also observed to be able to predictably manage decision- making and use effective judgment and awareness.
As such, I do not find the worker representative provided any available evidence to persuade me that a permanent impairment arose out of the worker’s head injury. I am satisfied no permanent restrictions were identified for the worker’s head injury. Thus, I find the concussion fully resolved by March 31, 2022 with no evidence of a permanent impairment.
I find the worker is not entitled to LOE benefits from April 13, 2022. Policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) states, in part, that a worker’s entitlement to LOE benefits ends when the worker is no longer impaired as a result of the work-related injury. I previously found the worker’s concussion fully resolved with no evidence of a permanent impairment on March 31, 2022. I noted the case manager informed the worker, in writing, on April 13, 2022 that entitlement to LOE benefits was no longer in order. As such, I find the worker is not entitled to ongoing LOE benefits from April 13, 2022. I find the worker’s wage loss after April 13, 2022 is not a result of the work-related head injury in this claim. Thus, as I found the worker’s head injury fully resolved, I find entitlement to LOE benefits from April 13, 2022 is denied.
CONCLUSION
As outlined in the above decision, I conclude:
The worker’s concussion fully resolved by March 31, 2022 with no evidence of a permanent impairment.
Entitlement to LOE benefits from April 13, 2022 is denied.
The worker’s objection is denied.
DATED November 10, 2022
Ms. M. Rodrigues
Appeals Resolution Officer Appeals Services Division