Worker v. Employer, 2022 CanLII 132544

APPEALS RESOLUTION OFFICER DECISION

Decision Number: 20230015

Objecting Party: WORKER Represented by: WORKER REPRESENTATIVE

Respondent: EMPLOYER Represented by: SELF

Hearing: HEARING IN WRITING Heard by: STEPHEN CRISOSTOMO, Appeals Resolution Officer

Dated: November 9, 2022

ISSUE

The worker objects to the Case Manager’s decision dated June 24, 2020, which determined they recovered from their work-related conditions by June 5, 2020 with no ongoing or permanent impairment.

BACKGROUND

On December 13, 2018, the worker, a Pipefitter, was harnessed 25 feet above the ground and was removing a coupling from a large pipe when 80 lbs of compressed air escaped, causing the pipe to explode and the worker being hit with compressed air and steel debris in the face and ears, causing them to be thrown backwards. Entitlement in the claim was initially reviewed and allowed for face, ears and eye soft tissue injuries. Entitlement was subsequently extended to include the worker’s diagnosed bilateral tympanic membrane (eardrum) injuries and a corneal (eye) abrasion.

Following further assessments, entitlement in the claim was extended to include psychotraumatic disability for the worker’s diagnosed posttraumatic stress disorder (PTSD) and Major Depression, and their diagnosed concussion related posttraumatic headaches.

In November of 2019, the worker resumed performing their pre-injury job duties.

In June of 2020, the Case Manager reviewed the file and determined the worker’s work-related conditions resolved by June 5, 2020. This decision was communicated on June 24, 2020.

The worker objected to the June 24, 2020 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker Representative’s Position

The worker’s representative submits:

• The medical evidence supports the worker has an ongoing impairment related to the December 13, 2018 workplace accident.
• Ongoing entitlement should be recognized for the worker’s hearing impairment, tinnitus and PTSD, including recognition of a permanent impairment for the conditions.

Employer’s Position

The employer submits:

• They do not dispute the worker has an ongoing and permanent high frequency hearing loss that resulted from the December 13, 2018 work accident; however, the worker had pre-existing complaints in April of 2016 related to (some) ringing in their ears/tinnitus.
• The worker had pre-existing psychological issues (anxiety disorder).
• There is no direct evidence that the worker’s symptoms are caused by their PTSD as opposed to their pre-existing psychological condition.

AUTHORITY

Operational Policy Manual	Published
11-01-05 Determining Permanent Impairment	November 3, 2014
18-05-03 Determining the Degree of Permanent Impairment	November 3, 2014

ANALYSIS

I have carefully considered all of the available information and relevant operational policies in reaching this decision.

Operational Policy 11-01-05 states in part:

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 Maximum Medical Recovery (MMR) is reached.

MMR means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.

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.

Permanent impairment means impairment that continues to exist after the worker reaches MMR.

Operational Policy 18-05-03 states in part:

Workers are entitled to compensation for their non-economic loss if a work-related injury/disease results in a permanent impairment.

1. Hearing Loss and Tinnitus

I find the worker is entitled to a NEL determination for their bilateral high frequency sensorineural hearing loss and tinnitus. The reasons for my decision follow.

A review of the file reveals:

• The worker was assessed by Dr. McTavish on April 12, 2016, with a great deal of symptoms including ear pain and ringing in the ears (tinnitus) that occurred sometimes. Based on the visit along with a subsequent assessment, the worker was diagnosed with an Anxiety Disorder.
• Dr. Vescan, Otolaryngologist, saw the worker on May 9, 2019 and diagnosed them with occupational bilateral high frequency sensorineural hearing loss and tinnitus (my emphasis added). Based on the assessment, Dr. Vescan opined it was highly unlikely that the worker would regain any of their hearing in the mid to upper frequency and that they will likely suffer from bilateral tinnitus for many years.
• The Neurology Speciality Program’s June 11, 2020 report completed by Dr. Naeem noted that the worker suffers from bilateral hearing loss and tinnitus on a daily (constant) basis, which has remained the same over the assessment period. The worker was trying to learn to continue with the symptoms.
• Dr. McTavish’s reports dated August 25, 2020 and April 28, 2022 indicate the worker continued to suffer from high frequency hearing loss and tinnitus.

While I acknowledge the employer’s submission related to the worker’s pre-existing reporting of ringing in the ears in 2016, a review of the information in the file fails to reveal the worker’s complaints were ongoing and symptomatic at the time of the December 13, 2018 work accident. In addition, I recognize the ringing in the worker’s ears in 2016 was not confirmed by a specialist with facilities for testing tinnitus. As such, I find that although the worker may have had some pre-injury complaints of ringing in the ears in 2016, it appears that it was isolated to periods in 2016 and I am not satisfied that the ringing in the worker’s ears in 2016 was a pre-injury symptomatic condition.

In assessing the medical evidence before me, I place significant weight on Dr. Vescan’s medical opinion of May 2019, for the following reasons:

• Dr. Vescan is an Otolaryngologist and specializes in ear conditions;
• He assessed the worker in May of 2019 with regards to their complaints;
• He reviewed all relevant medical records including the worker’s prior hearing tests;
• He physically examined the worker prior to providing his opinion;
• As a doctor and Otolaryngologist he is qualified to diagnosis the worker’s hearing condition and provide an opinion on causation of the worker’s symptoms/conditions; and,
• There is no specific medical evidence and/or opinion in the file from a health care professional who is trained to evaluate and diagnosis ear/hearing conditions that refutes his opinion that the worker’s hearing loss and tinnitus was unlikely to improve beyond May 2019.

In addition to the above, I note both Dr. Naeem and Dr. McTavish confirm the worker continued to suffer from bilateral hearing loss and tinnitus beyond May of 2019.

As such, I accept it is highly unlikely that the worker will regain any of their hearing in the mid to upper frequency and that they will likely suffer from ongoing bilateral tinnitus.

Based on my assessment of the evidence, I find the worker reached MMR for their bilateral high frequency sensorineural hearing loss and tinnitus on May 9, 2019, the date of Dr. Vescan’s assessment, as I am satisfied the worker’s conditions plateaued at that time and there is no evidence of a further significant improvement in the work-related conditions beyond May 9, 2019. Based on the worker’s ongoing symptoms as noted in the medical evidence mentioned above, I am also satisfied the worker’s work-related bilateral high frequency sensorineural hearing loss and tinnitus continued to exist after they reached MMR. As such, I find the worker bilateral high frequency sensorineural hearing loss and tinnitus conditions are permanent and that the conditions resulted in a permanent impairment.

As a result, I find the worker is entitled to a NEL determination to rate the permanent residual impairments that results from their bilateral high frequency sensorineural hearing loss and tinnitus.

2. PTSD

I find the worker is entitled to a NEL determination for their PTSD. The reasons for my decision follow.

A review of the file reveals:

• Prior to the December 13, 2018 accident, the worker was experiencing psychological symptoms and was diagnosed with an Anxiety Disorder.
• Entitlement in the claim was allowed for PTSD.
• Dr. Harris’, Psychologist, report dated October 17, 2019 noted the worker’s PTSD was improving; however, the worker continued to experience symptoms related to their PTSD. It was opined that no additional treatment was required, as the worker felt they achieved all they could through psychotherapy but added they were not 100%.
• The Neurology Speciality Program’s June 11, 2020 report completed by Dr. Naeem noted the worker continued to experience PTSD symptoms.
• Dr. McTavish’s reports dated August 25, 2020 and April 28, 2022 indicate the worker continued have symptoms of PTSD.

While I acknowledge the employer’s submission related to the worker’s pre-existing Anxiety Disorder, I note entitlement in the claim has been accepted for PTSD and that Dr. Harris, Dr. Naeem and Dr. McTavish related the worker’s psychological symptoms to their work-related PTSD and not their pre-existing Anxiety Disorder. As such, I accept the worker’s was experiencing ongoing symptoms related to their PTSD beyond June of 2020.

In assessing the medical evidence contained in the file including the medical reports from Dr. Harris, Dr. Naeem and Dr. McTavish, I find the evidence fails to show the worker’s psychotraumatic disability with respect to their PTSD fully resolved or that the worker was ever symptom free. Rather, I find the evidence contained in the file shows that despite receiving extensive treatment up to October 2019, which included cognitive behaviour therapy and medication trials, the worker still had ongoing symptoms related to their PTSD and that they continued to require the use of Amitriptyline following their discharge from treatment.

Based on my review, I find the worker reached MMR for their work-related PTSD on October 17, 2019, the date the worker was discharged from psychological treatment. I base my finding on the medical evidence failing to reveal that the worker had a further significant improvement in their work-related PTSD beyond October 17, 2019. Based on the worker’s ongoing PTSD symptoms beyond October 17, 2019, as noted by Dr. Harris, Dr. Naeem and Dr. McTavish, I am satisfied the worker’s work-related PTSD continues to exist after they reached MMR. As such, I find the worker’s psychotraumatic disability related to their PTSD is permanent and that the work-related PTSD has resulted in a permanent impairment.

As a result, I find the worker is entitled to a NEL determination to rate the permanent residual impairment that results from their PTSD.

CONCLUSION

Based on the evidence outlined in this decision, I conclude:

1. The worker reached maximum medical recovery on May 9, 2019 for their work-related bilateral high frequency sensorineural hearing loss and tinnitus, and that the worker has a permanent impairment related to the conditions.

The worker is entitled to a Non-economic Loss determination to determine the residual impairment that results from their permanent bilateral high frequency sensorineural hearing loss and tinnitus.

2. The worker reached maximum medical recovery on October 17, 2019 for their work-related PTSD and the worker has a permanent psychotraumatic disability related to their PTSD.

The worker is entitled to a Non-economic Loss determination to determine the residual impairment that results from their permanent work-related PTSD.

The worker’s objection is allowed.

DATED November 9, 2022

S. Crisostomo Appeals Resolution Officer Appeals Services Division