APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230027
OBJECTING PARTY:
worker
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
TELECONFERENCE – November 18, 2022 – 1:00 PM
HEARD by:
M. Haughton, appeals resolution officer
NOVEMBER 30, 2022
ISSUES
The worker is objecting to the following decisions:
The Case Manager’s (CM) decision dated May 5, 2015, which denied entitlement to a mental stress injury. The CM reconsidered and upheld this decision on May 12, 2015 and April 16, 2018.
The CM’s decision dated July 11, 2016, which denied initial entitlement to cervical and bilateral shoulder strains, a seizure disorder, obesity, diabetic neuropathy, headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss, poor concentration, depression and anxiety. The CM determined the worker had fully recovered from the accepted soft tissue injuries by March 25, 2015. The CM also denied entitlement to loss of earnings benefits beyond February 4, 2015. The CM reconsidered and upheld this decision on April 10, 2018.
BACKGROUND
On January 9, 2015, this records coordinator slipped and fell on an escalator while returning from a coffee break. The escalator was wet and slippery due to snowy conditions outside. The worker reported the incident to the employer and sought medical attention on January 9, 2015. Initial entitlement was accepted for contusions to the neck and upper and lower back. The worker received loss of earnings benefits for January 20, 2015, January 21, 2015, January 26, 2015 and February 4, 2015 as they were unable to sustain their regular work duties and suitable modified work was not available to them.
The worker reported they were depressed due to their pain and inability to perform their activities of daily living without pain and a psychological diagnosis was provided. On May 5, 2015, the CM denied entitlement to traumatic mental stress. The CM determined the worker had not met the policy criteria for traumatic mental stress. On May 12, 2015, the CM reconsidered and upheld the May 5, 2015 decision. The CM noted the worker’s depression pre-dated the January 9, 2015 work-related injury. The CM
completed a further reconsideration on April 16, 2018. The CM noted there was no information to support the January 9, 2015 slip and fall was traumatic in nature.
On January 11, 2016, the CM confirmed entitlement had been accepted for contusions to the neck and upper and lower back. The CM denied entitlement to cervical and bilateral shoulder strains, a seizure disorder, obesity, diabetic neuropathy, headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss, poor concentration, depression and anxiety. The CM determined the worker reached maximum medical recovery for the accepted soft tissue injuries on March 25, 2015, with no ongoing work-related impairment. The CM also denied entitlement to loss of earnings benefits subsequent to February 4, 2015. The CM reconsidered and upheld this decision on April 10, 2018.
The worker’s objection to the CM’s decisions dated May 5, 2015 and July 11, 2016 and the subsequent reconsideration of those decisions, form the basis for this appeal.
AUTHORITY
Operational Policy Manual Published
Policy 11-01-01 Adjudicative Process November 3, 2008
Policy 11-01-05 Determining Permanent Impairment November 3, 2014
Policy 11-02-02 Lost Time Claims January 2, 2015
Policy 15-03-02 Traumatic Mental Stress January 2, 2018
Policy 15-04-02 Psychotraumatic Disability September 7, 2018
Policy 15-05-01 Resulting from Work-Related Disability/Impairment February 15, 2013
ANALYSIS
I have carefully considered all of the available information, including the worker’s testimony, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker does not have initial entitlement to cervical and bilateral shoulder strains, a head injury, obesity, diabetic neuropathy, headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss and poor concentration. I find the worker does not have initial entitlement or secondary entitlement to a seizure disorder. I find the worker reached maximum medical recovery for the accepted neck, upper back and lower back contusions on March 25, 2015, with no ongoing work-related impairment. Further, I find the worker does not have entitlement to loss of earnings benefits for sporadic lost time between February 11, 2015 and March 6, 2015. Additionally, I find the worker does not have entitlement under the Traumatic Mental Stress policy or under the Psychotraumatic Disability policy. My findings and analysis are provided below.
On the Appeal Readiness Form dated May 29, 2022, it was noted that the worker continued to require medication, physiotherapy and pain therapies. An undated submission from the worker noted that they were coming up an escalator and the steps were wet and slippery and the railing was not stable. The worker stated they fell and scraped their back causing large bruises. The worker stated that building security heard them fall and came to assist. The worker indicated they went upstairs and immediately reported the incident to their supervisor. The worker stated their son came to pick them up and took them to their doctor that afternoon, where they were examined and a claim for benefits through the Workplace Safety and Insurance Board (WSIB) was initiated. The worker indicated they were referred for physiotherapy and prescribed medication for their severe pain. The worker reported they sustained
injuries to their head, neck, back, shoulders and knees. The worker stated the employer advised they could take time off work because of their injuries and they lost time from work on January 20, 2015, January 21, 2015, January 26, 2015, February 4, 2015, February 11, 2015, February 17, 2015,
February 18, 2015, February 19, 2015, February 20, 2015, February 25, 2015, February 26, 2015,
February 27, 2015, March 4, 2015 and March 6, 2015. The worker indicated their family doctor recommended a neck collar and a wrist support for their injuries along with a cortisone injection. The worker stated their injuries severely impacted their daily routine and activities of daily living, which caused depression and anxiety. The worker stated they felt pressure in their head, causing dizziness and drowsiness and a psychiatrist had prescribed medication for these conditions.
The employer did not include a submission with the Respondent Form dated September 9, 2022. During the oral hearing, the employer representative submitted the worker’s ongoing neck, shoulder and back concerns did not result from the work-related injury and were attributable to age-related changes. The representative noted there was no medical information to support the worker lost time from work due to the work-related injury. The representative also stated the worker’s psychological condition did not result from the minor work-related injury. The representative submitted the May 5, 2015 and July 11, 2016 decisions should be upheld.
The worker testified they were going up an escalator from the concourse to the ground floor at 10:35am. The worker stated the escalator was not stable, there was a mechanical issue and the stairs were wet. The worker indicated they fell on the escalator stairs and scratched their upper and lower back. The worker reported that a security guard came to assist them and they informed the employer and property management of the incident on the escalator. The worker stated their son came to pick them up at 1:35pm and took them to the doctor. The worker reported they sustained injuries to their head, bilateral shoulders, back and bilateral knees. The worker also indicated their physician recommended a neck collar and a cortisone injection for their injuries. The worker stated their injuries impacted their ability to perform their activities of daily living and they experienced depression, dizziness and drowsiness. The worker denied any prior psychological concerns and indicated their psychological condition developed immediately following the work-related injury
The worker indicated their employer advised they could stay home due to their injuries. The worker reported the employer was unable to provide modified or accommodated work and they had difficulty returning to work due to their ongoing symptoms. The worker stated they lost time from work on January 20, 2015, January 21, 2015, January 26, 2015, February 4, 2015, February 11, 2015,
February 17, 2015, February 18, 2015, February 19, 2015, February 20, 2015, February 25, 2015,
February 26, 2015, February 27, 2015, March 4, 2015 and March 6, 2015, due to the work-related injury. The worker indicated they used sick leave, flex time, retirement leave and paid time off for religious holidays so that they could be compensated for the lost time on these dates.
The worker noted they had been subjected to harassment at work and they felt they were forced to retire. The worker stated they wanted to work until June 30, 2015, but the employer indicated they had to retire in March 2015. The worker testified they had difficulties with the employer, which the worker attributed to their participation in union activities. The worker stated the employer was “always after me”. The worker reported they had filed a grievance under the workplace discrimination and harassment policy; however, the outcome was not in their favour.
The worker reported continued issues with their neck, shoulders and back since the work-related injury. The worker stated they had received continued treatment for these injuries, including physiotherapy, treatment through a pain program and injections. The worker reported they had no prior issues with these areas and they were not receiving treatment prior to the work-related injury. The worker stated
they were unable to walk very far due to back pain. The worker indicated the work-related injury had also caused a seizure disorder. The worker stated they had been paying out of pocket for all of their medications and treatment. The worker referenced medical reports on the claim file to support their ongoing issues were the result of the work-related injury. The worker stated they were totally disabled as a result of their injuries and they required assistance from their son to complete their activities of daily living, cook meals, complete household tasks and drive them to appointments. The worker indicated they had been suffering for seven (7) years and they were entitled to compensation.
The co-worker who was with the worker when the incident occurred provided their version of the event in an email dated January 12, 2015. The co-worker indicated they were on the escalator with the worker. They were on the right side, while the worker was on the left. The escalator step the worker was standing on was wet and the worker was holding on to the rail. The co-worker stated they saw the worker’s feet start to slide back and then right off the step and the worker stated to tumble down. The co- worker stated they tried to move forward to catch the worker; however, they were only able to grab the worker’s shoulder and head to prevent the worker from hitting their head on the metal railing. The worker slid down a few steps on their back.
X-rays of the lumbar spine and sacroiliac joints completed on July 8, 2014, showed evidence of advanced degenerative changes with multilevel disc degeneration.
X-rays of the left knee and right wrist were completed on August 28, 2014. The x-rays of the right wrist showed no evidence of fracture or acute bony injury. The x-rays of the left knee showed evidence of osteophytes in all three compartments and evidence of arthritic change.
Following the work-related incident, the worker sought medical attention on January 9, 2015 and a Health Professional’s Report (Form 8) was completed. The worker was diagnosed with a back contusion and anxiety. The physician identified obesity, work-related stress and pre-existing back pain as pre-existing conditions that may impact the worker’s recovery. The worker was prescribed Robaxisal for pain and they were advised to rest and use ice to manage their symptoms. Functional precautions were provided and the worker was noted to be able to return to modified work on January 12, 2015.
A medical report dated January 17, 2015, indicated the worker suffered from depression and anxiety. The worker was noted to be prescribed medication for this condition and they would be seeing their psychiatrist soon. The worker was noted to feel that a great deal of their anxiety and depression originated at their workplace. The physician indicated the worker had recently slipped on a wet escalator and had sustained injuries necessitating modified work due to pain. The worker was referred for physiotherapy, chiropractic treatment and massage therapy.
A Musculoskeletal Program of Care (MSK POC) Initial Assessment Report dated February 4, 2015, noted the worker reported they were on an escalator when they lost their balance, fell backwards and hit their head, neck and lower back. The worker was noted to have pain, reduced range of motion, increased muscle spasm, stiffness and an aggravation of their chronic back pain. The worker was noted to have returned to work; however, they were taking sick leave when they had pain.
A report from a psychiatrist dated February 9, 2015, noted the worker had pain in their right wrist. The worker’s family doctor and their pain doctor had been recommending modified work for two (2) years; however, the workplace had not provided modified work. On January 9, 2015, the worker slipped and fell on a wet escalator. The worker reported injuries to their head, neck, bilateral shoulders, lower back and left wrist. The worker reported that due to the head injury, they felt dizzy all the time and they felt like they might fall while walking. The worker was noted to have applied for early retirement. The worker did not
agree with the retirement date provided by the employer as it was not consistent with the date provided to colleagues and they felt it was a case of discrimination. The worker stated that because of this they had “become depressed with a lot of anxiety and a lot of stress”. The worker reported they were very active in the union, which was why the employer was purposely harassing them. The worker indicated he had worked in the government for 41 year and had not received a promotion. The worker reported that “white people came and went and they got regular promotions, incentives and training”. The worker stated they had not been promoted since they began with the employer in 1996. The worker indicated they had filed a complaint under the workforce discrimination and harassment prevention policy. The worker reported they had a lot of depression, they did not sleep at night, their appetite was poor and they fell asleep while sitting during the day. The worker reported they had pain in their neck and the pain impacted their sleep. The worker was noted to have a lot of stress and they had no energy and felt tired all the time. The worker reported they were irritable and easily upset and angry. The worker also reported their concentration and memory was poor. The worker was noted to have a history of hypertension, diabetes and obesity.
The psychiatrist noted the worker was previously seen until 2006 and they were diagnosed with depression. The worker was noted to have been prescribed Cipralex by their family physician for the last year since their problems with work. The worker was diagnosed with major depression with anxiety. An Axis III diagnosis of hypertension and diabetes and an Axis IV diagnosis of moderate harassment at work were also provided. The worker was advised to continue with Cipralex and they were prescribed Wellbutrin XL.
An MRI of the brain completed on February 25, 2015 showed evidence of early age-related microangiopathic changes within the white matter bilaterally. There was no evidence of previous trauma.
A report from a physiotherapist dated March 5, 2015, noted the worker had received physiotherapy twice per week since February 4, 2015; however, they were previously seen under their policy with a benefit insurance provider.
A medical report dated March 22, 2015, noted the worker had suffered injuries to their neck, shoulders and lower back due to a slip and fall on an escalator on January 9, 2015. The worker was noted to require continued rehabilitation through physiotherapy, chiropractic treatment and massage therapy. The worker was noted to have moderately severe pain and they were unable to take nonsteroidal anti- inflammatory drugs and other potent analgesics due to a medical condition.
An MSK POC Care and Outcomes Summary dated March 25, 2015, noted the worker’s pre-existing chronic back and shoulder pain may be in delaying their recovery. The worker was noted to have been receiving treatment through private insurance and they attended another pain management clinic. The worker reported a 20 per cent improvement in their symptoms and they complained of continued pain in their neck, shoulders and back. The worker was noted to be retiring on March 31, 2015. At the time of discharge, the worker was noted to be able to perform their regular work duties and hours.
A medical note from the worker’s psychiatrist dated April 23, 2015, indicated the worker was under their care due to stress, anxiety and severe depression and they were not in a position to prepare for their workplace discrimination and harassment policy (WDHP) case.
A medical note from a physician at the Toronto Poly Clinic dated May 6, 2015, indicated the worker was a patient under their care for a number of years and on a regular basis since the January 9, 2015 accident.
A medical report dated May 7, 2015, noted the worker had neck, upper back and lower back strains with pain and decreased range of motion. The worker was noted to be unable to walk for more than five (5) minutes. The worker was noted to have sustained abrasions and a head injury with associated headaches, dizziness, vertigo, numbness at the top of the scalp and memory loss. The worker was noted to have slipped and fallen due to dizziness. The worker was noted to have anxiety, confusion, poor concentration, left knee pain and a left wrist strain with pain. The worker was noted to have been seen at the Toronto Poly Clinic for four (4) years for back pain, which was exacerbated by the work injury.
A neurology report dated June 1, 2015, noted an EEG study showed evidence of an abnormal record with frequent spike wave discharges consistent with primary generalized seizure disorder. A subsequent EEG completed on November 4, 2015, demonstrated an epileptic discharge with three (3) per second delta activity and associated spike discharge in spike wave pattern, which was at times more prominent from the right hemisphere and at other time seemed a centrencephalic pattern of activity.
A Health Professional’s Report (Form 26) dated August 17, 2015, indicated the worker was diagnosed with a cervical strain, bilateral shoulder strains and a lumbar strain. Functional precautions were provided and the worker was noted to be able to stand and walk for up to five (5) minutes. The worker was noted to have pre-existing left sciatica, a seizure disorder, diabetic neuropathy and depression and anxiety.
The worker was noted to be attending a pain clinic for epidural steroid injections, receiving physiotherapy and massage therapy and taking oral medications.
A Physiotherapist’s Treatment Extension Request dated August 26, 2015, noted the worker was diagnosed with lower back and shoulder pain. The worker’s standing and walking tolerances were noted to be limited to 30 minutes; however, they walked at a slower pace due to pain in their back. The worker was noted to have pain in their right thigh and reduced strength in their bilateral hands. The worker’s recovery was noted to be normal; however, a complete recovery was not expected. Further treatment was recommended.
A medical note from the worker’s psychiatrist dated September 15, 2015, noted the worker was under their care due to stress, anxiety, depression, memory lapses, dizziness and sleeplessness.
A medical report dated November 1, 2015, noted the worker suffered from chronic pain in the back of their head, both shoulders, trapezii and lower back. The worker was noted to require continued physiotherapy and massage and to see the specialists at the pain clinic. It was noted that the worker may also benefit from acupuncture.
A January 18, 2016 report from a psychiatrist noted the worker had suffered physically and mentally due to stress, anxiety and depression caused by the employer’s actions, which were outlined in previous reports. The worker was noted to have sleepless and restless nights after discriminatory and harassing actions by their employer before their early retirement. The psychiatrist noted the worker reported the employer had ignored several notes regarding the provision of modified work and accommodation, which had increased the worker’s suffering in physical health and affecting their mental health by working forcibly under stressed conditions. The worker reported that since they started working with the employer in 1996, they were not give any opportunity for training or advancement because of the worker’s involvement with the union. The psychiatrist noted the worker’s “forceful retirement” on
December 24, 2015 was threatening and sudden and occurred just before the holidays, which ruined the worker’s holidays and did not allow the worker an opportunity to consider their options. The worker indicated that this situation and the manner in which it was “dumped on” them caused a lot of stress, anxiety and depression to the point the worker had difficulty sleeping. Due to their symptoms, the worker was prescribed anti-anxiety and anti-depressant medications, which were changed frequently due to
adverse effects and the worker’s ability to tolerate the medications. The worker reported feeling very dizzy, drowsy, having memory lapses and falling asleep everywhere, which resulted in a serious fall on a moving escalator in January 2015. These incidents aggravated the worker’s silent and dormant wave of epileptic seizures of more than 40 years into suddenly showing symptoms of short-term memory lapses, momentary stares and intermittent tremors during the day and while sleeping at night. The worker was prescribed an anti-seizure medication, the side effects of which compromised the worker’s normal activities of daily living. The worker reported the prescribed anti-depressants and anticonvulsants had drained their energy and debilitated them to the extent that their life was no longer normal.
The worker was seen at the Assess and Restore Geriatric Clinic on May 5, 2016. The worker was seen for an evaluation of multiple medical problems, concerns related to a gradual cognitive decline and progression of functional impairment due to decreased mobility. The worker reported they were struggling with memory loss, fatigue, decline in function, daytime somnolence and depression. It was noted that it was difficult to obtain a clear narrative from the worker and their spouse. The worker reported a decline in their mobility and level of function over the prior three (3) to four (4) years. The worker indicated it began with an injury/pain in their right wrist and sciatica. The worker reported they tried for a couple years to obtain a modified working schedule to accommodate their needs and they were planning to retire at the end of 2015. The worker stated they sustained a fall in January 2015, slipping back on an escalator at work. After this fall, the worker was seen by numerous specialists for treatment of chronic neck and back pain, dizziness and intermittent numbness in the occipital area.
The worker reported they relied mainly on their spouse. The worker ambulated with a cane and they were able to transfer independently from sitting to standing. The worker stated were independent with dressing, feeding and toileting; however, they required assistance for showering. The worker reported they were unable to participate in household chores. The worker’s mood was noted to be depressed. The worker endorsed low motivation and feelings of worthlessness due to a lack of activity. The worker reported frequent episodes of anxiety, which were triggered by separation from family members and their spouse. The worker indicated they began to feel extremely anxious after an accident in January 2015.
The worker reported their gait endurance had decreased over the last year and they had a fear of falling. The worker endorsed dizziness and light headedness. The worker indicated they received physiotherapy and massage therapy; however, they felt unable to tolerate a higher level of exercise due to chronic pain. The diagnostic testing was reviewed and the worker was noted to have mild to moderate microvascular white matter changes in the brain, EEG proven seizure activity and significant obstructive sleep apnea.
The worker was noted to suffer from premature frailty due to a host of complex medical conditions with psychological consequences. Management of their chronic medical conditions, diabetes and obstructive sleep apnea, was recommended. The assessor noted that the association between uncontrolled sleep apnea and cognitive impairment was explained to the worker. The worker was noted to present with subjective symptoms of memory loss and their results on cognitive testing were inconsistent. An MRI of the brain was recommended to rule out vascular dementia. The worker’s depression was noted to be in partial remission and they were advised to continue with their prescribed medication for this condition.
The worker was noted to have a moderate increased risk of falls and an in home assessment with a physiotherapist was recommended.
An MRI of the worker’s head completed on August 15, 2016, showed evidence of mild diffuse cerebral atrophy and multiple small nonspecific foci of increased T2 and FLAIR signals involving the periventricular and subcortical white mater bilaterally, which may represent mild chronic microangiopathic changes. There was no acute process identified within the head.
A medical report dated November 29, 2016, indicated that regarding the worker’s epilepsy, the worker’s seizure disorder was chronologically related to the January 9, 2015 fall and may have been triggered and aggravated by the fall.
A May 10, 2017 report from a Toronto Clinic noted the worker was diagnosed with chronic pain syndrome and they were receiving therapeutic injections of local anaesthetic on a regular basis for pain management.
A May 31, 2017 report from a chiropractor noted the worker had been receiving treatment for chronic bilateral shoulder and lower back pain. The worker was receiving weekly therapy including physiotherapy, massage and chiropractic treatment.
A June 5, 2017 report signed by a psychiatry resident and a geriatric psychiatrist with the Psychogeriatric Assessment Consultation and Education (PACE) Clinic at the Centre for Addiction and Mental
Health (CAMH), indicated the worker had been diagnosed with post-traumatic stress disorder (PTSD) related to the accident in January 2015. The worker was noted to suffer from symptoms of increased anxiety, nightmares and flashbacks, which were consistent with PTSD.
Medical reports dated June 12, 2017 and October 30, 2017, indicated the worker had chronic low back and bilateral lower extremity pain. The worker was diagnosed with degenerative disc disease, spondylosis, spinal stenosis and bilateral L5 radiculitis/radiculopathy. The worker was noted to have been receiving injections for their lower back, which provided significant improvement in their symptoms that was partially ongoing. The worker was provided with further epidural steroid injections.
An MRI of the worker’s lumbar spine completed on October 31, 2018, showed evidence of spinal stenosis and marked degenerative changes.
A medical report dated July 4, 2022, noted the worker was seen on a regular basis at a pain centre for treatment of chronic low back pain and sciatica.
A medical note dated November 8, 2022, noted the worker remained under the care of a physician at the Toronto Poly Clinic and they were seen on a regular basis.
Initial and Secondary Entitlement
In this case, the worker has claimed entitlement to various conditions resulting from the work-related injury, including cervical and bilateral shoulder strains, a head injury, a seizure disorder, obesity, diabetic neuropathy, headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss, poor concentration, depression and anxiety.
With respect to establishing initial entitlement, operational Policy 11-01-01, Adjudicative Process, states that all decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."
An allowable claim must have the following five points:
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
In the determining proof of accident, decision makers are asked to consider a number of factors including whether an accident or disablement situation existed; whether there are any discrepancies in the date of accident and the date the worker stopped working; whether there was any delay in the onset of symptoms or in seeking health care attention and whether there were any witnesses.
In review of the contemporaneous medical information on the claim file, I note the worker was initially diagnosed with back contusions and anxiety. The worker was seen by a physiotherapist on February 4, 2015 and reported injuries to their head, neck and lower back. No concerns with their
shoulders were noted. I note the worker initially reported pain in their right shoulder; however, they did not report shoulder pain to their treating health care professionals until February 9, 2015, one month after the work-related incident, when they advised their psychiatrist of bilateral shoulder pain. A medical report from the worker’s physician dated March 22, 2015, noted the worker had suffered injuries to their neck, shoulders and lower back due to the work-related injury, but did not provide a specific diagnosis or objective findings for the neck or bilateral shoulders. Noting the delay in seeking medical attention for the bilateral shoulders and cervical spine and a lack of physical findings for theses reported injuries, I find there is insufficient evidence to support the worker sustained cervical and bilateral shoulder strains as a result of the January 9, 2015 work-related incident. As a result, I find the worker does not have initial entitlement to cervical and bilateral shoulder strains. Initial entitlement was appropriately accepted for a contusion to the neck.
The worker had claimed entitlement to a head injury and advised the Eligibility Adjudicator on February 10, 2015, that their back and head were bleeding following the work-related injury. The
photographs on the claim file do not support the worker’s back was bleeding but show contusions on the worker’s back. The contemporaneous medical information on the claim file does not support the worker sustained a head injury and there is no mention of the worker reporting an injury to the head or having a wound on their head on the Form 8 completed on January 9, 2015. The statement from the witness specifically indicates that while they were unable to stop the worker from falling, they were able to grab the worker’s shoulder and head to prevent the worker from hitting their head on the metal railing. I find the contemporaneous reports do not support the worker sustained a head injury. As a result, I find the worker does not have initial entitlement to the head.
I note the worker was diagnosed with obesity and diabetic neuropathy prior to the work-related injury. These conditions are non-occupational and are not compatible with the reported mechanism of injury. I find there is no evidence to support the work-related injury caused or contributed to the worker’s obesity and diabetic neuropathy. Further, I find there is no evidence to support these conditions were materially changed or accelerated by the work-related injury. I find the worker does not have initial entitlement to obesity and diabetic neuropathy.
The worker has also claimed entitlement to headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss, poor concentration, depression and anxiety. No organic diagnosis has been provided in relation to these conditions. The worker’s entitlement to mental stress injury, including entitlement to depression and anxiety is reviewed below. Based on the medical information on the claim file, the references made to headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss, poor concentration appear to be in keeping with the worker’s diagnosed psychological condition. From an organic perspective, I find these diagnoses are not compatible with the accepted mechanism of injury. As a result, I find the worker does not have initial entitlement to headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss, poor concentration.
With respect to the seizure disorder, the Form 26 dated August 17, 2015, appears to indicate the diagnosed seizure disorder pre-dated the work-related injury; however, a medical report dated November 29, 2016 from the same physician, indicated the seizure disorder was chronologically related to the January 9, 2015 fall and may have been triggered and aggravated by the fall. I have considered the opinion provided in the November 29, 2016 report; however, the physician has not provide any explanation as to how the seizure disorder was triggered by the work-related fall. While the worker has reported an injury to the head, a head injury has not been accepted under this claim. I find there is no evidence to support the work-related fall caused or contributed to the diagnosed seizure disorder and I find this diagnosis is not compatible with the reported mechanism of injury. As a result, the worker does not have initial entitlement to a seizure disorder.
Policy 15-05-01, Resulting from Work-Related Disability/Impairment, states that 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. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work- related injury.
In review of the medical information on the claim file, I find there is insufficient objective evidence to support a causal link between the diagnosed seizure disorder and the work-related injury. As a result, I find the worker does not have secondary entitlement to the diagnosed seizure disorder.
Ongoing Entitlement
Policy 11-01-05, Determining Permanent Impairment, states that workers are entitled to compensation for permanent impairments resulting from work-related injuries/diseases. 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. 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.
To determine that a permanent impairment exists, the decision-maker must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work- related injury/disease.
Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.
In all cases, decision-makers identify when MMR is reached. Decision-makers consider whether
recent clinical evidence indicates any change in the work-related injury/disease
the worker is receiving or will receive treatment that is likely to improve the work-related injury/disease, or
the worker is receiving treatment or using medication to maintain the current level of recovery.
The decision-maker must confirm that the ongoing impairment is work-related by considering
whether the current diagnosis is the same as or compatible with the initial work-related injury/disease diagnosis
whether the clinical evidence of impairment is related to the current diagnosis, and
whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment
If the work-related injury/disease and a pre-existing condition or non-work-related factor are both contributing to the degree of total impairment to the area, the impairment attributable to the work-related injury/disease is determined. If the ongoing impairment is caused solely by a pre-existing condition and/or non-work-related factor, there is no permanent impairment.
In this case, the CM determined the worker reached maximum medical recovery for the accepted contusions to the neck and upper and lower back on March 25, 2015, with no ongoing work-related impairment. In review of the claim file, I note the Form 8 completed on January 9, 2015, indicated the worker had pre-existing back pain and a note from the Toronto Poly Clinic dated May 6, 2015, stated the worker had been seen for several years. The worker was discharged from physiotherapy on
March 25, 2015 and at the time discharge, the worker was noted to be able to complete their regular work duties.
While the worker has reported continued pain in their neck and back, I am unable to attribute the worker’s symptoms to the work-related injury. The worker has a longstanding history of lower back pain, which pre-dates the work-related injury. I find there is no objective evidence to support the worker’s pre- existing lower back condition was materially changed or accelerated due to the work-related injury. I find there is insufficient evidence to support the work-related injury is contributing to the worker’s ongoing impairment. I find the worker reached maximum medical recovery for the accepted neck and upper and lower back contusions on March 25, 2015, with no evidence of an ongoing work-related impairment. I find the worker does not have ongoing entitlement to the neck and back or entitlement to a permanent impairment for the neck and back.
Entitlement to Loss of Earnings Benefits
The worker has claimed entitlement to loss of earnings benefits for sporadic lost time between January 20, 2015 to March 6, 2015.
Policy 11-02-02, Lost Time Claims, states that decision-makers review the information on file to determine a worker's entitlement to benefits. Clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid. Once entitlement has been determined and the initial payment has been made, decision makers are responsible for issuing wage loss benefits or loss of earnings benefits and monitoring the treatment and recovery of the worker. While the worker is unable to perform any type of work, the WSIB issues wage loss benefits or loss of earnings benefits.
In this case, the worker returned to work following the work-related incident; however, they subsequently lost time from work. The worker received loss of earnings benefits for January 20, 2015,
January 21, 2015, January 26, 2015 and February 4, 2015 as they were unable to sustain their regular work duties and suitable modified work was not available to them. In review of the claim file, the worker was initially paid advances by the employer through the use of their sick time. The employer was then reimbursed for this time to credit the sick time used by the worker. As entitlement had already been accepted for these dates, there is no basis to review the worker’s entitlement to benefits for this period.
The worker testified they also lost time from work on February 11, 2015, February 17, 2015, February 18, 2015, February 19, 2015, February 20, 2015, February 25, 2015, February 26, 2015,
February 27, 2015, March 4, 2015 and March 6, 2015. The worker stated they lost time from work on
these dates due to their pain or to seek medical attention. The worker noted that these dates were covered through time paid by the employer including flex time, retirement leave and paid time off for religious holidays.
In review of the medical reports on the claim file, there is no indication the worker was authorized off work on the above noted dates. As no clinical evidence has been provided to support the worker was unable to return to work due to the work-related injury and the worker has not provided medication information to support they had clinical authorization to be off work, I find the worker is not entitled to loss of earnings benefits for the sporadic lost time claimed between February 11, 2015 and March 6, 2015.
Entitlement to a Mental Stress Injury
The worker has requested entitlement to a metal stress injury. The relevant policies are Policy 15-03-02, Traumatic Mental Stress and Policy 15-04-02, Psychotraumatic Disability.
Entitlement to traumatic mental stress was initially reviewed under Policy 15-03-02, Traumatic Mental Stress, dated October 12, 2004. The policy was reviewed and revised on April 7, 2016 and
January 1, 2018. The revised version of the policy dated January 2, 2018, applied to all accidents on or after January 1, 2018 and to claims that met the transitional provisions outlines in the policy. As the worker had filed a notice of objection within the appropriate time frame, this claim has met the transitional provision outlined in the policy.
Policy 15-03-02, states that a worker is entitled to benefits for traumatic mental stress arising out of and in the course of the worker’s employment. A worker is not entitled to benefits for traumatic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
In order to consider entitlement for mental stress related to one or more traumatic events, the WSIB decision-maker must identify that one or more traumatic events occurred. A traumatic event may be a result of a criminal act or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others. In most cases a traumatic event will be sudden and unexpected.
In all cases, the event(s) must arise out of and occur in the course of the employment, and be clearly and precisely identifiable, and objectively traumatic. This means that the event(s) can be established by the WSIB through information or knowledge of the event(s) provided by co-workers, supervisory staff, or others, and is/are generally accepted as being traumatic. Traumatic events include, but are not limited to
witnessing a fatality or a horrific accident
witnessing or being the object of an armed robbery
witnessing or being the object of a hostage-taking
being the object of physical violence
being the object of death threats
being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
being the object of workplace harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse), and
being the object of workplace harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).
The worker must have suffered or witnessed the work-related traumatic event(s) first hand, or heard the work-related traumatic event(s) first hand through direct contact with the traumatized individual(s), e.g., speaking with the victim(s) on the radio or telephone as the traumatic event(s) is/are occurring.
A worker is not entitled to benefits for traumatic mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
In this case, the worker slipped and fell on a wet escalator and sustained contusions to the neck, upper and lower back. While the work-related incident was sudden and unexpected, there is no indication the incident was objectively traumatic. While the worker has reported incidents of perceived workplace harassment, these incidents appear to be related to advancement opportunities and the worker has not reported threats of physical violence or being placed in a life threatening situation. In review of the accepted mechanism of injury, I find there is no evidence of an objectively traumatic event. As a result, I find the worker does not have entitlement under the Traumatic Mental Stress policy.
Based on the worker’s report of the onset of their psychological condition, I have considered entitlement as secondary condition under the psychotraumatic disability policy.
Policy 15-04-02, Psychotraumatic Disability, states that 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. Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition.
Entitlement for a 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.
In this case, the reported psychotraumatic disability/impairment became manifest within five (5) years of the injury. I will review each criteria separately.
Criterion 1 is not met as the worker did not suffer an organic brain injury as a result of the work-related injury on January 9, 2015.
Criterion 2 is not met. The medical information on the claim file supports the worker’s psychological condition pre-dated the work-related injury and resulted from perceived harassment in the workplace. No information has been provided to support the worker’s psychological condition deteriorated as a result of the work-related injury. I find there is no evidence to support the worker experienced an emotional reaction to the accident or injury. The worker’s accepted injuries were not severe and were limited to contusions only and the accident was not traumatic in nature. Further, there is no evidence to support the work experienced a reaction to the treatment process. I note the CAMH report dated June 5, 2017, which indicated the worker had been diagnosed with PTSD resulting from the January 2015 accident and noted the worker suffered from symptoms of increased anxiety, nightmares and flashbacks. While I have considered the opinion provided, the report provides little context as there is no indication of the mechanism of injury reported and considered in providing this opinion. I note other medical reports have indicated the worker had memory difficulties and it was difficult to obtain a narrative from them.
Additionally. I note there are some discrepancies in the reported mechanism over time. I find there is insufficient evidence to support the worker developed a psychological condition as an indirect result of a physical injury.
Criterion 3 is not met. The clinical records support the worker was prescribed medication for a psychological condition prior to the work-related. The worker was diagnosed with anxiety on the date the injury occurred and on January 17, 2015, the worker was diagnosed with depression and anxiety. The worker was subsequently seen by a psychiatrist on February 9, 2015, and diagnosed with major depression with anxiety, which was attributed to non-compensable medical conditions and “moderate harassment at work”. I find there is no evidence to support the worker’s psychotraumatic disability is related to extended disablement and to non-medical, socioeconomic factors, resulting from the work- related injury as the worker’s symptoms began immediately after the injury, before the worker’s disablement could reasonably be considered extended.
I find the criteria for entitlement to psychotraumatic disability has not been met. I find the worker does not have entitlement to psychotraumatic disability.
The worker has made multiple references to workplace harassment; however, the worker has not delineated these events or pursued entitlement to chronic mental stress. As the employer would have been at a disadvantage if these events were addressed for the first time during the oral hearing, I have made no findings regarding the worker’s entitlement to chronic mental stress under Policy 15-03-14.
Should the worker choose to do so, they may pursue this issue with the Operating area.
CONCLUSION
The worker’s objection is denied.
The worker does not have initial entitlement to cervical and bilateral shoulder strains, a head injury, obesity, diabetic neuropathy, headaches, dizziness, vertigo, numbness at the top of the scalp, confusion, memory loss and poor concentration.
The worker does not have initial entitlement or secondary entitlement to a seizure disorder.
The worker reached maximum medical recovery for the accepted neck, upper back and lower back contusions on March 25, 2015, with no ongoing work-related impairment.
The worker does not have entitlement to loss of earnings benefits for sporadic lost time between February 11, 2015 and March 6, 2015.
The worker does not have entitlement under the Traumatic Mental Stress policy. The worker does not have entitlement under the Psychotraumatic Disability policy.
DATED November 30, 2022
M. Haughton
Appeals Resolution Officer
Appeals Services Division