APPEALS RESOLUTION OFFICER DECISION
decision number:
20220048
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
REPRESENTED by:
self
HEARING:
HEARING IN WRITING
HEARD by:
L. mansueti, appeals resolution officer
April 21, 2022
ISSUES
The worker objects to:
The Case Manager (CM) decision dated February 22, 2021 communicating the adjustment of their loss of earnings (LOE) benefits effective January 25, 2021.
The CM decision dated March 16, 2021 granting entitlement for the updated diagnosis of soft tissue right knee injury with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment.
The Non-Economic Loss (NEL) Specialist decision dated October 6, 2021 communicating entitlement to a 2 per cent NEL benefit for the right knee, for which a reduction was applied due to their measurable pre-existing right knee impairment.
The CM decision dated October 21, 2021 denying further entitlement to psychological services.
The CM decision dated October 21, 2021 communicating the closure of the worker’s LOE benefit entitlement effective October 15, 2021.
BACKGROUND
On November 5, 2020, the worker was a passenger in a car that was involved in a motor vehicle accident (MVA) while they were asleep. The vehicle hit a pole causing the airbags to deploy. The worker’s right knee hit the dashboard and their face was struck with the airbag, and they jumped out of the vehicle. The worker was working as a seasonal Labourer at the time of injury, and had worked with the employer for approximately 2 weeks.
Initial entitlement was accepted for soft tissue injuries involving the neck, upper back, lower back, and right knee. Full LOE benefit entitlement was approved from November 9, 2020 onward. The worker was not progressing in their recovery, thus was referred to the Lower Extremity Specialty Program. The worker was assessed at the Lower Extremity Specialty Program on February 12, 2021. The assessment team recommended the worker receive a psychological assessment as well as undergo diagnostic testing for the right knee. Entitlement to psychological treatment was approved under this claim.
The employer offered the worker modified duties consisting of administrative duties, which the worker declined. The operating area determined the employer’s offer of modified work was suitable and within their functional abilities. The decision letter dated February 22, 2021 communicated the worker was entitled to partial LOE benefits effective January 25, 2021 based on their ability to perform suitable modified work 4 hours per day. The worker returned to work with the employer on March 3, 2021, performing administrative duties.
The worker was reassessed at the Lower Extremity Specialty Program on March 12, 2021. The report indicated the worker’s occupational diagnosis was soft tissue right knee with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment. As per the decision letter dated March 16, 2021, the operating area expanded the worker’s entitlement to include the aforementioned diagnosis.
On March 21, 2021 the employer confirmed they no longer had modified duties available. The worker received full LOE benefits effective March 22, 2021. The worker was then referred for Return to Work (RTW) services. In July 2021 they were sponsored to participate in a RTW plan for the approved suitable occupation (SO) of Customer and Information Service Representative.
The worker was determined to have reached maximum medical recovery (MMR) on September 17, 2021, with evidence of a right knee permanent impairment (PI). The decision letter dated October 6, 2021 communicated the worker was entitled to a 2 per cent NEL benefit in recognition of the right knee PI. It was determined the worker’s NEL quantum was reduced on the basis the worker had a measurable pre-existing right knee impairment.
In October 2021 the worker’s treating psychologist requested approval for additional psychological treatment. A decision letter dated October 21, 2021 communicated there was no entitlement to additional psychological treatment. The worker completed their RTW plan on October 15, 2021, and remained unemployed. A decision letter dated October 21, 2021 communicated the worker’s entitlement to LOE benefits ceased effective October 15, 2021, on the basis they had the potential to restore their pre-injury earnings.
The worker objected to the decisions dated February 22, 2021, March 16, 2021, October 6, 2021, and October 21, 2021, and these are now before the Appeals Services Division.
AUTHORITY
Section 2, 13, 33, 40, 42, 43 and 47 of the Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
11-01-01 Adjudicative Process
15-02-03 Pre-existing Conditions
17-01-02 Entitlement to Health Care
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
November 3, 2008
November 3, 2014
October 12, 2004
January 2, 2018 and September 1, 2021
18-05-03 Determining the Degree of Permanent Impairment
19-02-07 RTW Overview and Key Concepts
November 3, 2014
November 30, 2020
American Medical Association’s Guide to the Evaluation of Permanent Impairment, 3rd edition revised. (AMA Guides)
ANALYSIS
I have carefully considered all of the available information, legislation, relevant operational policies and AMA Guides in reaching this decision. The worker representative did not provide a submission for my review and consideration. For the reasons that follow, I find the worker is entitled to full LOE benefits from January 25, 2021 to March 3, 2021; the right knee diagnosis remains in order; the worker is entitled to a 4 per cent NEL benefit for the right knee with no reduction; additional psychological services are in order, and the closure of their LOE benefit entitlement remains in order.
1. LOE Benefit Adjustment
Following the workplace accident, the worker was initially diagnosed with soft tissue injuries involving the neck, right knee, upper back and lower back. As documented in memorandum A0003 dated November 24, 2020, the worker advised the CM they were unable to weight bear on their right leg, and they were using crutches to ambulate. The employer presented the worker with an offer of modified duties dated November 30, 2020. The modified duties consisted of self-paced general housekeeping duties, disinfecting trucks and machines, and driving to sites to check for debris and snow. The worker declined this offer of modified duties on the basis it was not suitable, thus a referral to a RTW Specialist was initiated.
The worker commenced a Program of Care (POC) in early December 2020 for low back injuries as well as for musculoskeletal injuries. The worker had restricted range of motion (ROM) of the right knee, swelling, and decreased strength. The worker had limitations for lifting, bending, twisting, sitting, standing and repetitive movements. It was noted the worker was able to walk short distances with crutches, but was unable to drive due to right knee injury. The Functional Abilities Form (FAF) dated December 8, 2020 completed by N. Mann, Physiotherapist, indicated the worker was capable of performing sedentary duties if transportation was provided to the worker. Public transit was not recommended, as the extent of the worker’s right knee injury was not known. A knee brace was recommended for the worker, which was subsequently approved under this claim.
A RTW Specialist met with the parties on December 18, 2020 via teleconference. It was noted the worker’s pre-injury job involved physically demanding duties which included landscaping duties, maintenance, and shovelling. The RTW Specialist indicated alternate jobs needed to be considered as the physical demands of the pre-injury job duties exceeded the worker’s functional abilities. The employer indicated they could offer administrative duties on a part-time basis (4 hours per day) in the office. The duties would include filing and shredding paper, completing inventory duties, and general housekeeping cleaning duties. The RTW Specialist surmised the administrative duties were suitable with accommodations. The return to work plan was scheduled to commence on December 28, 2020. The record indicated there was a delay with the worker’s start date. The worker remained off work.
The record contains a medical note from Dr. P. Bansal, the worker’s family doctor, dated December 22, 2020 indicating the worker was unable to work due to their injuries from December 22, 2020 to February 22, 2021. The note indicated the worker was awaiting further testing including a magnetic resonance imaging (MRI), and was adjusting to a change in medications. Dr. Bansal did not expect the worker to be able to return to work for at least 2 months, maybe longer. Dr. Bansal’s chart note for this visit indicated the worker’s back pain was worsening, and they were experiencing ongoing knee pain. The physical findings included effusion and reduced ROM.
N. Mann completed a Health Professional’s Progress Report (Form 26) dated January 7, 2021 indicating the worker could begin modified administrative duties on January 11, 2021. The worker’s limitations included bending, twisting, climbing, kneeling, operating heavy equipment, operating a motor vehicle, and taking public transportation.
The operating area determined the worker was to return to work on January 25, 2021, performing administrative duties 4 hours per day. As documented in memoranda A0039 and A0040 dated January 22, 2021, the worker questioned the return to work date as Dr. Bansal’s note indicated they were to remain off work until the MRI was completed. The worker advised the RTW Specialist they did not feel ready to return to work as they were experiencing flashbacks of the accident and night sweats. They indicated Dr. Bansal was arranging a referral for them to see a psychologist. The worker also raised concerns about transportation to and from work. The record indicated the employer confirmed transportation would be arranged for the worker effective January 25, 2021. The worker did not report to work on January 25, 2021. The worker indicated in the Intent to Object (ITO) form they had no input in creating the return to work plan, and they felt bullied in accepting the modified duties offered by the employer. The worker also indicated the employer had not provided transportation to the worker on January 25, 2021, thus they were unable to report to work.
As documented in memorandum dated February 10, 2021, the worker advised the RTW Specialist they did not feel “mentally ready” to return to work due to ongoing flashbacks of the accident and pain. The worker advanced they believed the driver of the vehicle caused the accident deliberately. The worker explained their psychological issues to the CM, as documented in a memorandum. The worker indicated they were experiencing nightmares, waking up in a panic, and was experiencing increased irritability. The worker advised they were upset the accident happened, citing it could have been avoided. They also indicated the driver walked away from the MVA with no injuries, which further upset the worker. The worker did not feel they were ready to return to work from a physical or psychological standpoint. They advised Dr. Bansal was of the view they should remain off work, citing the family doctor was aware of their nightmares and had recommended psychological treatment.
The worker was referred to Lower Extremity Speciality Program. On February 12, 2021 Dr. A. Van Vliet, Orthopaedic Surgeon, and T. Fried, Physiotherapist, assessed the worker via videoconference. The report indicated the worker was taken off crutches and was currently wearing a knee brace. The worker presented with complaints of right knee pain, limited functional abilities with walking and standing, low mood, and difficulty sleeping due to nightmares. The assessment team recommended the worker seek out psychological support in the community, complete any current physiotherapy treatment, and proceed with an MRI of the right knee to rule out intra-articular pathology. The worker’s occupational diagnosis was determined to be soft tissue injury of the right knee with possible intra-articular pathology. The worker presented with several psychosocial concerns that may impede their recovery and return to work, including extreme symptom reporting and high pain levels, fear of re-injury, worry/distress, and negative colleague interactions to name a few. The worker was noted to have limitations for walking, standing, sitting, stair climbing, lifting, pushing, pulling, bending, twisting, and ability to drive a car. The report indicated the worker did not feel physically or psychological capable of operating a motor vehicle.
Dr. Bansal submitted a medical report dated February 23, 2021 indicating the worker was unable to perform their regular work duties from February 23, 2021 to March 23, 2021. Dr. Bansal indicated the worker continued to suffer from back pain and mental health issues related to the November 2020 accident. Dr. Bansal was supportive of the worker returning to modified work performing administrative duties. The chart note for this visit indicated the worker was under a lot of stress and felt as though they were being forced back to work. Dr. Bansal documented the worker was experiencing nightmares and flashbacks. The worker continued to experience mechanical back pain, reduced ROM, and Posttraumatic Stress Disorder (PTSD) symptoms. The worker advised they were willing to perform administrative duties, which was supported by Dr. Bansal.
The RTW Specialist met with the parties via teleconference on February 26, 2021. It was noted the worker had not yet returned to work. It was agreed the worker would return to work on March 1, 2021 performing administrative duties 4 hours per day. The employer agreed to arrange transportation for the worker. The record indicated the worker returned to work on March 3, 2021 performing administrative duties.
Assessment of the Evidence
The operating area determined the worker was capable of returning to work on January 25, 2021 performing administrative duties 4 hours per day; therefore the worker’s LOE benefit entitlement was adjusted accordingly. In order to render a decision in this claim, a review of the worker’s level of impairment is required to determine whether they were partially or totally disabled as a result of their compensable injuries; and whether they could have reasonably returned to work in some capacity at that time.
Operational policy 18-03-02 (published January 2018) states, in part:
Full LOE
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
The first question to be determined is whether the worker was totally or partially disabled as a result of their compensable injuries. The medical evidence indicated the N. Mann consistently indicated the worker was capable of returning to sedentary duties within their restrictions; however, Dr. Bansal did not initially recommend the worker to return to work until the worker underwent an MRI, as per the December 22, 2020 medical note. The record indicated the worker did not feel ready to return to work in January 2021 due to pain, physical limitations and flashbacks of the accident. It was noted the worker was experiencing anxiety and depression which they related to the workplace accident, and they were awaiting a psychological assessment at this time.
Based on the evidence before me, I find the nature and seriousness of the worker’s organic and non-organic injuries completely prevented them from returning to any type of work on January 25, 2021. I acknowledge the health care professionals had differing opinions with respect to the worker’s ability and readiness to return to work. I have placed more significant weight on the opinion provided by Dr. Bansal, as the family doctor likely had more insight into the worker’s mental health challenges that were impeding their ability to return to work; whereas N. Mann’s assessment was likely strictly in keeping with the worker’s physical readiness to return to work. It would appear Dr. Bansal’s assessment was likely more in keeping with a holistic perspective of the worker’s impairments, as confirmed by Dr. Bansal’s chart notes which documented the worker’s non-organic PTSD symptoms as well as organic findings. While I acknowledge there was no formal psychological diagnosis at this time, I cannot discount the worker’s significant psychological symptomology, which can be reasonably attributed to the compensable MVA. It is also noted the worker was subsequently granted entitlement for psychological treatment. This further supports their inability to return to work from a psychological perspective in January 2021 was in keeping with a compensable impairment.
Operational policy 19-02-07 indicates suitable work is work that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
I find the administrative duties offered by the employer was safe, productive, and consistent with the worker’s physical restrictions. I also acknowledge the worker was offered transportation to and from work. Dr. Bansal submitted a report dated February 23, 2021 indicating the worker continued to suffer from back pain and mental health issues. Dr. Bansal supported the worker in returning to modified work performing administrative duties. A subsequent return to work meeting took place on February 26, 2021 wherein it was agreed the worker would return to modified duties performing administrative duties 4 hours per day. It would appear the worker was, at this point, ready to return to some form of work as confirmed by Dr. Bansal. I find the worker could not have returned to otherwise suitable modified work before such time as the nature and seriousness of the totality of their compensable injuries prevented them from doing so. It was not until Dr. Bansal provided medical clearance on February 23, 2021 and the return to work meeting took place to confirm the aspects of the return to work plan on February 26, 2021, that the worker was able to return to modified work.
In summation, I find the worker is entitled to full LOE benefits from January 25, 2021 to March 3, 2021, when they returned to modified duties. I find the nature and seriousness of their compensable injuries, both organic and non-organic, completely prevented them from returning to any type of work during the aforementioned period. The evidence supports the worker was co-operative in health care measures and participated in the return to work process by attending the return to work meetings and vocalizing concerns with returning to work before they were physically and psychologically ready to do so.
2. Right Knee Diagnosis
The worker underwent a right knee MRI on February 28, 2021. The report indicated the menisci was within normal limits and there was no evidence of a tear. There was evidence of a focal full-thickness cartilage fissuring and underlying subchondral edema noted to the central femoral trochlea.
On March 12, 2021 the worker was reassessed by Dr. Van Vliet and T. Fried at the Lower Extremity Specialty Program. The worker advised they were experiencing intermittent pinching along the medial aspect of the right knee, knee pain, and constant low back pain. The worker reported no change in their overall condition. The worker’s occupational diagnosis was confirmed to be soft tissue injury right knee with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment, as confirmed by the MRI report wherein there was evidence of fissuring of the trochlear cartilage with some trochlear edema. The relevant non-occupational diagnosis was chondromalacia of the patellofemoral compartment. The worker was recommended to participate in the Enhanced Functional Treatment Comprehensive Occupational Rehabilitation Program for 6 to 12 weeks, obtain a patellar stabilization or J brace for the right knee, and a Synvisc injection in the right knee; however, it was recommended to see how they progress with physical therapy first. The worker was not amenable to receiving an injection.
The operating area expanded the worker’s right knee entitlement to include soft tissue injury right knee with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment, as per the March 12, 2021 report. It is unclear what the basis of the worker’s objection is with respect to this issue, as no arguments were provided.
Operational policy 11-01-01 indicates the “five point check system” is the criteria for ruling on entitlement to WSIB benefits. In this case, it had been established there was an employer, a worker, a personal work-related injury, proof of accident, and compatibility of the diagnoses to the accident, which were initially soft tissue injuries of the neck, upper and lower back, and right knee. Upon further diagnostic investigation, the February 2021 MRI report revealed additional right knee findings and their right knee occupational diagnosis was documented in the March 12, 2021 report. I find the worker’s expanded right knee entitlement remains unchanged. I agree entitlement remains in order for soft tissue injury right knee with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment, as the diagnosis it is compatible with the accident history.
3. NEL Quantum
The worker was assessed at the Enhanced Functional Treatment Comprehensive Occupational Rehabilitation Program on April 14, 2021; and commenced treatment on May 7, 2021, attending 2 to 3 times per week. The worker was discharged from the program on July 6, 2021. The discharge report indicated the worker no longer had any significant impairments of the right knee, back, or neck, and their functional limitations were minimal. The worker was recommended to continue with a home exercise program. From a physical perspective, the worker was determined to be able to work within the light-medium physical demand classification.
The worker was seen at the Lower Extremity Program on July 16, 2021. The report indicated the worker was likely to obtain only a partial functional recovery over the next 2 to 3 months. It was recommended the worker continue with a home exercise program. Dr. van Vliet offered to administer a Synvisc injection to help with pain in the right knee; however, the worker declined this offer. The worker was advised to return in 8 weeks’ time to determine if they would like to proceed with a Synvisc injection. On September 17, 2021 the worker returned to the Lower Extremity Program for a reassessment. The worker reported they were 60 to 70 per cent recovered from a functional perspective. The report indicated the worker experienced a couple of instances where their right leg “gave out” and endorsed experiencing intermittent pinching and sharp pain along the anterior and medial aspects of the right knee. From a physical perspective, the worker was determined to be able to return to work within the light-medium physical demand classification on a permanent basis. It was determined the worker was unlikely to achieve any further functional recovery of the right knee. The operating area determined the worker reached MMR on September 17, 2021, with evidence of a right knee PI.
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the AMA Guides.
The worker’s compensable diagnosis included soft tissue right knee with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment. The worker’s chondromalacia of the patellofemoral compartment was determined to be a non-occupational pre-existing condition.
Operational policy 15-02-03 defines a pre-existing condition as any condition that existed prior to the work-related injury, these may include conditions that have produced periods of impairment/disease requiring health care and have caused a disruption in employment prior to the workplace injury, underlying or asymptomatic conditions which only became manifest post-accident, and work-related permanent impairments for which WSIB granted a permanent disability (PD) or NEL benefit.
In review of the medical evidence in the record, it appears the worker’s pre-existing chondromalacia of the patellofemoral compartment was in keeping with an underlying or asymptomatic condition which only became manifest post-accident. This is evidenced by the fact there is no indication that the worker had previous issues or concerns with the right knee producing periods of impairment requiring health care or causing a disruption in employment.
Operational policy 18-05-03 indicates that when determining the degree of work-related permanent impairment for workers who have a pre-existing condition or prior work-related permanent impairment, the decision-maker:
rates the area of the body affected by the work-related permanent impairment
disregards any pre-existing conditions affecting other areas of the body, and
factors out pre-existing conditions and prior work-related permanent impairments affecting the same area of the body.
The worker’s right knee ROM measurements were gleaned from the September 17, 2021 report:
Flexion 115°
Extension 0
Table 39 of the AMA Guides titled Impairment Due to Amputation, Abnormal Motion and Ankylosis of the Knee Joint indicates the right knee ROM measurements translates to an 11 per cent impairment of the lower extremity. According to Table 46 titled Relationship of Impairment of the Lower Extremity to Impairment of the Whole Person, the 11 per cent impairment translates to a 4 per cent whole person impairment.
To factor out a pre-existing condition, operational policy 18-05-03 states it must be established that it is contributing to the degree of impairment to the same area of the body as the work-related impairment. To establish this, the evidence must show that the pre-existing condition, on its own, would result in an impairment rating. Table 40 of the AMA Guides titled Impairment Ratings of the Lower Extremity For Other Disorders of the Knee, indicates arthritis due to any cause including trauma or chondromalacia warrants a 0 to 20 per cent impairment of the lower extremity, according to deformity. The NEL Clinical Specialist indicated the worker’s pre-existing chondromalacia was in keeping with a 5 per cent impairment of the lower extremity, which translates to a 2 per cent whole person impairment as per Table 46. It is not known how this determination was made given there is no clinical evidence to support the pre-existing chondromalacia was a measurable impairment that could reasonably be rated according to the AMA Guides.
In this case, I find there is insufficient clinical evidence in the record to calculate the rating of the pre-existing condition according to the AMA Guides. The policy indicates that if the pre-existing condition cannot be rated, the medical significance of the pre-existing condition is determined based on the clinical evidence and the decision-maker reduces the total impairment rating of the area according to the determination. If the significance of the pre-existing condition is:
minor, there is no reduction
moderate, there is a 25 per cent reduction
major, there is a 50 per cent reduction
If it is determined that a pre-existing condition has been permanently aggravated by a work-related injury/disease, only the permanent impairment rating for the pre-existing condition that existed at the time of injury/disease is offset. In this case, the evidence supports the worker’s pre-existing condition has been permanently aggravated by a work-related injury. Given the fact the pre-existing condition cannot be rated, I find the medical significance of the pre-existing condition is minor. This is supported by the fact the worker did not have any prior issues or concerns with the right knee prior to the MVA, there is no evidence the pre-existing right knee condition produced periods of impairment requiring health care, and there was no indication the worker’s right knee caused a disruption in employment prior to the work accident. The evidence supports the worker’s pre-existing right knee condition is in keeping with an underlying or asymptomatic condition which only became manifest post-accident. As per the aforementioned policy, a minor pre-existing condition warrants no reduction in the NEL quantum. In summation, I find the worker is entitled to a 4 per cent NEL benefit for the right knee PI with no reduction.
4. Psychological Treatment Extension
The record indicated a psychological assessment was approved by the operating area on March 9, 2021 as per memorandum A0080. Dr. P. Sanghera, Clinical Psychologist assessed the worker on March 25, 2021 and April 8, 2021. The report indicated the worker was experiencing nightmares and unwanted memories of the MVA, decreased concentration, worry about the future, and decreased social interaction. The worker reported experiencing trauma symptoms related to the workplace accident. They experienced flashbacks of the accident and described feeling anxious when travelling in a motor vehicle. The worker indicated the driver of the vehicle did not apologize to the worker, and never asked how they were doing, which was upsetting as they had a good working relationship with the driver prior to the accident. The worker was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as symptoms of PTSD. Dr. Sanghera indicated it remained unclear if the worker met the full criteria for PTSD at the current time. The worker was recommended to participate in 12 to 18 sessions of psychological treatment.
The operating area approved 18 sessions of psychological treatment in the community on April 22, 2021, as per a memorandum.
The worker commenced psychological treatment on May 21, 2021 with A. Jeffers Toby, Psychologist. The WSIB Community Mental Health Program (CMHP) Progress Form dated July 15, 2021 indicated the worker was actively engaged in therapy, and was open to interventions and strategies to address stress, anxiety, and reducing the impact of the trauma symptoms. It was noted the worker was off work as the employer no longer had modified duties available, and the worker was considering the option of vocational retraining. The report indicated the worker was not currently ready to return to work due to presence of ongoing symptoms of stress and anxiety; however, they had a good prognosis and would be able to return to modified work in the future or to change employment direction.
A CMHP Progress Form dated August 23, 2021 indicated the worker’s general functioning and social levels continued to improve. The worker was looking toward the future with a sense of promise; however, they did not yet appear ready to return to work due to persistent anxiety, stress, and pain which would negatively impact employment functioning. It was noted the worker was involved in an employment retraining program. The worker was determined to have a good prognosis and expressed a need to get better and return to some type of employment.
The CMHP Progress Form dated October 7, 2021 indicated the worker’s occupational functioning function had improved. It was noted the worker wanted to be engaged in the employment process; however, the issues of stress and anxiety continued to persist. It was indicated the worker would continue to benefit from ongoing psychological intervention to address their symptoms and to prepare them to return to work in whatever capacity deemed appropriate. The worker’s levels of anxiety and stress continued to prevent their return to full occupational functioning.
Operational policy 17-01-02 states, in part, “A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.”
The worker participated in psychological treatment as recommended by Dr. Sanghera. The operating area approved 18 sessions of psychological treatment for the worker, which commenced in May 2021. The worker’s treatment ended in October 2021; however, the treating psychologist recommended additional treatment to further address their persistent symptoms of anxiety and stress as well as help prepare them for returning to work. It is noted the worker completed their RTW plan on October 15, 2021, and remained unemployed. The psychological progress reports indicated the worker was engaged and actively participated in psychological treatment, they made considerable improvements in functioning, and derived benefits from the services provided. In review of the evidence before me, I find a short course of additional psychological treatment would be necessary, appropriate and sufficient as the worker completed their retraining program and would likely benefit from additional psychological treatment while they transitioned out of the RTW plan and continued their independent job search efforts.
5. LOE Benefit Closure
The worker stopped working with the employer on March 21, 2021 as modified duties were no longer available. The worker received full LOE benefits effective March 22, 2021. In April 2021 the worker was referred for RTW services. The SO of Customer and Information Service Representative was approved in July 2021, and the record indicated the worker was in agreement with this option. The approved SO was determined to be suitable, within the worker’s restrictions, and available within the local labour market, as communicated in the decision letter dated July 12, 2021. The RTW plan consisted of Employment Placement Services (EPS) and job search training. The worker fully participated in the RTW plan, and applied for jobs in the SO. The record indicated the worker received calls from potential employers about jobs they had applied to, but these were not of interest. The potential jobs either offered minimum wage, they were day or afternoon shifts (worker preferred night shifts), heavy lifting was required, and/or they required a COVID vaccine, which the worker did not have.
The record indicated the worker was seeking employment opportunities as a forklift driver as well as customer service positions. The employment services final report indicated the worker applied for several jobs; however, the worker was not employed at the time the RTW plan ended on October 15, 2021. The record indicated the worker contacted the operating area in December 2021 to report they had secured a full-time position as a driver, starting in January 2022.
Operational policy 18-03-02 (published September 2021) states, in part:
Determined earnings are the earnings associated with the identified SO, and are based on the current labour market wage information.
The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker:
will not be provided with RTW services
remains unemployed at the completion or closure of the RTW plan (with training)
is underemployed in a job not identified in the SO, or
is voluntarily underemployed in the identified SO.
In this case, the worker was unemployed at the completion of their RTW plan, thus determined earnings of the identified SO are to be used for the LOE benefit review. The policy indicates in cases where a worker’s post-injury earnings were based on determined earnings, if the WSIB originally used:
entry-level wages to determine the post-injury earnings, updated entry-level wages are used, or
mid-range wages to determine the post-injury earnings, updated mid-range wages are used.
The record indicated entry-level SO wages of $XX.XX per hour was used at the time the RTW plan was developed. As such, updated entry-level wages are to be used to review the worker’s LOE benefit entitlement at the completion of the RTW plan. The updated entry-level SO wages was noted to be $XX.XX per hour, according to the Government of Canada Job Bank. The worker was determined to be employable in the approved SO of Customer and Information Service Representative, with the ability to earn $XX.XX per hour, working 40 hours per week. The evidence supports the worker had the ability to fully restore their wage loss upon the completion of the RTW plan. As such, I find the worker’s LOE benefit entitlement appropriately ended on October 15, 2021, as they had the capability of restoring their pre-injury earnings of $XX.XX per week.
CONCLUSION
I conclude:
The worker is entitled to full LOE benefits from January 25, 2021 to March 3, 2021, when they returned to modified duties.
The diagnosis of soft tissue right knee injury with worsening and exacerbation of underlying chondromalacia of the patellofemoral compartment remains in order.
The worker is entitled to a 4 per cent NEL benefit for the right knee with no reduction.
The worker is entitled to a short course of additional psychological treatment.
The closure of the worker’s LOE benefit entitlement effective October 15, 2021 remains in order.
The worker’s objection is allowed in part.
DATED April 21, 2022
L. Mansueti
Appeals Resolution Officer
Appeals Services Division