APPEALS RESOLUTION OFFICER DECISION
decision number:
20220053
OBJECTING PARTY:
WORKER
REPRESENTED by:
worker representative
RESPONDENT:
EMPLOYER (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
K. MACMILLAN, appeals resolution officer
April 19, 2022
ISSUES
The worker, through their representative, is objecting to the following:
The Case Manager’s decision of April 1, 2021 confirming that there is no entitlement to generalized anxiety disorder or post-traumatic stress disorder (PTSD);
The Case Manager’s decision dated April 1, 2021 determining that psychological maximum medical recovery (MMR) was reached with a partial level of impairment, no restrictions, and the ability to return to work on a graduated basis; and,
The Non-economic loss (NEL) Clinical Specialist’s decision of April 16, 2021 rating the permanent psychological impairment at 15% as a Class 2 (Mild Impairment).
BACKGROUND
On October 3, 2012, the worker was preparing to transfer a patient from the wheelchair to the bed. The worker moved the meal table in order to have access to the controls at the foot of the bed. As the worker was placing the bed in the downward position, the meal table unexpectedly sprung upwards out of the lowered position, hitting the bed above the control area. The meal table then fell towards the worker, landing on their left ankle. A Case Manager’s decision letter dated November 14, 2014 allowed entitlement to complex regional pain syndrome. Work Transition services closed in late November 2014 due to ongoing medical issues.
A Case Manager’s decision letter dated June 15, 2015 allowed temporary entitlement to psychotraumatic disability for the diagnosis of adjustment disorder with depressed mood. The worker had two spinal cord stimulator surgeries in October 2015. A 14% NEL benefit for the left lower leg was awarded in February 2017. A Case Manager’s decision letter dated May 10, 2017 authorized entitlement to the diagnosis of major depressive disorder and confirmed that the worker was temporarily totally disabled. Another Case Manager’s decision letter dated January 17, 2018 confirmed that the worker was temporarily totally disabled due to the psychological condition but not yet at MMR.
The 72-month mark occurred on October 3, 2018. A Case Manager denied entitlement to generalized anxiety disorder and PTSD in a decision letter dated September 30, 2020. A third neurostimulator surgery took place on December 11, 2020. The Case Manager’s decision letter of April 1, 2021 stated that the worker’s major depressive disorder reached MMR as of February 26, 2021. The Case Manager determined that there have been no psychological changes since September 30, 2020 and that the worker is capable of participating in return-to-work activities on a full-time basis in order to begin a graduated return-to-work plan.
The NEL determination of April 14, 2021 rated the permanent major depressive disorder impairment at 15% in the high-end of Class 2 (Mild Impairment). The Appeal Readiness Form of November 8, 2021 requested that the worker’s objections be resolved by an oral hearing. The Appeals Registrar’s administrative decision dated December 8, 2021 determined that the criteria for an oral hearing were not met. The issues are now before me as a hearing in writing.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
11-01-05 Determining Permanent Impairment
15-04-02 Psychotraumatic Disability
18-05-03 Determining the Degree of Permanent Impairment
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural
Disorders
19-02-07 RTW Overview and Key Concepts
November 3, 2008
November 3, 2014
September 7, 2018
November 3, 2014
July 18, 2008
April 9, 2021
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
ANALYSIS
I find that entitlement is in order for the diagnosis of panic disorder as well as psychological restrictions. Additionally, I accept a partial level of psychological impairment by the psychological MMR date of February 26, 2021 and that the NEL rating is to be increased to 30%. My reasons for these findings are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
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 American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd. edition revised, (AMA Guides).
Worker representative’s position
It is the worker representative’s view that the worker’s ongoing issues of generalized anxiety disorder and PTSD continue to be documented by the treating psychologist and should be accepted within the entitlement of this claim. The worker representative submits that there are psychological restrictions and that the NEL quantum of the permanent psychological impairment should be increased.
Jurisdiction
I acknowledge that the Appeal Readiness Form signed November 8, 2021 lists the decision letter of April 1, 2021 while requesting the allowance of oral testimony regarding the worker’s anxiety and PTSD. The Objection Intake Team’s administrative letter dated December 2, 2021 lists the denial of anxiety and PTSD as being associated with the decision letter of April 1, 2021. Similarly, the Appeal Registrar’s administrative letter dated December 8, 2021 lists the decision of April 1, 2021 while confirming the issues in dispute as including the denial of entitlement to generalized anxiety disorder and PTSD.
I realize that the Case Manager’s decision letter of April 1, 2021 does not actually deny entitlement to anxiety and/or PTSD, but instead states that these two diagnoses were denied in a prior decision dated September 9, 2020. Importantly, I observe that there is no formal decision letter, only a memo from the Case Manager. However, I accept that it is the worker representative’s intent to proceed with the objection to the denial of entitlement to generalized anxiety disorder and PTSD even though neither date of September 9, 2020 nor September 30, 2020 are listed on the Appeal Readiness Form. In particular, I note that correspondence from the worker representative dated May 6, 2021 specifically objects to the denial of anxiety and PTSD.
Further, I observe that the worker’s Intent to Object form signed November 4, 2020 lists the decision letter of September 30, 2020. The worker also identifies the issue in dispute as including the denial of entitlement to generalized anxiety disorder and PTSD. Therefore, I accept that the time limit to object to the denial of entitlement to generalized anxiety disorder and PTSD is met and is to be included with the issues listed within the Appeal Readiness Form signed November 8, 2021. Accordingly, I find that the issue of entitlement to the diagnoses of generalized anxiety disorder and PTSD are properly before me.
1) Entitlement to diagnoses of generalized anxiety disorder and post-traumatic stress disorder
It is my view that entitlement is in order to the psychological diagnosis of panic disorder.
Policy 15-04-02, Psychotraumatic Disability, provides the authority to authorize psychotraumatic disability entitlement as a reaction to the treatment process. Policy 11-01-01, Adjudicative Process, requires clinical compatibility of diagnosis with disablement history. To put it another way, the medical diagnosis must be shown to have resulted from, or been caused by, the worker’s job duties.
I recognise that the Case Manager’s memo of September 9, 2020 summarizes factors such as the worker’s pre-accident hallucinations with morphine, non-work-related health issues, as well as family and relationship stress. The Case Manager outlines there being a psychological worsening after becoming aware in 2016 that the surgeon being accused of murder prior to taking a two-week trip to Trinidad and Tobago in early 2020 for family-related matters. In the Case Manager’s opinion, the worker has several co-existing stressors which may be impacting them psychologically. Even so, I find that there is sufficient evidence that the treatment of the work-related injury is a significant contributing factor to the worker’s psychological condition.
The Case Manager’s memo of September 9, 2020 further documents the worker’s indication to the psychologist of having serious side effects from a ketamine infusion in 2015 and having symptoms of a stroke as a result of the spinal cord stimulator operations. The Case Manager indicates that these incidents and deteriorations are not accepted as part of the claim and that the objective medical information does not support any major issues with the spinal cord stimulator. Yet, I find that the Pain Management report of September 4, 2013 documents the potential side effects of the proposed ketamine infusion while the resulting operative report dated November 26, 2013 clearly describes the worker’s hallucinations and chest pain. A report from the Foot and Ankle Specialty Clinic dated December 10, 2013 verifies the bad reaction to the ketamine infusion, the rushing of the worker to the intensive care unit, and the continuing hallucinations from the ketamine.
Additionally, I must consider that the Pain Management report dated May 12, 2015 documents the details of the worker’s ketamine-related hallucinations. The Concurrent Mood and Anxiety Assessment report dated August 28, 2015 also notes the hallucinations from the ketamine infusion. I acknowledge that the next report from the Concurrent Mood and Anxiety clinic dated February 9, 2017 documents the worker’s distress learning of the surgeon being accused of murder. The worker began treatment with a psychologist at the Concurrent Mood and Anxiety clinic on March 30, 2017. A progress report dated June 5, 2017 outlines that the worker received treatment to address low mood, anxiety, and difficulty managing pain. The psychological treatment report dated December 19, 2019 confirms the unchanged diagnoses of somatic symptom disorder with predominant pain, major depressive disorder, and panic disorder.
I find it material that these psychological diagnoses do not change at the time of discharge in March 2020 due to the psychologist going on maternity leave. The Back and Neck Specialty Clinic’s psychological discharge report of May 12, 2020 provides detailed clinical findings in support of the same three unchanged diagnoses. Specifically, I observe that the report documents good premorbid functioning. The worker then began treatment with the current psychologist in the community on July 3, 2020.
In weighing the medical evidence, I find that only the most recent psychologist provides the diagnosis of PTSD. I am aware of the Case Manager’s discussion of September 15, 2020 with the treating psychologist who explains that the diagnosis of PTSD is based on the worker’s interpretation of the accident. However, the psychologist also indicates that validity testing was not performed as the assessment took place over videoconference. Importantly, I note that the psychologist verifies not having the prior psychological medical documentation. Additionally, I afford significant weight to the Back and Neck Specialty Clinic’s psychological discharge report of May 12, 2020 as this report is used within the NEL rating of the permanent psychological impairment.
To summarize, I accept that there is sufficient objective medical evidence to support that the diagnosis of panic disorder is clinically compatible as a reaction to the treatment process as required under Policies 11-01-01 and 15-04-02. I find it material that a Nurse Consultant authorized the ketamine infusions in September 2013. I also accept that the worker’s documented anxiety most appropriately falls under the diagnosis of panic disorder as suggested by the Concurrent Mood and Anxiety reports. Further, I find that there is insufficient validity testing to establish that the diagnosis of PTSD is related to the workplace injury. Therefore, it is my opinion that the expansion of psychological entitlement is limited to the diagnosis of panic disorder.
2) Psychological maximum medical recovery, restrictions, and level of impairment
I find that the worker is partially impaired psychologically as of the MMR date of February 26, 2021. I further find that psychological restrictions are in order.
Policy 11-01-05, Determining Permanent Impairment, defines the term maximum medical recovery (MMR) as a plateau in recovery at which point further significant improvement in the work-related injury is unlikely. Policy outlines that in order to determine that a permanent impairment exists, decision-makers must confirm that the ongoing impairment is a result of the work-related injury. Policy 19-02-07, RTW Overview and Key Concepts, requires that decision‑makers determine the worker’s functional abilities.
In the case before me, the current psychologist’s report dated February 26, 2021 suggests that the worker’s psychological limitations are to be permanent. The psychologist documents the recommendation of the worker not returning to work due to symptoms relating to PTSD, depression, and anxiety/panic. Still, for the reasons outlined above, I find that entitlement to PTSD is not in order. Therefore, I accept the following permanent psychological limitations provided in conjunction with the diagnoses of depression and anxiety/panic:
Avoid tasks involving immediate danger;
No tasks requiring a response to emergency/crisis; and,
No tasks involving immediate risk of injury to self or others due to slow movement, daytime fatigue and reduced attention.
I appreciate that the psychological report of February 26, 2021 does not support returning to work, including safe and sustainable occupational function. All the same, as I will discuss in more detail below, I find that the work-related psychological permanent impairment is best reflected within a mid-Class 3 (Moderate Impairment) which policy confirms relates to impairment levels compatible with some but not all useful function. On this basis, I am not persuaded that the work-related psychological impairment prevents the worker from gradually returning to safe and suitable duties within the accepted permanent limitations. Therefore, I find that the worker is partially impaired from a psychological standpoint as of the determined MMR date of February 26, 2021.
3) Non-economic loss rating of the permanent psychological impairment
I find that the rating for psychotraumatic disability impairment is to be increased from 15% to 30% in recognition of the work-related panic disorder.
Policy 18-05-03, Determining the Degree of Permanent Impairment, directs decision-makers to rate the total impairment to the area according to the prescribed rating schedule. Policy outlines that the degree of permanent impairment is to be expressed as a percentage of total impairment of the whole person by considering the health care information available in the claim file. I observe that the AMA Guides states that the diagnosis is not the sole criterion for assessing mental impairments (page 235). Rather, the AMA Guides (page 237) outlines four areas of functional limitation which are to be considered when rating mental impairments as follows:
Activities of daily living;
Social functioning;
Concentration, persistence and pace; and,
Adaptation to stressful situations.
Table 1 (AMA Guides, page 241) lists these four areas of function in association with five classes of impairment ranging from no impairment (Class 1) to extreme impairment (Class 5). While the AMA Guides does not outline specific rating ranges for any of the five classes, I note that Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders, provides rating ranges for mental and behavioural disorders for the same definitions of Classes 1 to 5. Policy 18-05-11 confirms that Class 2 (Mild Impairment, 5-15%) represents a degree of impairment of complex integrated cerebral functions that still permits the worker to carry out most activities of daily living as well as before the injury occurred.
By comparison, Class 3 (Moderate Impairment, 20-45%) involves a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. In the lower range of Class 3, the worker is still capable of looking after personal needs in the home environment but with time confidence diminishes and the worker becomes more dependent on family members in all activities. In the higher range of Class 3, a phobic pattern or conversion reaction will surface with some bizarre behaviour. There will be a tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.
It is my view that the addition of entitlement to the diagnosis of panic disorder requires an increase beyond a Class 2 (Mild Impairment) rating. The Back and Neck Specialty Clinic’s psychological discharge report dated May 12, 2020 documents problems with memory and concentration, avoiding going to the grocery store during busy hours, and struggling to leave the house many days due to fear of judgement or having a panic attack in public. That being said, the report confirms that there are no abnormalities in speech, thought process/content, or observed behaviour. The worker is also described as being oriented to person, place, time, and situation. While not tested at discharge, the worker’s anxiety scores were previously tested as being in the severe range.
Turning to the current psychologist’s report dated February 26, 2021, I observe the documentation of the worker’s loss of all social friends and co-workers since the accident. The treating psychologist indicates that the worker feels unsafe and does not have any interactions in their community. On the other hand, it is my view that a rating greater than 30% under Class 3 (Moderate Impairment) is not in order as there is insufficient evidence of the policy requirements relating to severe noise intolerance, a phobic pattern with bizarre behaviour, or severe psychomotor retardation. On this basis, I accept that a mid-range Class 3 (Moderate Impairment) rating under Policy 18-05-11 of 30% is the appropriate.
CONCLUSION
I conclude the following:
- The request for entitlement to generalized anxiety disorder and post-traumatic stress disorder (PTSD) is denied.
Entitlement is granted to the diagnosis of panic disorder.
- The worker reached psychological maximum medical recovery (MMR) on February 26, 2021.
The worker is partially impaired from a psychological standpoint and has the ability to return to suitable work on a graduated basis within the accepted permanent psychological restrictions of
o Avoiding tasks involving immediate danger;
o No tasks requiring a response to emergency/crisis; and,
o No tasks involving immediate risk of injury to self or others due to slow movement, daytime fatigue and reduced attention.
- The Non-economic loss (NEL) Clinical Specialist is requested to increase the rating for the permanent psychological impairment from 15% Class 2 (Mild Impairment) to 30% Class 3 (Moderate Impairment).
The worker’s objection is allowed in part.
DATED April 19, 2022
K. MacMillan
Appeals Resolution Officer
Appeals Services Division