Appeals Resolution Officer Decision
Decision Number: 20220083
Objecting Party #1: worker Represented by: WORKER REPRESENTATIVE
Objecting Party #2: EMPLOYER Represented by: EMPLOYER REPRESENTATIVE
Hearing: HEARING IN WRITING
Heard by: l. diaz, appeals resolution officer Dated: JUNE 17, 2022
ISSUES
The worker objects to the following:
the September 1, 2021 decision which granted initial entitlement to Psychotraumatic Disability for Major Depressive Disorder and which indicated that a decision on entitlement to a permanent impairment for Psychotraumatic Disability would be deferred pending receipt of the requested medical information;
the Case Manager’s November 2, 2021 decision which denied entitlement to full LOE benefits from August 4, 2021 to September 1, 2021; and,
the Case Manager’s December 3, 2021 Case Manager’s decision which denied entitlement to loss of earnings (LOE) benefits from August 20, 2020 until May 2, 2021.
BACKGROUND
The history of this claim has been reviewed in two prior appeals decisions and will therefore not be repeated at length in this decision. Briefly, on November 16, 2018, while employed as a Manager, the worker was moving a box from the back of a skid when they turned their body, injuring their left knee and right ankle.
Entitlement in the claim was accepted for a right ankle sprain and neuropraxia, and a left knee sprain. The diagnoses of right ankle chondrosis and left knee chondrosis (with patellofemoral inflammation) were denied by the Case Manager in an October 28, 2019 decision. The worker did not initially lose time from work as they returned to modified duties.
Full LOE benefits were paid from December 2, 2019 until December 20, 2019 as it was determined the worker was temporarily totally impaired during this period as a result of receiving nerve block injections. The Case Manager denied entitlement to LOE benefits from January 22, 2020 on the basis that suitable work had been offered to the worker.
In a September 8, 2020 decision, an Appeals Resolution Officer (ARO) concluded the worker did not have entitlement to right ankle chondrosis and left knee patellofemoral inflammation as these conditions were degenerative in nature and were not compatible with the accident history in the claim.
Further to the May 28, 2021 decision, the Case Manager concluded the worker had reached Maximum Medical Recovery (MMR) for their injuries, without a permanent impairment for the knee and ankle strains. The Case Manager determined the worker reached MMR for their right ankle neuropraxia, with a related permanent impairment evident. Permanent restrictions for the right ankle, as noted in the May 28, 2021 decision, included: walking up to 100 metres on an occasional basis; standing 15-30 minutes; sitting up to 20 minutes; stair climbing 5-10 steps with railing on occasional basis; lifting floor to waist up to 15 lbs occasionally; lifting waist to shoulder up to 22.5 lbs occasionally; lifting above shoulder negligible weight; pushing/pulling 0-5 kg; no ladder climbing; ability to drive up to 20 minutes at any one given time; able to use public transit; requires ability to use single point cane to assist with standing tolerance; avoid carrying bilaterally; change positions as needed; and, able to crouch on rare a basis.
According to the July 13, 2021 Case Manager’s decision, the worker was paid full LOE benefits effective May 3, 2021 as it was determined the employer was unable to accommodate the worker’s physical restrictions.
In a subsequent September 1, 2021 decision, the Case Manager granted temporary entitlement for Psychotraumatic Disability, with the accepted diagnosis of Major Depressive Disorder. Entitlement to Chronic Pain Disability (CPD) was denied on the basis there were no provisions to adjudicate a chronic pain disability when a psychotraumatic disability is approved. This decision also noted that a decision on a related permanent impairment would not be provided until the WSIB received the previously requested 5 years prior medical information, as the evidence supported a symptomatic pre-existing psychological condition which may have started prior to September 6, 2018.
The file information confirms that on September 1, 2021, the worker’s employment with their employer ceased, pursuant to a negotiated settlement.
On September 24, 2021, the worker received a 6% Non-Economic Loss (NEL) benefit for their right ankle permanent impairment.
The Case Manager’s November 4, 2021 decision concluded the worker would only be entitled to partial LOE benefits from August 4, 2021 onwards as the employer had offered the worker the alternate suitable work of Customer Service Representative at a reduced hourly rate. It was noted the WSIB Return to Work Specialist (RTWS) had confirmed this position adhered to the worker’s permanent physical precautions.
In a November 30, 2021 decision, an ARO concluded the worker did not have a permanent impairment in relation to the right ankle sprain and left knee sprain.
On December 3, 2021, the worker spoke with their Case Manager, requesting entitlement to LOE benefits from August 2020 until May 2, 2021. According to the December 3, 2021 decision, the Case Manager denied entitlement to LOE benefits during this period as the evidence supported the worker had not been available to work.
In summary, the issues which will be reviewed in this decision include: the September 1, 2021 decision which granted entitlement to Psychotraumatic Disability on a temporary basis; the November 4, 2021 decision which determined the worker was not entitled to full LOE benefits as the alternate position of Customer Service Representative was suitable; and, the December 3, 2021 decision which denied entitlement to LOE benefits from August 20, 2020 until May 2, 2021.
Worker’s position
The worker’s representative argued the worker should receive permanent entitlement to Psychotraumatic Disability, and not entitlement to Psychotraumatic Disability on a temporary basis. The worker’s representative indicated that information from the worker’s physician confirmed the absence of any pre-existing psychological issues. It was their position that the worker’s psychological condition was a major barrier to the worker returning to work, and that the worker was competitively unemployable due to their significant psychological impairment. As a result, they contended the worker should receive full LOE benefits.
Employer’s position
The employer’s representative maintained the worker had active psychological diagnoses prior to the injury under the claim, and that entitlement to Psychotraumatic Disability must be limited to a temporary aggravation basis. With respect to payment of LOE benefits, it was the employer’s representative’s position that following the worker’s refusal to return to work in January 2020, the worker first provided readiness to return to work effective May 2, 2021, and that LOE benefits are only properly payable from that date forward. However, when an alternate suitable position was offered to the worker in the summer of 2021, the worker refused to return to this suitable position. As a result, the employer’s representative maintained that LOE benefits were appropriately denied for the periods of time in question.
AUTHORITY
Operational Policy Manual Published
11-01-02, Decision-Making October 12, 2004
11-02-02, Lost Time Claims April 9, 2011
ANALYSIS
1. Entitlement to Psychotraumatic Disability on a permanent basis
I find the worker must provide the requested medical information to the WSIB prior to a decision being rendered on entitlement to Psychotraumatic Disability on a permanent basis under the claim. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and the applicable Policy.
Policy 11-01-02, Decision-Making, records the following in part:
Guidelines
Information required to make decisions
Under the Act, workers, employers, and health care practitioners must provide the WSIB with information for the purpose of determining entitlement to benefits. …
Entitlement decisions
In the absence of
information from the worker, the WSIB makes an entitlement decision using information from the employer, and clinical information. If the information is insufficient to make a decision, the WSIB contacts the worker requesting more information. If there is no response, the WSIB makes a decision that the worker has abandoned the claim
information from the employer, the WSIB makes an entitlement decision using worker and clinical information
information from the health care practitioner, an entitlement decision is made using information from the worker and employer, with advice from WSIB medical consultants
information from the worker and employer, an entitlement decision cannot be made
information from the employer and health care practitioner, an entitlement decision can be made using the worker information with advice from WSIB medical consultants, or
any other requested information, a decision to allow, deny, or abandon the issue can be made with available evidence on file.
The worker’s representative argued, in part, that the worker’s physician confirmed the absence of any pre-existing psychological issues. In addition, the worker’s representative indicated that entitlement to Psychotraumatic Disability should have been accepted on a permanent basis, and not only on a temporary basis. It was their view that the worker’s psychological condition was a major barrier to the worker returning to work.
The issue of the manner in which entitlement to Psychotraumatic Disability was accepted, i.e. on a temporary basis or on a permanent basis, is directly tied to whether the worker was symptomatic from a psychological perspective prior to the injury under the claim. The employer contended that entitlement to Psychotraumatic Disability ought to have been granted on an Aggravation Basis, and limited, based upon the pre-injury clinical notes submitted to file.
Although the worker reported to the X Health assessors, as is noted in the May 13, 2021 Psychological Treatment Discharge report and in prior reports, that they were functioning properly prior to the index injury, with no active psychological symptoms immediately before the index accident, several clinical notes submitted by the worker’s physician contradict this position.
The worker sustained a workplace injury on November 16, 2018. However, Dr. Rizk, provided October 25, 2018, October 11, 2018, and September 6, 2018 clinical notes which confirmed the worker was experiencing active depressive and anxious symptoms. Several X Health reports, i.e. August 15, 2019, September 24, 2019, January 22, 2020, document the worker had been prescribed Zopiclone (1-2 years prior to the injury), and Escitalopram (September 2018, used to treat anxiety and depression) prior to their injury under the claim.
The October 25, 2018 clinical report confirmed the worker was also prescribed Cipralex (used to treat depression, anxiety, and major depressive episodes). This clinical note confirmed the worker was experiencing the following symptoms: difficulty maintaining sleep; decreased appetite; anhedonia; difficulty concentrating; psychomotor retardation; decreased energy level; past history of Major Depressive Disorder/depression; self-care difficulties; had Generalized Anxiety Disorder; had a flat/blunted affect; diminished concentration and insight; had an emotionally depressed status; had thought disorders and delusions; had Major Depressive Disorder; had Adjustment Disorder with depressed mood; had Anxiety Disorder with depressed mood; was referred to a Psychotherapist, Psychiatrist, and Social Worker; was prescribed SSRI (selective serotonin reuptake inhibitor).
The above clinical note was similar to the October 11, 2018 and September 6, 2018 clinical notes in terms of the worker’s psychological symptoms. Furthermore, I note Dr. Rizk provided the worker with a September 6, 2018 medical note which indicated the worker would be absent from work due to medical reasons for approximately three weeks. In light of the clinical note of September 6, 2018 confirming a psychological impairment for which the worker was absent from work, and given that there are no submitted medical reports on or around that date related to an organic impairment, the worker’s absence from work for the three weeks in September 2018 would therefore reasonably be attributed due to their psychological impairment.
Although the worker’s representative indicated in their submission that information from the worker’s physician confirmed the absence of any pre-existing psychological issues, I must respectfully disagree based upon the few clinical notes which were actually submitted to file for review. I acknowledge Dr. Rizk submitted an October 29, 2020 note to file which records that the worker was never referred to Psychiatric service or Psychotherapy/Psychologist prior to November 16, 2018, however, this does not mean the worker was not suffering from a psychological impairment prior to their injury under the claim.
Unfortunately, despite the Case Manager requesting 5 years of medical information prior to the injury under the claim, only a limited number of clinical records were submitted to file from March 2018 until October 2018 – there were no medical records submitted prior to March 2018. The file record confirms the worker has been under the care of Dr. Rizk for a number of years, and that 1-2 years prior to their injury under the claim they were prescribed Zopiclone, which can be used to treat both insomnia and anxiety. Dr. Rizk also confirmed in the October 2018 clinical notes that the worker had a past history of Major Depressive Disorder and depression.
Policy 11-01-02, Decision-Making specifies that “In the absence of information from the worker.. If the information is insufficient to make a decision, the WSIB contacts the worker requesting more information. If there is no response, the WSIB makes a decision that the worker has abandoned the claim”, and “In the absence of … Information from the worker and employer, an entitlement decision cannot be made”.
Given that the requested medical information has not been received, and that the information is entirely relevant to determining the nature and extent of entitlement to Psychotraumatic Disability, I find it is appropriate that no further action on this particular issue is taken at the present time. Entitlement to Psychotraumatic Disability on a permanent basis is therefore denied.
Although the employer’s representative argued that entitlement to Psychotraumatic Disability ought to have been accepted on an aggravation basis, this is presently not an issue in dispute, is not an issue which has been appealed, and is therefore not properly before me for review.
2. Entitlement to full LOE benefits from August 4, 2021 and September 1, 2021
I find the worker is not entitled to full LOE benefits from August 4, 2021 until September 1, 2021. In arriving at this decision, I had regard for the arguments presented, the file information, and the applicable Policy.
As was noted earlier, the file information confirms that on August 4, 2021, the employer offered the worker the alternate position of Customer Service Representative, at a reduced hourly rate of $xx.xx per hour. The Case Manager paid the worker partial LOE benefits based upon the difference between $xx.xx and their pre-injury wages. The worker did not return to work and they are requesting entitlement to full LOE benefits during this period of time.
Policy 11-02-02, Lost Time Claims, records the following in part:
Total disability/impairment
While the worker is unable to perform any type of work, the WSIB issues wage loss benefits or loss of earnings benefits. The WSIB monitors the claim through the use of progress reports, which are reviewed as often as the severity of the injury dictates to ensure the worker is recovering as expected.
Return to work (RTW)
The WSIB determines, through the review of clinical information, when a worker is fit to go back to their pre-injury work, or suitable and available work.
If the worker is only able to do work that is available at a partial loss of wages/earnings, the worker may be entitled to a partial wage loss benefit or a partial loss of earnings benefit.
I note the worker’s representative did not make any arguments in relation to the suitability of the Customer Service Representative position offered to the worker during this period of time. As a result, I will make no findings on this particular issue.
Rather, the worker’s representative argued that the worker was competitively unemployable due to their combined psychological and organic impairments. I will therefore review the issue of the worker’s entitlement to LOE benefits based upon their level of impairment.
With respect to the worker’s organic condition, the file evidence confirms the worker received a 6% NEL benefit on September 24, 2001. The accepted permanent restrictions for the right ankle, as noted earlier, include the following: walking up to 100 metres on an occasional basis; standing 15-30 minutes; sitting up to 20 minutes; stair climbing 5-10 steps with railing on occasional basis; lifting floor to waist up to 15 lbs occasionally; lifting waist to shoulder up to 22.5 lbs occasionally; lifting above shoulder negligible weight; pushing/pulling 0-5 kg; no ladder climbing; ability to drive up to 20 minutes at any one given time; able to use public transit; requires ability to use single point cane to assist with standing tolerance; avoid carrying bilaterally; change positions as needed; and, able to crouch on a rare basis.
In summary, having reviewed the worker’s permanent restrictions in relation to their right ankle impairment, I find the evidence supports the worker is partially impaired, and capable of work within the recommendation permanent restrictions.
Although the worker’s representative argued that the worker was also competitively unemployable from a psychological perspective, I find the file medical information does not support this position. Specifically, the X Health Psychology Treatment Discharge report of May 13, 2021 confirmed that although the worker demonstrated and reported various symptoms of depression and anxiety with some ability to cope with them, on Section I of this report, it is documented that the worker’s ‘current mental health problems do not seem to cause any restrictions for RTW”.
As a result, having regard for the relevant file medical reports, and in considering Policy 11-02-02, Lost Time Claims, as the evidence does not support the worker is incapable of performing any kind of work, that the worker is in fact able to perform suitable work, I therefore conclude the worker is not entitled to full LOE benefits from August 4, 2021 until September 1, 2021.
3. Entitlement to full LOE benefits from August 20, 2020 until May 2, 2021
I find the worker is not entitled to full LOE benefits for the above period. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and for the applicable Policy.
I note the worker’s representative did not distinguish between the two periods of time for which the worker was requesting entitlement to LOE benefits insofar as their arguments, i.e. the arguments for entitlement to LOE benefits for the two periods of time in question were the same. Briefly, the worker’s representative argued that the worker was competitively unemployable due to their combined psychological and organic impairments. The worker’s representative did not make any arguments in relation to the suitability of the work provided to the worker, and as a result, I will once again make no findings on this particular issue.
The policy which would therefore apply with respect to reviewing entitlement to LOE benefits from August 20, 2020 until May 2, 2021 is policy 11-02-02, Lost Time Claims, which was referenced above.
The issue of the worker’s level of impairment related to their organic impairment was already reviewed earlier. I note the worker reached Maximum Medical Recovery (MMR) for their right ankle permanent impairment in March 2021, which is not in dispute. Having carefully reviewed the X Health Lower Extremity Specialty Program report findings from August 5, 2020 onwards, I find that the worker’s physical restrictions essentially remained unchanged compared to the March 2021 report when the worker reached MMR. By March 2021, the evidence supports the worker had not made any significant recovery in their right ankle condition, hence the provision of a NEL benefit.
With respect to the worker’s psychological functioning from August 2020 until May 2021, the August 5, 2020 X report essentially noted that the worker reported the reason they had not returned to work was due to their PTSD and psychological functioning.
The September 21, 2020 Psychology Treatment report confirmed the diagnoses of Major Depressive Disorder and Somatic Symptom Disorder with Predominant Pain. Page 5 of the report also confirmed a history of depression when the worker was under 18 years of age, with attempted injurious behaviour. Although the worker advised the assessors that they had been functioning properly prior to the injury under the claim, I do not find the pre-injury clinical notes submitted to file support this position. With respect to return to work considerations, the report supports that there did not seem to be a significant psychological barrier to return to work, that the worker’s concerns were largely in relation to returning to a physically demanding job with difficult tasks.
In summary, having regard for the relevant medical reports, and in considering Policy 11-02-02, Lost Time Claims, I find the evidence supports the worker was partially impaired and capable of performing suitable work within their physical precautions. I find the file medical evidence does not support any psychological restrictions with respect to a return to work. In light of the fact that the worker remained partially impaired, I therefore conclude the worker is not entitled to full LOE benefits from August 20, 2020 until May 2, 2021.
CONCLUSION
I conclude the following:
Entitlement to Psychotraumatic Disability on a permanent basis is denied. Given that the requested medical information has not been received, and that this information is entirely relevant to determining the nature and extent of entitlement to Psychotraumatic Disability, I find it is appropriate that no further action on this particular issue is taken at the present time.
The worker is not entitled to full LOE benefits from August 4, 2021 until September 1, 2021.
The worker is not entitled to full LOE benefits from August 20, 2020 until May 2, 2021.
The worker’s objection is therefore denied.
DATED June 17, 2022
L. Diaz Appeals Resolution Officer Appeals Services Division