APPEALS RESOLUTION OFFICER DECISION
decision number:
20220110
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer, self-represented
HEARING:
HEARING IN WRITING
HEARD by:
Stephanie Waters, appeals resolution officer
ISSUE
The worker objects to the Case Manager’s October 13, 2020 and April 30, 2021 decisions limiting entitlement to partial (not full) loss of earnings (LOE) benefits effective September 21, 2020.
BACKGROUND
An Appeals Resolution Officer (ARO) summarized the worker’s claim in a previous decision of January 5, 2021 when they determined the employer was entitled to 75% cost relief under the Second Injury and Enhancement Fund. As such, I will only provide a brief summary here to avoid repetition.
The worker’s date of hire was January 5, 2015. On September 24, 2018 while working as a registered nurse, this worker was working with an aggressive patient who pulled on their left arm multiple times causing a left wrist and elbow injury. The operating area granted entitlement for a left elbow repetitive strain injury and left wrist sprain. Entitlement was later extended to include psychotraumatic disability for the diagnosis of adjustment disorder with mixed anxiety and depressed mood.
The worker returned to modified duties with their employer until the worker stopped working on February 19, 2019 based on a recommendation from their family doctor. The worker began treatment for their compensable psychological condition with the WSIB Community Mental Health Program (CMHP) on May 9, 2019. The psychologist indicated the worker was unable to return to work at that time from a psychological perspective. On July 15, 2019, the case manager concluded the worker was totally disabled and unable to return to work from a psychological perspective. As a result, the worker received full LOE benefits from February 19, 2019 ongoing.
The worker continued to attend weekly in-person sessions with the CMHP psychologist, who maintained that the worker was unable to return to work due to their compensable psychological condition and symptoms. The worker also attended a virtual assessment with a specialty clinic psychologist on January 21, 2020. In reports dated January 21, 2020 and March 6, 2020, the specialty clinic psychologist concluded the worker could return to work on a graduated basis from a psychological perspective, but recommended additional psychological treatment prior to returning to work. On July 10, 2020, a specialty clinic doctor and occupational therapist concluded the worker could return to work with restrictions for their physical injuries.
Based on these medical reports, the Case Manager determined the worker was partially impaired and capable of modified work due to their physical and psychological conditions. A Return to Work Specialist (RTWS) then met with the worker and employer on September 9, 2020 to review suitable work options. The RTWS developed a graduated return-to-work plan with modified duties and hours to begin on September 21, 2020. The worker stated they felt unable to return to work due to their psychological condition and remained off work. In a letter dated October 13, 2020, the Case Manager reduced the worker’s LOE benefits from full to partial effective September 21, 2020 based on the RTWS’s September 2020 return-to-work plan. The worker’s representative objected to this decision.
The worker continued to participate in psychological treatment through the CMHP, who provided updated diagnoses on November 26, 2020. The Case Manager updated psychological entitlement in the claim to include the diagnosis of major depressive disorder. On January 21, 2021, the CMHP psychologist stated the worker had improvement in their compensable condition and was now capable of returning to work with ongoing psychological treatment during the return-to-work process. When speaking to the Case Manager on February 9, 2021, the employer confirmed the previously-offered modified work was no longer available.
The RTWS met with the worker and employer again on March 8, 2021, and developed a return-to-work plan with modified duties and hours to begin on March 15, 2021. The worker returned to work on March 15, 2021 based on this plan. On April 30, 2021, the Case Manager reviewed the worker representative’s objection to the October 13, 2020 decision. The Case Manager confirmed their decision that the September 2020 modified work was suitable for the worker’s physical and psychological conditions, and the worker would only receive partial LOE benefits effective September 21, 2020.
In additional letters on April 30, 2021, the Case Manager determined the worker’s physical and psychological conditions fully recovered without any residual impairment by February 2021. The Case Manager also determined the worker’s entitlement to LOE benefits would end as of April 30, 2021 following a six-week graduated return to pre-injury duties.
The worker’s representative objected to the October 13, 2020 and April 30, 2021 decisions denying entitlement to full LOE benefits as of September 21, 2020 and submitted an Appeal Readiness Form.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
January 2, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker is entitled to full LOE benefits from September 21, 2020 up to March 15, 2021 when they returned to work.
The worker’s appeal is allowed.
Worker’s Position
The worker’s representative stated they are seeking entitlement to full LOE benefits from September 21, 2020 until the worker returned to work on March 15, 2021. It is the worker representative’s position that the worker was fully cooperative in their treatment and medical reports on file support the worker was not able to return to work until March 2021. The worker’s representative also argued the CMHP medical reports should be given more weight than the specialty clinic psychologist report regarding the worker’s ability to return to work. The representative argued the CMHP practitioners treated the worker on a regular basis, whereas the specialty clinic report was based on a one-hour assessment with a practitioner the worker found difficult to communicate with.
Employer’s Position
The employer returned the Respondent Form on March 22, 2022. They did not provide any specific arguments regarding the issue under appeal.
Assessment of Entitlement
It is the worker representative’s position that the worker is entitled to full LOE benefits from September 21, 2020 until March 15, 2021. The employer did not state a specific position regarding the issue. Information on file supports the worker representative’s position. When making my decision, I considered the policy that explains when full LOE benefits may be paid.
Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits beginning when the loss of earnings begins. The policy adds:
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 process.
Briefly, this means that I can only grant entitlement to full LOE benefits when medical evidence supports the worker’s compensable conditions prevented them from returning to any type of work, or when medical evidence indicates the worker could return to some work but no suitable work is available. For the reasons that follow, I find the worker is entitled to full LOE benefits from September 21, 2020 up to March 15, 2021 when they returned to work.
The RTWS developed a return-to-work plan with the worker and employer to begin on September 21, 2020. The employer offered modified work including COVID-19 screening of staff members and computer training courses, which would require limited hand use. The worker would be acting as an “extra” and could take breaks as needed. The return-to-work plan involved three shifts per week with hours gradually increasing from four hours per shift to eight hours per shift.
In terms of the worker’s compensable physical injuries to their left wrist and elbow, I find medical evidence consistently indicates the worker was capable of resuming modified work with functional limitations. On July 10, 2020, a specialty clinic doctor and occupational therapist concluded the worker should avoid lifting, pushing, and pulling over 5kg, ladder climbing, repetitive or sustained gripping or pinching with the left hand, left-sided pronation and supination, and should take breaks as needed. These restrictions remained relatively consistent until a kinesiologist documented that the worker did not have any physical restrictions and would benefit from a graduated turn to work in a Functional Abilities Form dated February 18, 2021.
Considering the above, I find medical evidence supports the nature or seriousness of the worker’s wrist and elbow injuries did not completely prevent them from returning to any type of work, including the available modified work, as of September 21, 2020 and ongoing.
In terms of the worker’s compensable psychological condition, I find the balance of medical evidence establishes the nature and seriousness of this condition completely prevented the worker from returning to any type of work from September 21, 2020 until January 20, 2021. I find medical evidence indicates the worker was able to return to some form of work as of January 21, 2021 from a psychological perspective, but no suitable work was available until March 15, 2021.
I note that four separate medical practitioners provided differing opinions regarding the worker’s ability to resume work based on their psychological condition. These included opinions from the CMHP psychologist and psychotherapist, from the specialty clinic psychologist, and from the worker’s family doctor. I will briefly summarize the opinions provided by each of these clinicians before continuing with my analysis.
Medical evidence from the CMHP psychologist and psychotherapist.
The worker attended an initial CMHP assessment on May 9, 2019. The clinicians determined the worker’s mental health was too fragile to return to work at the time. The clinicians stated the worker needed to regain social and mental functioning, self-esteem, self-worth, and adjust to their losses before they could safely return to work because struggling to perform their duties would exacerbate the worker’s mental health symptoms.
This remained the conclusion and advice of the CMHP clinicians on an ongoing basis while the worker attended weekly in-person treatment. In October and November 2019, the clinicians indicated the worker was having difficulty with regulating their emotions and symptoms of anxiety, depression, and panic attacks. On November 7, 2019, these clinicians authored a letter to WSIB staff restating the worker had an ongoing psychological injury not sufficiently resolved for return-to-work-focused counselling, and the worker was not ready to return to work. The clinicians provided the rationale that “pushing through” would likely result in another unsuccessful return-to-work and a compounding of the worker’s psychological injury requiring additional treatment.
The worker continued to participate in treatment with the CMHP clinicians, though sessions switched to a telephone and virtual platform in April 2020 due to COVID-19. From January until November 2020, the clinicians documented the worker was progressing with treatment but remained unable to return to work and continued to experience symptoms of anxiety, depression, and panic attacks. The psychologist and psychotherapist concluded the worker would not have a safe, successful, or effective return to work if they attempted to return before addressing their cognitive beliefs about an unsafe workplace. The clinicians also stated a premature return to work posed a serious risk to the worker’s psychological well-being because it could aggravate the worker’s psychological condition and lead to further decompensation.
On January 21, 2021 and February 25, 2021, the clinicians documented a significant improvement in the worker’s psychological condition and symptoms. As a result, the clinicians concluded the worker could return to safe and sustainable occupational function with ongoing psychological support during the return to work process to prevent psychological decline should difficulties arise during this adjustment period. The clinicians noted some injury-related involuntary triggers may occur during the return to work process that may require treatment if psychological symptoms re-emerged. The CMHP psychologist and psychotherapist recommended a gradual return to work, ideally in a position within the nursing profession, with psychological treatment as needed during the process.
Medical evidence from the specialty clinic psychologist.
The worker attended a virtual assessment with a specialty clinic psychologist on January 21, 2020. In the subsequent report, the psychologist documented that each confrontation the worker has with their limitations from their compensable injuries feeds their frustration, sadness, and anxiety. As a result, the worker’s psychological symptoms worsened when they previously attempted to return to work.
The psychologist concluded the worker’s depressive and anxiety symptoms would likely significantly increase and result in another failed return to work. The psychologist suggested approximately four psychological sessions to modify the worker’s mindset and future objectives before any return to work. The clinician also indicated the worker gave birth 10 days prior and was therefore not close to going back to work.
The psychologist provided an addendum report on March 6, 2020 after the WSIB requested clarification regarding the worker’s psychological limitations and accommodations as related directly to the workplace injury. The psychologist provided the opinion that the worker would be able to return to work on a graduated basis from a psychological perspective if not for their maternity leave. The psychologist clarified that they recommended 4-6 psychological treatment sessions to address psychological barriers prior to initiating any return to work. The psychologist explained that the worker’s psychological condition would make it difficult for them to fully return to work prior to being emotionally prepared.
The psychologist provided the following restrictions/limitations to apply once the worker returned to work in a graduated capacity:
- Avoid positions, tasks, and demands where there are time-sensitive pressures and where the worker’s inability to perform job tasks within a required timeline may put others at risk;
- Consider colleague-supported shifts initially due to intermittent psychological support required;
- A graduated return-to-work schedule with half-shifts on every other day to acclimatize to the stressors and demands of the workplace given the worker’s length of time off work;
- Gradually return to pre-injury duties after 4-6 weeks of accommodated duties pending an opinion from the worker’s treatment team.
Medical evidence from the family doctor.
The family doctor spoke with the case manager via telephone on September 17, 2020. The doctor stated the worker was struggling but the doctor did not receive regular updates. The doctor explained the worker was not very forthcoming about their situation with them because the worker was addressing their issues with the CMHP provider. The doctor stated the worker was overwhelmed with the thought of returning to work in a few days (on September 21, 2020), was grieving not returning to their pre-injury job, and may have non-compensable issues preventing them from returning to work in a few days (such as childcare or an ill family member). The doctor supported that the worker needed to go back to work, but indicated they would consider if they agreed with the return to work date of September 21, 2020.
On September 22, 2020, the family doctor submitted a letter to the WSIB. The doctor provided the opinion that the worker would likely benefit from a return to accommodated and graduated work soon, but a return to work in September 2020 would be unsuccessful and significantly harmful to the worker’s health. The doctor recommended the worker remain off work until they received additional treatment intervention.
I find the worker is entitled to full LOE benefits from September 21, 2020 up to March 15, 2021.
I considered all of the medical evidence on file when making my decision. I awarded the most weight to the medical reports provided by the CMHP psychologist and psychotherapist for multiple reasons. A multidisciplinary team of medical professionals specializing in psychological treatment and recovery collaboratively developed these conclusions and recommendations. These clinicians also reached their conclusions based on weekly in-person and then virtual assessments of the worker’s psychological condition and symptoms for an extended period from May 2019 until February 2021. I find this allowed the clinicians to obtain a detailed and holistic understanding of the worker’s progress and abilities throughout the treatment period.
By comparison, the specialty clinic psychologist provided their conclusions and recommendations based on an approximately one-hour virtual assessment with the worker. The worker and their representative also raised concerns about this assessment because it was over the computer, the practitioner had a strong accent, and the worker’s husband remained in the room throughout. The worker’s representative argued this made it difficult for the worker to understand the practitioner or go into detail about their psychological health.
Additionally, the family doctor does not specialize in psychological conditions, limitations, or treatment. The family doctor also clarified that their opinion was based on limited knowledge and understanding about the worker’s current psychological situation since the worker did not update them regularly. This appears to be the case since the doctor indicated childcare issues may prevent the worker from returning to work, but the worker previously informed the case manager on July 17, 2020 that their new child was not a barrier for their return to work.
I will also highlight that these medical opinions remain relatively consistent despite differing somewhat in terms of determining when the worker could resume work. Specifically, all of the medical professionals concluded the worker required additional psychological treatment before initiating return to work, and a subsequent graduated return to work. The clinicians also opined that an immediate return to work would be harmful to the worker’s psychological condition and progress. This includes the specialty clinic psychologist who stated the worker could return to graduated work from a psychological perspective, but concurrently concluded any return to work would likely be unsuccessful without additional treatment to address psychological barriers and emotionally prepare the worker before this return.
For these reasons, I accepted the conclusions and recommendations of the CMHP clinicians that the nature and seriousness of the worker’s compensable psychological condition prevented them from returning to any type of work between September 21, 2020 and January 20, 2021. I find the balance of medical evidence on file supports these conclusions as discussed in detail above.
I acknowledge the January 21, 2021 CMHP progress report cleared the worker to resume modified work on a gradual basis from a psychological perspective. However, I note the case manager spoke with the employer on February 9, 2021. During this call, the employer confirmed the modified work previously identified and offered to the worker in September 2020 was no longer available. The March 8, 2021 RTWS plan indicates that modified work with graduated hours became available to the worker again as of March 15, 2021. Considering the above, I find medical evidence establishes the worker was capable of some work due to their physical and psychological conditions as of January 21, 2021, but suitable work was not available until March 15, 2021.
In summary, I find the worker was capable of some work on an ongoing basis due to their physical injuries. I find the nature and seriousness of the worker’s psychological injury prevented them from returning to any work from September 21, 2020 until January 20, 2021. I find there was no suitable work available from January 21, 2021 until March 15, 2021 even though the worker was capable of some work due to their physical and psychological conditions during this time. I am able to determine the worker experienced a loss of earnings due to their work-related injuries from September 21, 2020 until they returned to suitable and available modified work on March 15, 2021. As such, I find the worker is entitled to full LOE benefits during this period.
CONCLUSION
I find the worker is entitled to full LOE benefits from September 21, 2020 up to March 15, 2021 when they returned to work.
The worker’s appeal is allowed.
DATED August 18, 2022
Stephanie Waters
Appeals Resolution Officer
Appeals Services Division