DECISION NUMBER:

20230114

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

REPRESENTED by:

NONE

HEARING:

VIDEO CONFERENCE

HEARD by:

H. MOHAMED, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES:

DATED:

INTERPRETER

JULY 31, 2023

ISSUES

The worker representative (WR), on behalf of the worker, objects to the Case Manager’s (CM) decision dated February 28, 2023, which denied entitlement to psychotraumatic disability.

BACKGROUND

On January 20, 2020, this packaging labourer was seated at the table sealing boxes when a forklift hit the table causing the table to strike the worker’s right knee. The worker sought medical attention the same day and was diagnosed with a right knee contusion. X-rays were ordered and the worker was advised to remain off work due to difficulty walking. The worker commenced a program of care (POC) with a chiropractor on January 27, 2020. The diagnosis was a right knee sprain/strain.

The worker remained off work following the injury and received loss of earnings (LOE) benefits. However, in a decision dated March 31, 2020, the CM determined the worker would not be paid any LOE benefits after February 15, 2020, because the worker was deemed partially disabled and capable of returning to sedentary modified duties after that date. The WR objected to this decision arguing the worker was unable to work in any capacity and submitted a medical certificate from the worker’s family

physician dated April 27, 2020, indicating that the worker was unable to work due to the physical injury as well as anxiety and stress.

In a decision dated April 8, 2021, an Appeals Resolution Officer (ARO) upheld the CM’s decision that the worker was partially disabled due to the right knee injury and capable of performing modified work.

However, the ARO made no findings of the worker’s psychological condition noting that entitlement for any psychological issues had not been accepted.

Following the ARO decision, the WR requested entitlement to right knee permanent impairment. The request was denied by the CM and upheld by another ARO in a decision dated May 27, 2022. The ARO

determined that the worker had achieved a full recovery for their right knee injury by February 20, 2020, with no evidence of a permanent impairment.

In September 2022, the WR requested entitlement to psychotraumatic disability. In a decision dated February 28, 2023, the CM noted that the first mention of any psychological issues was documented in the medical records on April 30, 2020. Since the worker’s psychological condition developed after they had already achieved a full recovery for their right knee injury, it could not be reasonably concluded that the workplace injury had caused the worker’s psychological condition. The WR has objected to this decision.

Accordingly, the only issue to be determined in this appeal is whether the worker has entitlement to psychotraumatic disability.

AUTHORITY

Operational Policy Manual Published

15-04-02 Psychotraumatic Disability September 7, 2018

ANALYSIS

For the reasons that follow, I find the worker does not have entitlement to psychotraumatic disability under this claim. I have reached this conclusion based on the worker’s testimony, the submissions provided by the WR, the case record as well as the relevant Operational Policies. The employer chose not to participate in the appeals process.

Key portions of the worker’s testimony, which were provided through an interpreter, can be summarized as follows:

• On the date of accident, the worker said they were sitting at a table packing juice boxes. The worker said there was another line in front of them where a forklift driver was picking up some boxes. The worker said they could see that the forklift driver was not paying much attention and was not looking back while reversing. As a result, the worker said the forklift struck the table they were working on and a wooden bar underneath the table struck them on their right knee. The worker confirmed they did not fall off their chair, but the impact caused the chair to move back a little. The worker confirmed they injured their right knee only. They did not suffer any back injury due to the accident.

• The worker confirmed they went to the emergency department the same day and were diagnosed with a right knee contusion. The worker confirmed pain medications were prescribed.

• The worker testified they did not return to work after the injury and they have continued to have ongoing knee pain since the accident for which they take pain medications. The worker said they have also developed sleep issues due to ongoing pain.

• The worker has not seen any specialist regarding their knee injury and nor have they had any injections or surgery.

• The worker acknowledged a pre-accident history of psychological issues. The worker testified they developed depression/anxiety following the death of their three young children due to the tsunami in Country X. However, the worker claimed that they received adequate psychological counselling and therapy in Country X. The worker said their psychological issues had resolved by the time they migrated to Canada in 2008.

• The worker denied having any psychological issues or problems between 2008 and January 2020 (date of accident).

• The worker said they developed depression about one week after the accident. The worker testified the depression was caused by the significant pain they were experiencing after the accident. The worker said their family physician (Dr. Sivakumar) recommended they stay off work due to pain and psychological issues. The worker said approximately one week after the injury their spouse, who also worked with the accident employer, stopped working so they could take care of the worker.

• The worker said their post-accident psychological issues were not caused or impacted by their non-compensable back pain. The worker said that all issues were related to the right knee.

• The worker said they continued to report their psychological issues to Dr. Sivakumar in the weeks after the accident. As a result, they were referred to Dr. Rajendra, psychiatrist. The worker said they initially saw Dr. Rajendra on a monthly basis but over time the visits dropped to once every two months and now it is once every three months. However, the worker said Dr. Rajendra had recently increased the dosage of their psychological medications.

• The worker testified their psychological condition has worsened despite treatment. The worker denied any improvement. The worker said they have recurring dreams of the forklift striking them. However, the worker denied having any traumatic dreams related to the tsunami or loss of their children. The worker said they did initially have nightmares related to the tsunami, but this resolved after they completed their treatment in Country X. The worker said they no longer socialize or go out due to pain and psychological issues. The worker said they also had a recent suicide attempt.

The WR essentially submitted that while the worker had pre-existing psychological issues due to the loss of their three children following a tsunami in Country X, the worker’s condition significantly improved and they were not having any psychological issues prior to the workplace accident. The worker was able to work and function without any problems. Following the workplace accident, the worker began to develop symptoms of depression and anxiety due to increased knee pain. The primary cause for the worker’s ongoing psychological symptoms is squarely related to significant pain. The WR referenced a number of clinical entries supporting that the worker’s psychological symptoms were caused by the workplace accident. The WR submitted that significant weight should be given to the medical reports provided by the worker’s family physician.

Policy 15-04-02 (Psychotraumatic Disability) provides for entitlement for psychotraumatic disability resulting from a work-related injury, providing the psychotraumatic disability/impairment became manifest within five years of the injury, or within five years of the last surgical procedures. Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition. The policy goes on to state that there are three circumstances in which entitlement may be granted for a psychotraumatic disability:

• A psychotraumatic disability resulting from a brain injury;

• Due to an emotional reaction to a physical injury or treatment process or

• Due to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly related to the work-related injury.

I do not believe the worker has met any of the three criteria.

Brain injury

The worker did not sustain a brain injury as a result of the workplace injury; and therefore, the first criterion has not been met.

Emotional reaction to the injury or treatment process

There is insufficient evidence to support that the worker experienced an “emotional reaction” to the physical injury. The accident itself would not be objectively described as being traumatic in nature. The worker had no difficulties describing the accident in detail at the hearing without showing any emotion. The worker confirmed they were not directly struck by the forklift. Rather, the forklift struck the table they were working on, which in turn caused a bar underneath the table to strike their right knee. The worker testified they were sitting on a chair at the time of the accident and the impact did not cause them to fall off their chair. The fact that the worker did not sustain any significant injuries further supports the fact that the accident was neither significant nor traumatic. The medical documentation on file confirms the worker was diagnosed with a right knee contusion resulting in some swelling in the knee. While a meniscal tear was initially suspected, imaging studies ruled out that possibility. I note the injury did not result in the worker requiring any surgery and nor did the worker require injections in their knee. Apart from physiotherapy, the worker did not undergo any invasive procedure or treatment for their knee injury. As such, I find there is no evidence to support that the worker’s psychological issues were caused by the injury or the treatment process following the injury.

It is worth noting that the medical records indicate the worker also reported low back issues following the workplace accident. However, there is no entitlement to a low back injury under this claim and the worker testified that they did not injure the low back during the accident. A review of the medical records confirms the worker’s low back issues predated the workplace accident. While the worker claimed that they back issues were not the cause of their psychological issues, the psychological reports on file do not support this statement. In fact, Dr. Rajendra’s reports only mention the worker’s low back issues and there is no mention of the right knee.

Contrary to the worker’s testimony, there is no documentary evidence of the worker reporting any psychological issues within a week of the injury. The clinical notes by Dr. Sivakumar confirm that the first mention of psychological issues was documented in the clinical entry dated April 30, 2020 – more than three months after the injury. Dr. Sivakumar documented that the worker was suffering from depression and anxiety. There was no mention of any psychological issues prior to this date.

However, I find the timing of the onset of psychological symptoms to be relevant. Just one month prior to the onset of anxiety/depressive symptoms, the worker had been advised by the WSIB in a letter dated March 31, 2020, that they would not be entitled to LOE benefits after February 15, 2020, due to the availability of suitable modified work. According to the clinical notes the worker had a phone consultation with the family physician on April 27, 2020, indicating that they were no longer being paid by WSIB and that they needed a medical certificate to be completed so that they could claim alternative benefits. It was while completing the medical certificate of April 30, 2020, that the family physician documented that

the worker was suffering from depression and anxiety. Prior to this date, there was no mention of any depression or anxiety.

In my opinion, the sudden onset of psychological symptoms just a few weeks after the termination of benefits suggests that the primary cause for the worker’s psychological symptoms was the termination of benefits and not the nature of the accident. This is further supported by the fact that the worker never mentioned any emotional issues to Dr. Sivakumar. In his clinical entry dated August 17, 2020, Dr.

Sivakumar documented that over the last few weeks the worker had reported feeling depressed, sad, and down. The worker reported loss of energy, appetite and feeling worthless. Dr. Sivakumar diagnosed the worker with a major depressive episode. There is no mention of any posttraumatic stress disorder (PTSD) type symptoms in this clinical entry.

The worker underwent a telephone psychological consultation on September 9, 2020 through the Outpatient Mental Health Services Department at Hospital Y. The report indicates the worker had significant psychological issues dating back to 2004 – 2005, related to the loss of their three children in a tsunami. At the time, the worker was hospitalized for three months and reported symptoms of sleep disturbances, screaming, irritability, and violence. However, the worker stopped taking medications after approximately six months. The worker moved to Canada in 2008 and was trying to cope with life. The worker said their mental health symptoms started again after an episode in the workplace, a minor accident, when a forklift hit a table which in turn struck the worker. The worker reported that the traumatic/dangerous incident had bought back past memories resulting in symptoms of depression and anxiety. The worker was referred to Dr. Rajendra, psychiatrist.

The worker was seen by Dr. Rajendra on October 28, 2020, who noted the worker was involved in a workplace accident when a table hit their “back” resulting in back pain. Interestingly, there is no mention of the worker’s right knee in this medical report. It is worth emphasizing that Dr. Rajendra is listed as being fluent in xxx according to the College of Physicians and Surgeons website. Hence, it is unlikely that there was any issue with communication given that the worker speaks the same language. Dr.

Rajendra documented that the worker was only paid by the WSIB for a few months and then they had to apply for Employment Insurance (EI) benefits but that they had still not heard from EI. The report went on to indicate that the worker’s spouse was also not working and that they did not have any financial support. The worker reported that they purchased a house and that the mortgage and property tax was

$3000 a month which caused significant worry. The majority of the report spoke about the worker’s pre- existing psychological issues and the difficult relationship they had with their spouse. It is worth emphasizing that at no point did Dr. Rajendra document the worker reported having any emotional reaction to the workplace accident itself or the treatment process. There is no mention of flashbacks and nightmares associated with the forklift accident (but there is mention of nightmares, panic attacks and depression since the tsunami). Nevertheless, Dr. Rajendra stated that the recent workplace injury had brought back some of the depression and symptoms of PTSD. I interpret this to mean that while the worker’s PTSD was not work-related, the increased pain levels from the accident had resulted in an aggravation of the worker’s depression and some of the PTSD symptoms. The difficulty in accepting this opinion is that the report makes no mention of the right knee and only speaks about the worker’s low back issues and financial worries associated with the termination of benefits. Hence the increased “pain” referred to in his report is related to the worker’s non-compensable back and not the work-related right knee. Dr. Rajendra provided a diagnosis of chronic PTSD along with an adjustment disorder with secondary depression.

Dr. Rajendra’s clinical notes (handwritten) from 2021 onwards confirms the worker continued to report ongoing psychological issues that were primarily related to the worker’s inability to work due to their low back issues. The reports also mention issues with their spouse. For instance, Dr. Rajendra’s

handwritten clinical note dated October 18, 2021, notes the worker’s husband was also not working and had recently had surgery and that they were both off work. The worker continued to report ongoing back pain with difficulty walking due to radiating symptoms into the feet. There was no mention of the worker’s right knee in any of the clinical entries.

Dr. Rajendra’s December 15, 2021 progress report notes the worker continued to feel depressed but there had been a marked improvement (this contradicts the worker’s testimony that they have not experienced any improvement in their psychological symptoms). Dr. Rajendra noted that the worker’s sleep was disturbed due to dreams and nightmares. However, there is no mention that the nightmares and dreams have any association to the workplace accident. Rather, the report reiterates that the worker has several symptoms of PTSD related to the loss of their children during the tsunami. More importantly, the worker reported having ongoing low back pain that radiated down their leg. The worker said that the pain disturbed their sleep and prevented them from doing much work. It cannot be overemphasized that this report clearly contradicts the worker’s testimony that their psychological symptoms were related to the right knee pain and not to their back problems.

The clinical notes from m Dr. Sivakumar also make no mention of the worker experiencing any nightmares, flashbacks or panic attacks related to the forklift incident. The clinical entry dated

April 21, 2021, noted that the worker’s low back pain was ongoing. The entry also noted the worker was reporting muscular pain spasms and stiffness around the neck and upper back which was making it difficult for them to sleep.

In his letter dated May 3, 2021, Dr. Sivakumar notes that the worker was struck by a table on the back and right knee “with great impact resulting in ongoing knee and back pain in grave severity.” The report indicates that the worker’s symptoms were lumbar spondylosis pain which had been an ongoing concern to this date. No ongoing diagnosis was provided for the right knee injury. He went onto to note the worker had a history of chronic PTSD and secondary depression “as a result of the unfortunate loss of (their) children to a tsunami and (their) inability to bear further children.” He noted that the worker’s psychiatric and physical conditions were further strained due to ongoing issues in the workplace. The worker was experiencing restlessness, night terrors, and was in a constant state of anxiety due to a lack of support. There was no indication in his report that the PTSD or depression was caused by the workplace accident. It also appears that the predominant issue was the worker’s non-compensable back injury as opposed to the knee. This is further corroborated by the entry dated May 17, 2021 which noted the worker had ongoing low back pain as well as the entry dated June 3, 2021, which indicated that the low back issues were making it difficult for the worker to sit upright for prolonged periods. There is also mention of the worker experiencing migraines and shortness of breath due to pre-existing asthma.

It is worth noting that right knee pain is only mentioned sporadically in the clinical notes and is far less frequent than the back pain. Furthermore, there is no actual diagnosis provided for the right knee other than just right knee pain.

For all these reasons, I find the worker did not suffer an “emotional reaction” to the injury or treatment process. The accident was relatively minor and cannot be described as being “traumatic or life threatening.” It is worth noting that the initial psychological intake report dated September 9, 2020, also described the workplace accident as being “minor.” Contrary to the worker’s testimony, there is no evidence the worker was suffering from any psychological issues or symptoms in the weeks following the accident. During this period the worker’s claim had been allowed and they were receiving full LOE benefits. It was only after the worker’s LOE benefits were terminated that the worker reported symptoms of depression and anxiety. The reports from Dr. Rajendra confirm that the worker continues to suffer from PTSD symptoms associated with their pre-existing psychological trauma. These symptoms have

been exacerbated by ongoing low back issues for which there is no entitlement under this claim. Accordingly, I find that the second criteria has not been met

Extended disablement

The final criterion requires that the psychological condition is due to an extended disablement and to non- medical and socioeconomic factors, the majority of which can be directly related to the workplace injury.

The ARO decision dated May 27, 2022, determined that there was “no objective evidence of an ongoing right knee sprain/strain subsequent to the February 20, 2020, x-ray, which found no evidence of an ongoing effusion. I find that the worker achieved full recovery from their knee injury by this date, with no evidence of a PI (permanent impairment).”

I am bound by the ARO finding that the worker fully recovered from their work-related right knee injury with four weeks of the date of accident. Since the duration of impairment falls within the usual healing times for a soft tissue injury, I find the worker’s disablement cannot be described as being “extended.” Furthermore, the first mention of any psychological issues was not until April 30, 2020, more than two months after the ARO determined the worker had fully recovered from their physical injury. Accordingly, I find the final criterion for allowance has also not been met.

In conclusion, I find that none of the three criteria required under the psychotraumatic disability policy have been met. As such, I am unable to expand the worker’s entitlement to include a psychotraumatic disability in this claim.

CONCLUSION

The worker does not have entitlement to psychotraumatic disability. The worker’s appeal is denied.

DATED: July 31, 2023

Mr. H. Mohamed

Appeals Resolution Officer Appeals Services Division