DECISION NUMBER:
20230118
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
C. GOEGAN, APPEALS RESOLUTION OFFICER
DATED:
AUGUST 30, 2023
ISSUES
The worker is objecting to the May 26, 2022 decision of the Case Manager:
Denying entitlement to loss of earnings (LOE) benefits from November 29, 2005.
Determining the worker reached maximum medical recovery (MMR) with no ongoing impairment for chronic mental stress (CMS) beyond September 1, 2006.
BACKGROUND
The background details of the case are described in Appeals Resolution Officer (ARO) decisions dated June 7, 2007 and July 18, 2019, as well as a June 19, 2018 Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision. Therefore, I need not repeat them at length.
Briefly, on October 21, 2005, this then 31-year old paint operator at an automobile manufacturing plant pursued a claim for traumatic mental stress (TMS). They reported sexual harassment by a co-worker since July of 2004. The worker sought initial medical attention in October 2005 and was diagnosed with reactive depression and post-traumatic stress.
The Operating Area denied initial entitlement to TMS. In the June 7, 2007 decision, the ARO found that while the incidents of sexual harassment reported by the worker did occur, the incidents did not meet the definition of sudden and unexpected traumatic events as required by the applicable WSIB policy on TMS.
The worker appealed the ARO decision to the WSIAT. In light of amendments to the Workplace Safety and Insurance Act that came into effect on January 1, 2018 and resulted in amendments to the TMS policy as well as the creation of a new chronic mental stress (CMS) policy, the WSIAT returned the matter to the WSIB for further adjudication.
In a December 31, 2018 decision, the Operating Area reconsidered initial entitlement under the amended TMS policy as well as the new CMS policy and denied the claim. In the July 18, 2019 decision, the ARO granted initial entitlement to CMS and remitted the issue of benefits flowing their decision to the Operating Area.
In a May 26, 2022 decision, the Case Manager approved the payment of full LOE benefits from October 22, 2005 until November 29, 2005. They denied entitlement to LOE benefits from November 29, 2005, however, as they concluded medical evidence did not support the worker was incapable of working from that date. The Case Manager also concluded the worker had reached MMR for the work-related psychological condition by September 1, 2006, as medical evidence did not establish the worker attended any further treatment for the October 21, 2005 mental stress injury beyond that date.
The worker objected to the May 26, 2022 decision of the Case Manager and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-05 – Determining Permanent Impairment 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
November 3, 2014 September 1, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
The Worker’s Position
In submissions dated July 6, 2023, the worker’s representative submitted the following:
The worker did not fully recover from the work-related psychological condition by September 1, 2006. They continued taking psychiatric medications until August 2007.
Case notes from a third party insurer establish continuity of complaint until August 2007.
The worker’s psychological symptoms continued unabated until August 2007 and were ongoing in November 2007.
There is no evidence the employer was supportive in effort to accommodate the worker’s return to work by providing them with a psychologically safe workplace. This is evidenced by the fact the worker continued to receive benefits from a third party disability insurer from 2006 until an arranged return to work in 2007. The representative submitted the worker is entitled to LOE benefits until their return to work in 2007.
The Employer’s Position
The employer’s representative completed and returned the November 14, 2022 Respondent Form but did not provide submissions or a specific argument for consideration.
Ongoing Entitlement to Chronic Mental Stress
According to Policy 11-01-05 (Determining Permanent Impairment), impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss. A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. The policy states MMR means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury. To determine that permanent impairment exists, the decision-maker must confirm that:
MMR has been reached
Evidence of ongoing impairment exists, and
The ongoing impairment is a result of the work-related injury.
In order to determine whether MMR is reached decision makers consider whether:
Recent clinical evidence indicates any change in the work-related injury.
The worker is receiving treatment that is likely to improve the work-related injury, or
The worker is using medication to maintain the current level of recovery.
Once MMR has been determined decision makers consider whether there is an ongoing impairment based on the clinical evidence. In order to determine the work-relatedness of an ongoing impairment, decision makers consider:
Whether the current diagnosis is the same as or compatible with the initial work-related injury diagnosis.
Whether the clinical evidence of impairment is related to the current diagnosis, and
Whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment.
Factors such as the type or duration of treatment are not generally considered indicators of ongoing impairment in the absence of other clinical evidence of impairment.
Given the evidence before me, I agree with the worker representative that the worker had not fully recovered from the work-related psychological condition by September 1, 2006. In reaching that conclusion, I have taken particular note of the following:
A July 14, 2006 report from Dr. Paquin, a psychologist, indicated the worker had been attending weekly psychotherapy sessions since October 2005, in relation to the work incidents that culminated in the CMS claim. He described ongoing depressive symptoms and indicated the psychological treatment was not complete.
A series of August 2006 chart notes from Dr. Paquin continued to describe psychological symptoms. In an August 24, 2006 note, Dr. Paquin stated he planned to continue cognitive behavioural therapy with the worker.
Medical chart notes from Dr. Coulby, the worker’s family doctor, described ongoing psychological symptoms in relation to the work accident beyond September 1, 2006. February 2007 chart notes indicate Dr. Coulby had prescribed the worker anti-depressant medications and subsequent chart notes specifically reference continued psychological symptoms and the ongoing administration of psychiatric medications in relation to the work accident in April and May 2007.
A July 19, 2007 report from Dr. Benes, a psychiatrist, described ongoing symptomatology in relation to the work accident. She noted the worker could not continue attending psychotherapy with Dr. Paquin due to a lack of funding. The report also stated that since November 2006 the worker had been attending work “only occasionally”. Dr. Benes also noted the worker had a significant history of alcohol use. While she endorsed the diagnoses of alcohol abuse, a delusional disorder and a major depressive disorder, Dr. Benes indicated it was difficult to make a clear diagnosis given the worker’s alcohol abuse. She recommended the worker enter a program to deal with alcohol use and recommended the worker continue taking psychiatric medications.
Following the psychiatric assessment with Dr. Benes, the chart notes from Dr. Coulby indicated the worker continued to consult with him concerning depression until November 2007.
While I find the worker had not reached MMR by September 1, 2006, I also find it more probable than not that the psychological symptoms that resulted from the work accident in this case abated with no ongoing residual impairment sometime after November 2007. The record indicates the worker had a significant work accident on November 20, 2007 in which they reportedly fell through a glass window and injured their low back. The medical records from Dr. Coulby beyond November 2007 do not support, in my view that the October 21, 2005 work accident continued to contribute significantly to an ongoing psychological condition. Dr. Colby made no further references to the October 21, 2005 accident in his chart notes beyond November 2007.
Similarly, medical records from Dr. King, the worker’s current family doctor from 2016 do not reference persistent psychological symptoms in relation to the workplace harassment. There was a May 4, 2011 report from Dr. Ratnanather, a psychiatrist, stating the worker had depression and difficulty sleeping due to their financial situation and the report mentioned both the low back injury and harassment that culminated in the CMS claim. I gave little weight to that report, however, as Dr. Ratnanather appeared to be under the impression the harassment took place after the worker had returned to work with the employer in January 2011. Accordingly, I find it more probable than not the worker reached MMR sometime after November 2007, and the work accident in this case was no longer contributing significantly to the worker’s psychological symptoms. As such, I conclude the worker does not have ongoing entitlement to chronic mental stress.
Entitlement to Loss of Earnings Benefits from November 29, 2005
Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker is entitled to receive full LOE benefits if the nature of the injury completely prevents the worker from returning to any type of work. A worker who can return to some form of work is entitled to full LOE benefits if suitable work is not available providing the worker co-operates in health care measures and all aspects of the work- reintegration process.
I find the worker is entitled to LOE benefits from November 29, 2005 until the date of their return to work in 2006. In reaching that conclusion, I took particular note of the following:
On November 29, 2005, the worker attended an Independent Medical Examination (IME) at the request of a third party disability insurance company. In the IME report that followed the assessment, Dr. Bruun-Meyer, a psychiatrist, opined that while the worker did not meet the criteria for a diagnosis of post-traumatic stress disorder, the accident had caused some difficulties in the worker’s social and occupational functioning. Dr. Bruun-Meyer was asked to provide her opinion on whether the worker was capable of returning to work. She opined the worker was capable of working and stated there were no specific task limitations. Dr. Bruun- Meyer also stated that despite the absence of psychiatric symptoms precluding the ability to work, any contact with the co-worker responsible for the harassment would likely provoke symptoms.
A March 31, 2006 letter from the employer indicated that during a WSIB investigation, an offer was made to remove the worker from the paint department and re-locate them to another area of the plant. The letter stated this offer of work remained available and advised the worker of their co-operation obligations under Section 40 of the Workplace Safety and Insurance Act. The letter requested the worker complete and return a Functional Abilities Form by April 21, 2006.
In a July 18, 2006 letter to the employer, Dr. Paquin indicated the worker had made progress in psychotherapy and would like to return to part-time work in the near future, primarily due to a lack of income. While he opined the worker was not yet ready, Dr. Paquin suggested a graduated return to work plan.
The August 2006 chart notes from Dr. Paquin suggest the worker was waiting for full-time work and was optimistic there were some new jobs opening with the employer they may be able to start full-time.
In the July 18, 2019 ARO decision, the worker testified that they resumed working with the employer in 2006 and the employer accommodated them by making sure they never worked with the co-worker.
In the May 26, 2022 decision, the Case Manager denied entitlement to LOE benefits from November 29, 2005 on the basis she concluded the worker was capable of working with no specific task restrictions based on the IME report from Dr. Bruun-Meyer. While I find Dr. Bruun-Meyer’s IME report is comprehensive, I note that in addition to stating the worker could resume working with no specific task limitations, she also indicated that any specific contact with the co-worker would likely provoke symptoms.
The evidence also establishes that following a WSIB investigation into the worker’s claim in in March 2006, the employer sent the worker correspondence in an effort to assist them in relocating to a different area of the plant. Dr. Paquin subsequently wrote to the employer on July 18, 2006 and suggested a graduated return to work despite his opinion the worker was not clinically ready to resume working. It would appear, based on the August 2006 chart notes from Dr. Paquin that the worker returned to work following Dr. Paquin’s July 18, 2006 letter. I find that is consistent with the worker’s testimony in the July 18, 2019 ARO decision that they returned to work in 2006 and the employer accommodated them by making sure they never worked with the co-worker. Therefore, I conclude that the worker made reasonable efforts to co-operate in the return to return to work process by returning to suitable work with the employer in 2006. As such, I find the worker is entitled to full LOE benefits from November 29, 2005 until the date they returned to work with the employer in 2006. The Operating Area is directed to confirm the exact date of the worker’s return to work.
The chart notes from Dr. Coulby indicate the worker continued to experience psychological symptoms into 2007 and Dr. Benes stated in her report they had attended work “only occasionally” since November 2006. However, I do not find the worker was totally disabled as the result of the psychological condition beyond their initial return to work with the employer in 2006. Despite her recommendation the worker received treatment for alcohol abuse, Dr. Benes did not recommend the worker discontinue work. The chart notes from Dr. Coulby did not suggest the worker discontinue work. As the employer continued to have suitable work available following their March 31, 2006 correspondence, I conclude the worker is not entitled to LOE benefits beyond the date of their initial return to work with the employer.
CONCLUSION
I conclude the following:
The worker does not have ongoing entitlement to chronic mental stress beyond November 2007.
The worker is entitled to full LOE benefits from November 25, 2005 until the exact date of their return to work with the employer in 2006. Confirmation of the exact date of the worker’s return to work with the employer is to be determined by the Operating Area.
The worker’s objection is allowed in part.
DATED August 30, 2023
C. Goegan
Appeals Resolution Officer Appeals Services Division