Worker v. Employer, 2023 CanLII 100649

20230116

Worker

REPRESENTED by:

self-represented

HEARD by:

DATED:

Chantal Reid, appeals resolution officer

AUGUST 16, 2023

ISSUE

The worker objects to the case manager’s decision dated March 4, 2021, which determined the worker had recovered with no ongoing impairment and was cleared to resume their full pre-injury work duties and hours.

Preliminary Issues

On their Appeals Readiness Form dated May 12, 2023, the worker indicated they were objecting to the letters dated June 11, 2021, and September 19, 2022. However, these letters are reconsiderations of the March 4, 2021, decision and are not appealable decisions on their own. I also note that in their submission dated May 11, 2023, the worker speaks of a new period of lost time starting February 2022. I find that any possible recurrence in 2022 is not an issue that is properly before me in this appeal and I make no comment on this issue.

BACKGROUND

The worker was granted entitlement for a psychological reaction that developed after speaking with a suicidal caller on April 16, 2017. Full LOE benefits were paid from April 17, 2017, to June 3, 2018. The worker resumed modified work at reduced hours and received partial LOE benefits from June 4, 2018, to September 20, 2020.

Throughout the life of this claim, the worker participated in psychological treatment. In the report dated September 15, 2020, the worker was discharged from treatment and no longer had any restrictions.

In a letter dated March 4, 2021, the case manager determined the worker had achieved maximum psychological recovery (MPR) and that their condition was stable with no permanent impairment. The case manager noted the worker had full abilities and thus was closing the claim. The worker objected to this decision and this makes up the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2014

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. The worker did not fully recover in September 2020.

Employer Position

The employer is not participating in the appeal.

Worker Position

In their submission dated August 11, 2022, the worker explained that despite being cleared for full duties with no accommodations in September 2020, the worker requires additional breaks throughout their workday and they were not paid for these breaks. The worker noted they had a new period of lost time from February to June 2022 and was requesting acknowledgment of a permanent psychological impairment as well as LOE benefits from February to June 2022.

In their submission dated May 11, 2023, the worker requested entitlement for a permanent impairment from their psychological injuries and cover any partial LOE benefits from September 2020 despite acknowledging that by September 15, 2020, all restrictions were lifted and they were able to return to full-time hours with no ongoing impairment.

Assessment of the Evidence

Policy 11-01-05 Determining Permanent Impairment states that a work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. A recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.

Definitions

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.

Maximum medical recovery (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/disease.

Permanent impairment means impairment that continues to exist after the worker reaches MMR.

Significant improvement means a marked degree of improvement in the work-related injury/disease that is demonstrated by a measurable change in clinical findings.

Policy 11-01-05 explains that in the case of psychological impairment, the WSIB considers a permanent psychological impairment to be the loss of or abnormal psychological functioning.

In the psychological treatment report dated January 9, 2020, Dr. Barbera, Clinical Psychologist, noted the worker was unsuccessful at increasing their hours. They noted the worker was adamant about wanting to remain in their current job despite the poor prognosis for returning to work in a role that required telephone work.

In their report dated September 15, 2020, Dr. Barbera noted that working from home, due to COVID-19 restrictions, presented additional barriers to the worker’s resumption of full-time hours. Dr. Barbera specifically identified while working from home, the worker did not have the option to perform other roles and was expected to participate solely in phone duties. Dr. Barbera attributed the worker’s intermittent lost time to the barriers presented while working from home (i.e., solely working on phones). Dr. Barbera stated that the worker’s prognosis is “fair to poor” for sustaining their current work role.

While Dr. Barbera indicated that treatment could be suspended, they recommended a resumption of treatment (or support from an occupational therapist) once the worker was able to return to their worksite as it was “anticipated that [the worker] will require additional assistance with increasing to full-time hours”. Dr. Barbera noted the worker was mildly impaired in both their occupational and social functioning due to their ongoing anxiety symptoms, which affect their sleep, which leads to increased fatigue, and panic-related symptoms when exposed to trauma cues (telephone calls, the public) and stress. They further noted the worker was moderately impaired in their ability to work on telephones due to continued anxiety symptoms and being prone to frequent panic symptoms.

I acknowledge that Dr. Barbera recommended a discharge from treatment and noted the worker had full abilities from a psychological perspective. However, I further note that they tempered these statements with the acknowledgement that the worker would likely need further support when returning to working on-site and they were at risk for relapses due to ongoing anxiety and panic symptoms in response to certain triggers.

In considering the totality of the information and recommendations made on September 15, 2020, I am not persuaded that Dr. Barbera was indicating that the worker had made a full recovery. I find the evidence shows the worker’s psychological condition while stable when working at home, with self-accommodations for breaks and working reduced hours, there was still a functional impairment and there was a high probability the worker would have relapses. I refer in particular to the following evidence/comments made by Dr. Barbera:

The need for further support when the worker can resume in-office work and is able to increase their hours
Prognosis that sustaining the current work role was “fair to poor”
Mildly impaired in both their occupational and social functioning
Acknowledgement that the worker was at risk for relapses

Based on the evidence, I find the worker did not fully recover and remained with an ongoing psychological impairment beyond September 15, 2020.

As further treatment was recommended once the worker was able to return to work on-site, I found the worker had not yet achieved MMR on September 15, 2020. Noting that the worker reported a worsening of their psychological condition with further treatment in 2022, I find the determination of a new MMR/MPR date is outside of the scope of this appeal. I remit back to the operating area to gather the necessary information to determine if MMR/MPR has yet been achieved.

CONCLUSION

The worker’s objection is allowed.

DATED August 16, 2023.

Chantal Reid

Appeals Resolution Officer

Appeals Services Division