Worker v. Employer, 2023 CanLII 112869

Appeals Resolution Officer Decision

DECISION NUMBER: 20230123

OBJECTING PARTY: worker

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER

REPRESENTED by: SELF (NOT PARTICIPATING)

HEARING: HEARING IN WRITING

HEARD by: c. da cunha, appeals resolution officer

DATED: SEPTEMBER 14, 2023

ISSUES

The worker objects to the Occupational Disease and Survivor Benefits Program (ODSBP) Adjudicators’ decisions of December 16, 2021 and January 16, 2023. These decisions:

• Denied secondary entitlement to a post-traumatic stress disorder (PTSD) under the Psychotraumatic Disability (PTD) policy. Consequently, the ODSBP Adjudicator also denied:
• Entitlement to a recurrence of the October 17, 2019 work-related PTD permanent impairment (PI) for a major depressive disorder (MDD), with anxiety; and,
• Entitlement to funding for further mental health treatment.

The worker seeks:

1. Secondary entitlement to a PTSD under the PTD policy, with consequent entitlement to:
2. A recurrence of the work-related PTD PI;
3. Funding for ongoing treatment; and,
4. A non-economic loss (NEL) award redetermination of the mental health PI.

BACKGROUND

The Appeals Resolution Officers’ (ARO) decisions of November 18, 2020, February 28, 2021, and September 20, 2022, as well as the Workplace Safety and Insurance Appeals Tribunal’s decision of December 6, 2021, provide a thorough history of the case file. Therefore, I will not repeat it all here.

From June 4, 2018 to June 6, 2018, the worker was exposed to epoxy at work. Consequently, they developed allergic contact dermatitis (ACD), for which the WSIB granted initial entitlement, establishing June 4, 2018 as the date of injury (DOI). The employer hired them as a Painter on the DOI.

The ODSBP Adjudicator determined that the worker reached maximum medical recovery (MMR) for the ACD on September 12, 2018, with a PI evident. On September 10, 2019, the worker received a 5% NEL award in recognition of that PI.

On March 20, 2019, the WSIB granted secondary entitlement to a MDD, with anxiety, under the PTD policy. The ODSBP Adjudicator subsequently determined that the worker reached MMR for the PTD on October 17, 2019, with a PI evident. On December 1, 2020, the NEL Clinical Specialist rated the mental health PI at the 10% level on the Mental and Behavioural Disorders Rating Scale found within operational policy 18-05-11, Assessing PI Due to Mental and Behavioural Disorders, establishing the worker’s total combined NEL award at the 15% level.

On July 13, 2021, the worker’s family physician, Dr. I. Polidoulis, submitted a report to the WSIB requesting, in part, funding for further mental health treatment to address a PTSD.

The ODSBP Adjudicator considered and denied Dr. Polidoulis’ request on December 16, 2021. The ODSBP Adjudicator found that none of the criteria necessary for granting secondary entitlement under the PTD policy were met in this case.

The worker objected to the December 16, 2021 decision and, on September 20, 2022, the ARO considered the issue. Upon doing so, the ARO, in part, directed the Operating Area to refer the worker for a WSIB-sponsored psychological/psychiatric assessment to determine their psychological diagnosis, including whether the worker met the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for PTSD and symptoms, the work-relatedness of the condition(s)/symptoms, and the recommended treatment for the psychological condition(s). Following the psychological/psychiatric assessment, the ARO directed the Operating Area to revisit the December 16, 2021 decision with respect to the worker’s claimed deterioration of their work-related PTD.

The Operating Area then arranged for the worker to undergo a November 29, 2022 comprehensive assessment at the Mental Health Specialty Program of the Centre for Addiction and Mental Health (CAMH), with Dr. L.N. Ravindra, Psychiatrist, Dr. D. Ferguson, Supervising Psychologist, and Dr. A. Azam, Psychologist.

Upon receipt of the November 29, 2022 CAMH comprehensive assessment report, the ODSBP Adjudicator reconsidered and upheld the December 16, 2021 decision. The ODSBP Adjudicator found that the accident history was not traumatic and the work-related disability was not severe. Furthermore, the ODSBP Adjudicator found that the worker had not experienced a significant deterioration in their PTD, which could be related to the exposure incident, and denied funding for further treatment.

The Worker’s Position: The worker representative argues that, for the following reasons, the worker’s appeal should be allowed:

• On July 13, 2022, Dr. J. Barabtarlo, Psychiatrist, assessed the worker and opined that they presented with a MDD, associated with PTSD, caused by the work-related toxic reaction;
• Multiple mental health practitioners comprehensively and exhaustively assessed the worker at CAMH on November 29, 2022. On page 3 of their report, they noted that the worker’s severe allergic reaction, which required an extended hospital stay, was extremely traumatic, rebutting the ODSBP Adjudicator’s finding that the worker’s severe allergic reaction was not traumatic in nature;
• Identical to the opinion expressed by Dr. Barabtarlo, on page 18 of their reporting, the CAMH assessors confirmed the PTSD diagnosis, unequivocally asserting that it was directly attributable to the work-related allergic reaction, as well its sequelae. The assessors also denoted an overall deterioration in the work-related MDD, characterizing it as a "persistent MDD”. They also opined that the symptoms are attributable to the allergic reaction and its sequelae; and,
• Neither Dr. Barabtarlo nor the CAMH assessors identify any other plausible explanation, incident, accident, injury, or intervening event that broke the chain of causation between the work-related psychological PI and its evolution into a more persistent MDD and PTSD. It is, therefore, confusing that the ODSBP Adjudicator inferred that the PTSD manifested from a non-compensable or non-work-related origin. Such an inference is inconsistent with the objective medical reporting provided by three separate medical sources, two being mental health practitioners, and, in relation to CAMH, a group of doctors who have concurrently arrived at their opinion. The decision to deny secondary entitlement to PTSD and a worsening of the psychological PI is unsubstantiated and deviates from the medical reporting on record.

The Employer’s Position: The employer is not participating in the worker’s appeal.

AUTHORITY

Operational Policy Manual	Published
15-02-05: Recurrences	April 9, 2021
15-04-02: PTD	September 7, 2018
15-05-01: Resulting from Work-Related Disability/Impairment	April 9, 2021
17-01-02: Entitlement to Health Care	October 12, 2004
18-05-09: NEL Redeterminations	February 1, 2018

ANALYSIS

I have carefully considered all of the available information and appropriate operational policies in reaching this decision. Having done so, I find that:

1. Secondary entitlement to a PTSD under the PTD policy, and consequent entitlement to an October 5, 2020 recurrence of the work-related PTD, is in order; and,
2. Funding for the mental health treatment recommended by CAMH on November 29, 2022 is in order.

As the worker has not yet reached the permanent worsening date (PWD) for the significant deterioration in their mental health condition, a NEL award redetermination is not in order at this time. A ruling regarding the PWD and a potential NEL award redetermination is, therefore, left to the discretion of the Operating Area.

Operational policy 15-04-02, Psychotraumatic Disability, states, in part:

If it is evident that a diagnosis of a psychotraumatic disability/impairment is attributable to a work-related injury or a condition resulting from a work-related injury, entitlement is granted providing the psychotraumatic disability/impairment became manifest within 5 years of the injury, or within 5 years of the last surgical procedure.

It adds that entitlement to a PTD may be established when the following circumstances exist or develop:

• Organic brain syndrome secondary to

  • traumatic head injury
  • toxic chemicals including gases
  • hypoxic conditions, or
  • conditions related to decompression sickness.

• As an indirect result of a physical injury

  • emotional reaction to the accident or injury
  • severe physical disability/impairment, or
  • reaction to the treatment process.

• The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.

Furthermore, operational policy, 15-05-01, Resulting from Work-Related Disability, prescribes that entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability or impairment due to an increased dependency following a work-related injury to the right knee is an example of such a secondary condition.

Additionally, operational policy 15-02-05, Recurrences, states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:

• Does not result from a significant new incident/exposure; and,
• Is clinically compatible with the original injury/disease.

A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings.

Indicators of a significant deterioration may include:

• The need for active (non-maintenance) clinical treatment;
• A change in functional abilities,; or,
• A change in the ability to perform a job or suitable occupation.

The test for determining causation in WSIB claims is that of a significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.

The standard of proof applied is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”.

As confirmed by the ARO on September 20, 2022, the evidence on record shows that the worker’s family physician, Dr. Polidoulis, first diagnosed them with PTSD on October 5, 2020. Dr. Polidoulis recommended that the worker attend the Mood and Anxiety Program in order to, in part, address their PTSD, which she opined was caused by the work-related injury.

In subsequent reports, including one dated July 13, 2021, Dr. Polidoulis elaborated that the work-related MDD, combined with the worker’s fear of dying if exposed to any more allergens, contributed to the onset of the PTSD.

On July 13, 2022, Dr. Barabtarlo assessed the worker. Upon doing so, Dr. Barabtarlo diagnosed them with a MDD, associated with a PTSD, which developed as a result of the severe work-related toxic reaction. He recommended a psychotherapeutic approach to address the worker’s mental health conditions.

As previously noted, further to the ARO’s September 20, 2022 direction, the Operating Area arranged for the worker to undergo a November 29, 2022 comprehensive assessment at CAMH, where Drs. Ravindra, Ferguson, and Azam assessed them. In their report, these mental health specialists provided the following findings, in part:

STRUCTURED REVIEW OF SYMPTOMS

Section A: Mood Disorders. The following depressive symptoms were reported since the index incident in April 2018:

1. Having little interest or pleasure in doing things. He is more socially avoidant - "I just don't care about others anymore." No longer has interest in socializing, going out for dinner with friends, going on his PlayStation. Generally very low motivation affecting self-care. He will only do things if his mother asks him to.

2. Feeling down, depressed or hopeless for most of the day for the last 5 years; he feels sad and frustrated at his situation and how this "has been dragging on for the last five years." He is "pissed off at the system. .. I've lost my life." He finds it hard to experience anything positive. He often ruminates about the "system that was supposed to protect me has made me worse. ..just feel shoved in the dirt" and how people have let him down.

3. Difficulties with sleep - difficulty falling asleep and maintaining it (see functional assessment below).

4. Feeling tired or having little energy (see functional assessment below).

5. Decreased appetite (see functional assessment below).

6. Negative self-evaluation pertaining to low self-worth and loss of identity.

7. Difficulties with concentration (see functional assessment below).

8. Denied thoughts of being "better off dead" or having intent to self-harm or suicide (see risk assessment above).

It was reported that these symptoms made it very difficult to function and take care of things at home. These symptoms were reported as having first appeared in the aftermath of his workplace incident in April 2018. There were no reported fluctuations in mood, and no reported significant amount of time without depressive symptoms. There was no history of prior depressive incidents. Based upon presentation and report of symptoms, criteria were met for Persistent Depressive Disorder, with Persistent Major Depressive Episode, Moderate.

There were no reported symptoms consistent with mania or hypomania.

Section 8: Psychotic Disorders. There were no reported symptoms of hallucinations or delusions.

Section C: Trauma and Stress or Related Disorders. Symptoms of Posttraumatic Stress Disorder were reviewed as per their presence in the past month using the CAPS 5 (Clinician Administered PTSD Scale) to guide review of PTSD symptoms.

Criterion A

Based on the description of the event provided by the worker, the event does meet criterion A as defined by the DSM V: Exposure to actual or threatened death, serious injury.

It was reported to impact the worker in following ways:

1. Directly experiencing the traumatic event(s) (see Section B).

Criterion B

Current Intrusive/Re-experiencing symptoms:

1. Psychological and physiological distress in response reminders of work incident (e.g., construction work/sites), including elevated heart rate, excess sweating, post-event rumination that can last up to half an hour. Frequency described to vary and depends on avoidance efforts. Severity is considered moderate.

Criterion C

Current avoidance symptoms:

1. Avoidance of external reminders of the incident(s): Worker avoids being exposed to any construction work/sites by staying indoors, in his room as much as possible. Frequency described as persistent and is confounded by depressive symptoms (low mood, low self-worth). Severity is considered severe.

Criterion D

Current altered cognitions or mood:

1. Negative beliefs about self or others: The worker is severely demoralized by the loss of his career due to what he perceives to be disregard for his safety by his employer. His level of conviction in this belief is extreme. Severity is considered severe.

2. Change in cognitions includes helplessness and blame of others: He is "pissed off at the system ... I've lost my life." He finds it hard to experience anything positive. The "system that was supposed to protect me has made me worse ... just feel shoved in the dirt." Level of conviction of blame and helplessness is extreme and is confounded depressive symptoms. Severity is considered severe.

3. Persistent negative moods (anger and resentment) were endorsed for most of the past few years since the index incident. This is confounded by depressive symptoms. Severity is considered severe.

4. Diminished and pleasure interest in activities: No longer has interest in socializing, going out for dinner with friends, going on his PlayStation. Generally very low motivation affecting self-care. He will only do things if his mother asks him to. Severity is considered severe.

5. Feelings of being distant or cut off from others: He is more socially avoidant - "I just don't care about others anymore." He reports only being cordial with his mother and sister, and will often refuse to spend time with friends. Severity is considered severe.

Criterion E

Current symptoms of hyperarousal or reactivity:

1. Anger and irritability was endorsed with respect to anticipating having words with strangers in public if he disapproves of their behavior (e.g., grocery stores). He denied this to be occurring on a regular basis and described this to be longstanding and exacerbated by the index incident. Severity is considered moderate.

2. Concentration difficulties (see also functional assessment below) were endorsed with respect to reading and conversations. Severity is considered moderate.

3. Sleep disturbance (see also functional assessment below) was endorsed with respect to being unable t stick to a regular sleep schedule, difficulty falling asleep. Severity is considered moderate.

These symptoms were reported to have onset after the workplace incident. The reported symptoms were noted to have interfered with the ability to function at work and at home. Based upon presentation and report of symptoms, criteria were met for Posttraumatic Stress Disorder.

Occupational Diagnosis (related to work place injury /incident):

DSM-5 Diagnosis

Posttraumatic Stress Disorder

Persistent Depressive Disorder, with Persistent Major Depressive Episode

Based on the information compiled in this report, the attribution of symptoms is as follows:

1. Reported symptoms of Posttraumatic Stress Disorder started following the index incident. The symptoms are directly attributable in onset to the index event.

2. Reported symptoms of Persistent Depressive Disorder started following the index incident. The symptoms are attributable in onset to the index event, with exacerbating factors (e.g., job loss, strain regarding WSIB claim, financial strain).

Non-Occupational Diagnosis (not related to workplace injury/incident):

n/a

Level of Recovery and Timeframe to Maximum Psychological Recovery

It is opined that Maximum Psychological Recovery has not been reached for the following reasons:

• The worker could benefit initiating psychological treatment
• Monitor for referral for augmentation of treatment with the addition of OT

Timeframe for Maximum Psychological recovery (estimated): review in 6-8 months depending on enactment of treatment recommendations and progress.

N. TREATMENT AND INTERVENTION RECOMMENDATIONS

Describe and provide rationale for treatment as well as treatment interventions, frequency and goals:

Community Psychological Treatment Recommendations

It is recommended that treatment with the provider proceed with weekly session for six months. Based on the assessment conducted today, the following therapeutic strategies could be of benefit:

• Behavioral Activation: given that that this worker reports significant functional limitations within and/or outside the home, structured goal setting and behavioral activation can be of potential benefit for this worker.
• ACT based strategies: to help the worker better accept and adjust to current psychological symptoms and associated functional limitations/loss of occupation and felt loss of identity.
• CBT /Prolonged Exposure Therapy for Trauma: CBT /PE is an evidence-based treatment for PTSD which, by description of the worker, has not been attempted. If the therapist has interest/expertise in providing this treatment then this would be recommended to help determine if the worker will achieve further improvement in trauma symptoms. Information about this treatment can be found at https://www.apa.org/ptsd-guideline/treatments/prolonged-exposure.
• Cognitive Behavioral Therapy for Insomnia (CBTi): by description of current sleep difficulties, it is recommended that this worker receive 4-6 sessions of CBTi as a standalone treatment/following above recommendations/prior to above recommendations to address primary insomnia.

The record shows that four mental health specialists and the worker’s family doctor all agreed, after assessing the worker and reviewing the evidence that the work-related exposure and resulting ACD resulted in the development of a PTSD. Furthermore, as per the ARO’s September 20, 2022 direction, the CAMH team confirmed that all the criteria necessary to diagnose PTSD are present in this specific case. Noting the area of expertise of these specialists, I place a significant amount of evidentiary weight on their opinions. There is no contrary expert mental health opinion of greater evidentiary weigh on record.

The facts and circumstances on record lead me to find that, beginning on October 5, 2020, the worker developed a secondary PTSD, more than likely causally related to the workplace injury and MDD. Therefore, I find that secondary entitlement to the PTSD under the PTD policy, compatible with an emotional reaction to the physical injury and their already vulnerable mental health state, is in order.

Noting the severity of the PTSD, as confirmed by the CAMH team, I also find that, as of October 5, 2020, the worker suffered a significant deterioration in their work-related PTD. Therefore, entitlement to a recurrence effective that date is also in order.

Operational policy 17-01-02, Entitlement to Health Care, directs that a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.

As the evidence supports a direct nexus between Dr. Polidoulis’ October 5, 2020 PTSD diagnosis and the CAMH team’s November 29, 2022 confirmation of the condition, I find that the CAMH team’s recommended treatment is necessary, appropriate, and sufficient for the worker. Therefore, entitlement to funding for the same is also in order.

Operational policy 18-05-09, NEL Redeterminations, directs that, after the criteria for a NEL redetermination are met, the PWD must be determined. The PWD is the date the deterioration in the worker's condition stabilized and/or no further significant improvement is likely. Increases in the NEL benefit are payable from the PWD.

As confirmed by the CAMH team, the worker has not yet received the necessary, appropriate, and sufficient health care to address their PTSD. Accordingly, I find that they have not yet reached the PWD. Therefore, a NEL award redetermination is not in order at this time. The determination regarding the PWD and a potential consequent NEL award redetermination is, therefore, left to the discretion of the Operating Area.

CONCLUSION

I find that:

1. Secondary entitlement to a post-traumatic stress disorder under the Psychotraumatic Disability policy, and consequent entitlement to an October 5, 2020 recurrence of the work-related mental health condition, is in order; and,
2. Funding for the mental health treatment recommended by the Centre for Addiction and Mental Health on November 29, 2022 is in order.

As the worker has not yet reached the permanent worsening date for the significant deterioration in their mental health condition, a non-economic loss award redetermination is not in order at this time. The determination regarding the permanent worsening date and a potential non-economic loss award redetermination is left to the discretion of the Operating Area.

The worker’s objections are, therefore, allowed.

DATED September 14, 2023.

C. da Cunha Appeals Resolution Officer Appeals Services Division