DECISION NUMBER:

20240017

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

VIDEOCONFERENCE – NOVEMBER 21, 2023

HEARD by:

DATED:

C. GOEGAN, APPEALS RESOLUTION OFFICER

NOVEMBER 27, 2023

ISSUES

The worker is objecting to the June 27, 2023 decision of the Case Manager denying entitlement to a psychotraumatic disability.

BACKGROUND

On February 28, 2018, this then 55-year old furniture specialist stepped on a rock and twisted her right ankle while trying to enter her vehicle. The worker also twisted her lower back while reaching for the car to prevent herself from falling and struck her right elbow and lower leg. The worker returned to her regular job duties immediately after the accident, later sought medical attention with her family doctor and continued performing regular duties until April 10, 2018. On that day, the worker stopped working and claimed entitlement to loss of earnings (LOE) benefits for ongoing low back difficulties.

The Eligibility Adjudicator (EA) approved initial entitlement to health care benefits for soft tissue injuries of the right ankle, right elbow and lower back; however, the EA also concluded the worker had reached maximum medical recovery (MMR) with no ongoing impairment by March 28, 2018 and denied any further benefits beyond that date.

The worker objected to the EA’s decision that she reached MMR with no ongoing impairment in relation to the work-related low back strain. In a decision dated April 24, 2019, an Appeals Resolution Officer (ARO) found the worker reached MMR following the work-related low back injury by March 29, 2018 with no permanent impairment. The ARO determined the worker’s low back complaints after March 29, 2018 were more likely than not related to pre-existing low back problems, including age-related degenerative change.

In November 2022, the worker representative wrote to the Operating Area and requested entitlement to benefits for a psychotraumatic disability. The worker later attended a WSIB Community Mental Health Program (CMHP) assessment in February 2023 and a psychologist diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as a pain disorder with psychological factors and a general medical condition.

In a June 27, 2023 decision, the Case Manager denied entitlement to a psychotraumatic disability as they concluded the worker did not meet any of the three circumstance warranting entitlement to benefits for a psychotraumatic disability described in the applicable WSIB policy.

The worker, through their representative, objected to the June 27, 2023 decision and the matter was referred to the Appeals Services Division for consideration.

AUTHORITY

Operational Policy Manual

Published

15-04-02 - Psychotraumatic Disability

September 7, 2018

ANALYSIS

I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the June 27, 2023 decision of the Case Manager is appropriate and the worker does not have entitlement to benefits for a psychotraumatic disability.

The Worker’s Position

At the hearing, the worker representative submitted the following arguments in support of the worker’s appeal:

• The worker developed a psychotraumatic disability that became manifest within five years of the work-related injury.

• Prior to the accident, the worker did not suffer from any psychological conditions.

• The worker experienced an emotional reaction to the work-related accident.

• The representative submitted the period between the date of the accident and the date the worker reached MMR was an extended period of disablement leading to the development of anxiety and depression that remains ongoing.

• While the worker may have experienced psychological issues before the accident, they became aggravated as a result of the workplace accident to the point where she had to seek help from medical professionals.

• Medical reports in the record establish the worker continues to experience ongoing pain and functional difficulties that affected all aspects of her life, resulted in low mood, and affected her sleep.

• The worker would like to work full time; however, her chronic pain issues prevent her from doing so which is a clear indication of the impact the accident has had on all aspects of the worker’s life.

The Worker’s Testimony

The worker testified that she was born in Country A and immigrated to Canada in 1967. She testified that she attained a grade 9 level of education in Canada and had worked for the employer for approximately three years as a sales representative before the accident.

The worker described some of her job duties with the employer that included meeting with clients concerning office furniture sales, completing paperwork and responding to e-mail. The worker testified that her job duties were different nearly every day and while scheduled for eight-hour workdays, she often worked additional hours catching up on tasks she did not have time to complete.

The worker described the accident in which she opened her car door, stepped on a rock and twisted her upper body. She testified that she hurt her back and one of her legs. She indicated she struck her right leg and right arm on the corner of the car door while trying to hold herself up. The worker confirmed she is right handed and explained that she finished her shift on the day the accident occurred. The worker indicated that she subsequently saw her family doctor who arranged for physiotherapy and chiropractic treatments. She could not recall if the doctor prescribed medication.

The worker testified she experiences constant pain in her low back and lower body on a daily basis. She described a “golf ball” or “tennis ball” like area in the low back and burning pain in the legs and thighs.

The worker explained she feels constant burning in her lower legs.

When questioned by the representative, the worker explained she tried to continue working after the accident because she worked from home. She testified that she tried to respond to e-mail from home while laying down but had to cancel and postpone sales appointments. She indicated that she continued working after the accident for approximately two or three weeks but had to stop because she could not deal with the pain any longer. In response to a question about the results of two independent medical examinations she attended at the request of a third party disability insurance company in 2018, the worker testified she could not recall the results. The worker testified she never returned to work after she stopped working and currently receives Canada Pension Plan (CPP) disability benefits and Ontario Disability Support Program (ODSP) benefits.

The worker testified she continues to see her family doctor regularly for pain. She attended a pain clinic but could not receive recommended injections due to a prior reaction during a dental procedure. She discusses mental health with her doctor and the doctor diagnosed anxiety and depression. The worker testified she had depression before the accident that worsened because she can no longer work.

The worker testified she had seen a specialist for her mental health but could not recall whether the specialist was a psychologist or a psychiatrist. The worker explained that she previously took Wellbutrin and found it useful. The worker testified that currently, the only medications she takes are a medication for stomach issues and CBD gummies.

The worker testified that she had an active social life before the accident. She would go out dancing, visit family and friends, attend the casino and go to restaurants. While she continues to visit with family during special occasions, her interaction with family is not to the same degree. The worker also testified that her sleeping habits were fine before the accident and she would average between six and eight hours of sleep at night. Currently, she averages three or four hours of sleep because pain makes sleeping difficult.

Entitlement to a Psychotraumatic Disability

Policy 15-04-02 (Psychotraumatic Disability) states that if it is evident that a diagnosis of a psychotraumatic disability is attributable to a work-related injury or a condition resulting from a work- related injury, entitlement is granted providing the psychotraumatic disability became manifest within five years of the injury, or within five years of the last surgical procedure.

According to the policy, a psychotraumatic disability is considered to be a temporary condition that is only accepted as permanent in exceptional circumstances. The policy stipulates that psychotraumatic disability resulting from organic brain damage is assessed as a permanent impairment.

Policy 15-04-02 (Psychotraumatic Disability) states that entitlement for psychotraumatic disability may be established when the following circumstances exist or develop:

• Organic brain syndrome secondary to

o Traumatic head injury

o Toxic chemicals including gases

o Hypoxic conditions, or

o Conditions related to decompression sickness.

• As an indirect result of a physical injury

o Emotional reaction to the accident or injury

o Severe physical disability/impairment, or

o 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.

In this case, the worker did not sustain a head injury during the work-related accident so the first circumstance of a psychotraumatic disability in relation to a secondary organic brain syndrome obviously does not apply.

With respect to the second circumstance, I find the balance of the evidence including the worker’s testimony does not establish that a psychotraumatic disability developed as an indirect result of the work- related low back injury.

The representative submitted the worker did not have any prior psychological conditions. The evidence in the record however, establishes that prior to the accident the worker experienced both chronic mechanical low back pain and psychological symptoms. A January 30, 2017 chart note from Dr. Dautey, a general practitioner, described chronic back pain and major depressive disorder in relation to a May 2016 motor vehicle accident. A February 20, 2018 chart note from Dr. Makinde, the worker’s family doctor, indicated he provided bereavement counselling to the worker following the sudden death of a parent approximately one week before the work accident.

The work accident was not objectively traumatic and the worker provided no testimony specifically linking the development of psychological symptoms or an emotional reaction to the accident itself.

The physical injuries that resulted from the accident were all soft tissue in nature and did not require any traumatic or invasive medical treatments. The worker was determined to have reached MMR with no ongoing work-related impairment for the physical injuries by March 29, 2018. While the worker testified that she continues to experience significant issues with ongoing low back and lower limb pain, I remain bound by the April 24, 2019 ARO decision that the residual effects of the work-related low back injury abated by March 29, 2018 , a period of approximately one month, with no ongoing impairment. The ARO concluded the low back complaints following that date were more likely than not related to pre-existing lumbar spine problems and conditions, including degenerative disc disease.

In an April 12, 2018 chart note after the worker reached MMR for the minor work-related injuries, Dr. Makinde reported the worker had no mood or anxiety concerns. By May 1, 2018, he began to question whether the worker was malingering her condition. Dr. Makinde prescribed the worker anti- depressant medication and documented that on May 15, 2018 she was not compliant with the medications he prescribed. I find it significant that by June 2019, Dr. Makinde began to question the diagnosis of fibromyalgia but specifically stated the fibromyalgia was unrelated to lower back pain.

In a July 10, 2018 chart note, Dr. Makinde stated the worker had been having problems with depression that had been going on for a “long time”. He did not define a “long time” in his clinical notes; however, I find it significant that Dr. Makinde subsequently completed an August 17, 2018 report in response to a request for medical information describing the principal diagnosis as “chronic” lower back pain with anxiety and depression with no reference to the work accident.

I further note that a May 22, 2019 letter from the employer to the worker stated a third party insurance company concluded the worker could return to work without restrictions by January 18, 2019 following two independent medical examinations. There are no further details concerning the independent medical assessments in the record and the worker could not recall the results of the independent medical examinations during her testimony.

Additional medical chart notes in the record from Dr. Singh, the worker’s current family doctor, throughout 2020 and 2021 described depressive symptoms concerning non-work-related domestic issues and chronic back pain in relation to the 2016 MVA. A May 21, 2020 report from Ms. Thede, an occupational therapist, indicated the worker had chronic back pain and exacerbated major depressive disorder resulting from the 2016 motor vehicle accident with no reference to the work injury.

I placed little weight on a February 10, 2023 Community Mental Health Program (CMHP) report from Dr. Light, a psychologist, an August 5, 2023 report from Dr. El-Batnigi at the Vaughn Pain Clinic and a

September 21, 2023 letter from Dr. Singh when considering the second circumstance in Policy 15-04-02 (Psychotraumatic Disability). The clinicians completed the reports five years after the accident.

Dr. Light diagnosed a work-related adjustment disorder and pain disorder; however, I find his report somewhat speculative as he also indicated the worker had been involved in several motor vehicle accidents that resulted in a chronic back problem yet provided no details concerning such incidents. Dr. El-Batnigi described low mood in relation to chronic myofascial pain that as noted previously, the

ARO determined was more likely than not related to a pre-existing condition. Dr. Singh related low mood to chronic pain aggravated by the work-accident; however, he did not provide a psychological diagnosis and I find his letter is inconsistent with his earlier chart notes where he related the worker’s mood symptoms to a history of domestic issues and the 2016 motor vehicle accident and not the work injury.

Therefore, when considering the worker’s testimony, the nature of the accident, the work-related low back injury, the April 24, 2019 ARO decision and the clinical information in the record, I find the balance of the evidence does not establish that the worker developed a psychotraumatic disability as an indirect result of the February 28, 2018 injury.

The third circumstance in Policy 15-04-02 (Psychotraumatic Disability) pertains to the development of a psychotraumatic disability where it 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.

I find the worker does not meet the third circumstance in in the policy as I find she did not developed a psychotraumatic disability in relation to an extended period of disablement resulting from the work injury.

The worker representative submitted the period between the work accident and the date the worker reached MMR was an extended period of disablement. Respectfully, I do not agree. Although Policy

15-04-02 (Psychotraumatic Disability) does not specifically define the term “extended disablement” I am of the opinion that an extended period of disablement following a soft tissue injury such as a strain is a period that persists at least beyond the acute phase or the generally accepted healing time.

In this particular case, the worker confirmed through her testimony she continued working during the acute phase following the work injury and the ARO found the work injury reached MMR with no ongoing impairment by March 29, 2018. The ARO also noted the worker did not stop working until April 10, 2018, which is after the MMR date. Accordingly, as the worker continued working from the date of the injury until the time she reached MMR with no ongoing work-related impairment, a period of approximately one month, I find she did not experience extended disablement after the work injury. As I find the worker did not experience an extended disablement after the work injury, I conclude the third circumstance in Policy 15-04-02 (Psychotraumatic Disability) is not established.

In summary, I find the evidence does not establish the existence or development of a psychotraumatic disability in relation to any of the three circumstances described in Policy 15-04-02 (Psychotraumatic Disability). As such, I conclude the worker is not entitled to benefits for a psychotraumatic disability.

CONCLUSION

I conclude the worker is not entitled to benefits for a psychotraumatic disability. The worker’s objection is denied.

DATED November 27, 2023

C. Goegan

Appeals Resolution Officer Appeals Services Division