Worker v. Employer, 2023 CanLII 68354

20230080

REPRESENTED by:

employer

REPRESENTED by:

TELECONFERENCE – June 27, 2023

HEARD by:

l. mansueti, appeals resolution officer

employer resource person

observer

DATED:

JUNE 30, 2023

ISSUE

The worker objects to the Case Manager (CM) decision letter dated December 14, 2022 denying entitlement to benefits for psychotraumatic disability under operational policy 15-04-02.

BACKGROUND

On March 20, 2018, the worker sustained injuries to their neck, low back, shoulders, arms and head when a special needs student forcefully grabbed her by the shoulders and pulled her hair. The worker was working as an Educational Assistant (EA) at the time of injury, and she had worked with the employer for approximately 21 years. It is noted the worker experienced a similar workplace incident in February 2018 when a special needs student grabbed her around the neck and pulled her hair. Entitlement was accepted for a neck strain under the previous claim, and a full recovery was achieved prior to the March 2018 incident.

Entitlement was accepted for sprains/strains of the neck, low back, shoulder and arms, and a concussion for health care and loss of earnings (LOE) benefits. The worker participated in health care treatment and return-to-work (RTW) activities. She returned to work with the employer in May 2018 in a modified capacity at reduced hours. The worker received periods of LOE benefits for sporadic missed time from work. It was anticipated the worker would be able to resume their full regular duties in September 2018; however, she experienced an exacerbation of symptoms and resumed working modified duties. The worker stopped working on November 28, 2018 due to an increase in symptomology.

The employer submitted surveillance video and an investigation report dated January 17, 2019, which showed the worker participating in extra-curricular activities in early January 2019. The operating area determined the worker did not have an ongoing functional impairment as a result of the workplace injury. As such, it was determined the worker recovered from their compensable injuries on November 25, 2018. An Appeals Resolution Officer (ARO) decision dated February 12, 2019 determined the worker misrepresented her level of impairment and confirmed she was no longer entitled to further health care or LOE benefits beyond November 25, 2018.

On November 4, 2021, the worker representative submitted correspondence indicating the worker had been experiencing psychological symptoms related to her compensable injury, which were evident prior to the closure of benefits. The worker representative requested a decision regarding psychotraumatic disability entitlement. The decision letter dated December 14, 2022 communicated there was no entitlement to benefits for psychotraumatic disability.

The worker objected to the decision dated December 14, 2022, and this is now the issue before the Appeals Services Division (ASD).

AUTHORITY

Section 2(1)(c), 13(1), 33 and 119(1) of the Workplace Safety and Insurance Act (WSIA), 1997, as amended

Operational Policy Manual

Published

11-01-03 Merits and Justice

October 12, 2004

15-04-02 Psychotraumatic Disability

September 7, 2018

ANALYSIS

I have carefully considered all of the available information, legislation, relevant operational policies and testimony in reaching this decision. For the reasons that follow, I find the worker is not entitled to benefits for psychotraumatic disability.

Review of the Evidence

The worker testified that she had worked as an EA since 1998, and her main role was to provide assistance to children with special needs, behaviour issues, and aggression. She indicated that the March 20, 2018 workplace incident involved a child aged 11 or 12 years old with autism who was known to be highly aggressive. The child physically attacked the worker from behind, grabbed her bun, and pulled her down. The worker indicated she called out for help, and the child was eventually pulled off her. She stated that during her years as an EA, she had dealt with aggressive children and sustained injuries in the past; however, she indicated she had never been attacked from behind like this before. The worker felt immediate dizziness, shoulder and neck pain, and she could not feel the right side of her face.

Following the workplace accident, the worker received physiotherapy treatment through a Musculoskeletal Program of Care (POC). The worker was referred to the Mild Traumatic Brain Injury (mTBI) Specialty Clinic for an assessment on May 2, 2018. Dr. K. Asem completed the assessment, and recommended the worker continue with physiotherapy and commence occupational therapy (OT) and vestibular rehabilitation. Dr. Asem noted the worker was experiencing significant anxiety and advised the worker to utilize stress management strategies and indicated anxiety medication may be needed. The worker was encouraged to keep in touch with her family doctor.

The record contains a chart note from Dr. J. Wang, the worker’s family doctor, dated May 22, 2018, indicating the worker had been in hospital for migraine headaches. The worker presented with increased anxiety and she was being followed for post-concussion care. Dr. Wang completed a patient profile summary of the worker on July 3, 2018, which does not list any mental health or psychological conditions whatsoever.

The worker returned to work with the employer in May 2018 performing modified duties at reduced hours. As documented in memorandum A0034 dated June 4, 2018, the operating area was informed the worker was obtaining supportive counselling through the Employee Assistance Program (EAP). The record indicated the worker continued to participate in treatment for her compensable injury over the summer break, and it was anticipated she would resume her pre-injury duties in September 2018. The worker reported an exacerbation of symptoms in November 2018, and she was placed on modified duties.

The worker underwent an intake assessment at Vestibular & Orthopaedic Rehabilitation (VOR) on November 9, 2018, and the findings were suggestive of post-concussive syndrome.

The record indicated the worker was engaged in a side business, wherein she sold crafts. The record indicated the she participated in craft shows on November 24 and 25, 2018. The worker testified she had maintained this business pre-injury, and confirmed it was no longer in operation as she could not keep up with it. She stated her craft business generated a “small income, nothing major.”

The worker underwent an OT assessment on November 27, 2018 completed by M. Simpson-Jones. The OT observed the worker became very emotional during the assessment, particularly when recalling her traumatic injury and discussing her recovery to date and her struggles with returning to work. The report stated the worker was experiencing ongoing post-concussive symptoms, visual changes, cognitive deficits, limited activity tolerance, and emotional and psychological changes. The worker reported having feelings of stress, irritability, and low energy. She indicated she felt frustrated with her recovery, especially since she was unable to engage in many of the physical and recreational activities she found meaningful and enjoyable, such as walking, photography, and scrapbooking. The OT recommended the worker be referred to a psychologist for counselling and psychotherapy. The operating area did not proceed with a psychological referral. The request was placed on hold, as documented in memorandum X. It was noted the worker’s approved treatment plan consisted of continuing with the recommended treatment as per the MTBI Specialty Clinic assessment, and if no improvement was observed, additional interventions could be considered.

The worker remained off work effective November 28, 2018, as she was not feeling well due to ongoing symptomology. The worker was subject to surveillance, which was initiated by the employer. The investigation report dated January 17, 2019 indicated the worker was surveilled on January 2 and 3, 2019, where she was observed being driven to Toronto, shopping, walking along city streets, and running errands.

The operating area denied further entitlement under this claim as per the decision letter dated February 21, 2019. The CM determined the worker’s compensable injury resolved as of November 25, 2018. The ARO decision dated February 12, 2020 upheld the CM’s decision. The ARO decision states, in part:

I conclude that as of November 25, 2018, the worker has misrepresented her level of impairment by not reporting an improvement in her medical condition. As such, given the level of misrepresentation in her level of impairment, I am unable to support that the worker has an ongoing functional impairment beyond November 25, 2018 as a result of her workplace injury. I therefore confirm the worker is not entitled to any further LOE benefits of HC benefits beyond November 25, 2018.

As documented in memorandum A0084, the CM contacted the worker on February 11, 2019 to discuss the surveillance videos and their finding that the worker had misrepresented her level of impairment resulting in the closure of WSIB benefits.

The OT report dated February 26, 2019, indicated the worker was having a very difficult time regulating her emotions and managing her stress, anxiety and mood. On numerous occasions, the worker was observed to become overwhelmed emotionally, tearful, and sobbing when discussing challenging situations. The OT indicated the worker recently experienced “a significant emotional setback” when she was contacted by the CM about the surveillance footage that was obtained. The worker indicated she was subjected to accusatory questioning which shocked and upset her tremendously. At the oral hearing, the worker stated through tearful testimony that being surveilled set her back a lot, and it deeply affected her.

The OT report indicated that the interaction with the CM and the thought of being watched without her knowledge appeared to trigger an extreme stress response, and as a result, she experienced successive panic attacks and uncontrollable anxiety. The OT expressed concern for the worker’s mental well-being, and strongly recommended she see her family doctor. It was noted Dr. J. Wang, the worker’s family doctor, assessed the worker’s mental health, and prescribed her antidepressant medication and anxiety medication. The OT reiterated their recommendation for psychological intervention to further assess and treat her significant mood, anxiety and trauma issues, and recommended a psychiatric consultation given her significant mental health issues following the CM’s phone call.

M. Simpson-Jones issued a letter to Dr. Wang dated February 27, 2019 expressing concerns regarding the worker’s mental health status. The letter indicated that prior to the WSIB’s notification the worker’s entitlement ended under this claim, she was “having a very difficult time regulating her emotions and managing her stress, anxiety and mood.” It was noted the worker experienced a significant emotional setback when the CM contacted her about the surveillance video, which shocked and upset her. The OT recommended several interventions to be initiated on an urgent basis given the worker’s concerning mental health presentation; including psychotherapy, psychiatric consultation, and neurologist referral.

The worker’s mental health challenges were documented in Dr. M. Rathbone’s neurological consultation report dated April 29, 2019. The worker indicated they were feeling more emotional since the work accident, and she endorsed feelings of anxiety and panic attacks. The report indicated the worker started taking Wellbutrin and Clonazepam twice per day, approximately 2 months earlier. It was also noted the worker was taking Lorazepam on an as needed basis. The worker advised she was seeing a counsellor, and a referral to see a psychiatrist was discussed with Dr. Wang. Dr. Rathbone indicated the worker would benefit from psychotherapy and medical management for low mood and anxiety.

Dr. J. P. Clayton, Psychologist, submitted a report dated July 15, 2019 indicating they had seen the worker for several sessions of Trauma/Adjustment Counselling beginning on May 31, 2019. Dr. Clayton submitted the worker was suffering from Posttraumatic Stress Disorder (PTSD), Generalized Anxiety and Depression as a direct result of the incident in her workplace in which she was assaulted by a student and sustained severe whiplash and a concussion. The worker endorsed being terrified of another hit to the head, and this fueled isolation and withdrawal from previously enjoyed activities. The worker endorsed having severe anxiety-related symptoms including heart palpitations, difficulty breathing, shakiness, hot and cold sweats, unsteadiness and a general inability to relax. She also presented with severe depressive symptoms including sleep and appetite disturbance, difficulty with concentration, memory and focus, sad mood and tearfulness.

Dr. H. Ghuman, Psychiatrist, assessed the worker on November 6, 2019. The worker’s provisional diagnoses were PTSD, Generalized Anxiety Disorder and Major Depressive Disorder (MDD), in partial remission. Dr. Ghuman provided medication recommendations.

A. Weber-Thompson, Registered Social Worker (RSW), submitted a report dated October 29, 2021 indicating the worker had been seen for eight 1-hour psychotherapy sessions from May 28, 2019 to November 25, 2020. The report indicated the worker’s presentations during therapy sessions was consistent with the mental health diagnoses provided by Dr. Clayton. The worker was recommended to continue with cognitive behavioural therapy (CBT), and engage in Eye Movement Desensitization and Reprocessing (EMDR) therapy for PTSD. The worker testified she has continued to receive counselling, and she has remained off work.

Assessment of the Evidence

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

A worker is entitled to benefits when disability/impairment results from a work-related personal injury by accident. Disability/impairment includes both physical and emotional disability/impairment.

The policy indicates that as a general rule, 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.

Entitlement for psychotraumatic disability 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.

In this case, the worker did not suffer a traumatic head injury nor was she exposed to toxic chemicals or gas.

The worker representative submitted entitlement to benefits for psychotraumatic disability ought to be granted on the basis the second criterion has been met. The worker representative advanced the worker experienced an emotional reaction to the accident, citing it was objectively traumatic in nature, and it significantly contributed to her psychotraumatic disability, as confirmed by Dr. Clayton’s psychological assessment.

To support his arguments, the worker representative referenced several Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions for my review and consideration. I have rendered this decision based on the merits and justice of this particular claim in accordance with Operational Policy 11-01-03, which states every decision shall be based on the facts and circumstances of the case, the relevant WSIB policies, and the relevant provisions of WSIA. In review of the WSIAT decisions submitted for my review, I prefer to rely on the evidence specific to the worker before me, and the facts of this case.

I have not placed significant weight on these WSIAT decisions as they involve other workers in different claims with different facts and circumstances. For instance, WSIAT Decision No. XXXX/XX involves a worker who was determined to have fully recovered from a back injury, and their LOE benefit entitlement and psychotraumatic disability entitlement ended. The issues in dispute before the Panel included ongoing entitlement for the low back, LOE benefit entitlement, and ongoing psychotraumatic disability entitlement. The Panel determined the worker had ongoing entitlement to psychotraumatic disability entitlement including a non-economic loss (NEL) assessment, and a low back permanent impairment (PI) was not accepted. This case differs substantially from the case before me, in that it involved ongoing entitlement to psychotraumatic disability, rather than initial entitlement for a psychotraumatic disability as is the case here. In other words, the worker in the WSIAT case had met the threshold for entitlement for psychotraumatic disability, and this was not an issue before the Panel.

In WSIAT Decision No. YYYY/YY, the worker was 66 years of age at the time of a compensable motor vehicle accident (MVA). The worker sustained multiple soft tissue injuries, and their LOE benefit entitlement was limited as per the two-year post-accident legislated limitation for older workers, despite being medically authorized off work. The Vice-Chair determined the modified work offered by the employer was not suitable. An LOE benefit extension was approved. The decision indicated the worker’s inability to work and dire financial situation was directly caused by the compensable injuries. The Vice-Chair determined the worker’s psychotraumatic disability was allowable as a direct reaction to his injuries and physical losses. I find the facts and circumstances giving rise to the worker’s psychotraumatic disability in the WSIAT case differs substantially from the case before me.

The employer representative submitted the worker’s emotional reaction and psychological difficulties arose in connection to being the subject of video surveillance, which in his view, is not a responsibility of this claim. The worker representative argued the video surveillance is in fact a consequence of the workplace injury. To support his argument, the worker representative referenced WSIAT Decision ZZZZ/ZZ. In the WSIAT case, the worker, a Campus Police Sergeant, was granted entitlement for Traumatic Mental Stress (TMS) under operational 15-03-02, as it was confirmed the worker had suffered an acute stress reaction to the traumatic workplace incident. Shortly after the incident, a person involved in the incident made a complaint of assault against the worker to the local police force. The employer offered the worker modified work, which was declined. The employer objected to the payment of further LOE benefits on the basis the worker declined suitable modified work. The employer was of the view the investigation into the assault charge was a non-compensable stressor. The investigation did not result in any charges against the worker. The Panel determined the investigation into the complaint against the worker was a compensable factor in his psychological symptoms, and the employer’s appeal was denied. While I appreciate the worker representative’s argument, I find this WSIAT case is not comparable to the case before me. Being the subject of an assault investigation in relation to the workplace incident differs substantially to being the subject of video surveillance from which the worker was found to have misrepresented her level of impairment, as confirmed by the February 2020 ARO decision.

I find the second criterion has not been met in this case. In review of the contemporaneous medical evidence, I acknowledge the worker was experiencing anxiety symptoms, as noted by Dr. Asem and Dr. Wang. It is noted the worker was encouraged to utilize stress management strategies and perhaps consider taking anxiety medication; however, there was no indication the worker was recommended to receive formal psychological attention such as a psychological or psychiatric assessment, or engage in psychotherapy at that time. It was not until the worker was assessed by the OT on November 27, 2018, that she was recommended to undergo a psychological assessment and engage in counselling and psychotherapy. The early medical reporting leads me to find the worker was likely experiencing some psychological difficulties owing to the workplace accident and/or injury; however, a psychological impairment was not evident at that time. It must be noted that in February 2019 the worker’s entitlement to benefits ceased effective November 25, 2018, as it was determined the worker misrepresented her level of impairment, as confirmed by the ARO decision dated February 12, 2020. I am bound by findings and decision rendered by the ARO.

The OT reassessed the worker on February 26, 2019, and it was noted the worker’s mental health status had deteriorated. The worker described having a “significant emotional setback” when she was contacted by the CM and she was advised surveillance footage was taken of her. The worker testified that this event set her back a lot, and she was deeply affected by being surveilled. The report indicated the worker’s interaction with the CM and the thought of being watched without her knowledge appeared to trigger an extreme response, which manifested in successive panic attacks and uncontrollable anxiety. At this point, the OT urgently recommended mental health interventions in light of the worker’s current mental health status. Dr. Rathbone’s April 2019 consultation report indicated the worker started taking anti-depressant and anti-anxiety medication 2 months prior, which is around the time the worker was contacted by the CM regarding the surveillance video and her benefit entitlement ended.

The worker underwent a psychologist assessment completed by Dr. Clayton on July 15, 2019. Dr. Clayton diagnosed the worker with PTSD, Generalized Anxiety and Depression as a direct result of the workplace incident. While I appreciate Dr. Clayton’s medical opinion and acknowledge it has probative value, I cannot ignore the fact this psychological assessment occurred several months after the worker’s claim was closed for misrepresenting her level of impairment. It must also be noted Dr. Clayton makes no mention of the significant emotional setback the worker experienced as a result of learning about the surveillance video and the closure of WSIB benefits.

In summation, I find there is insufficient evidence to support the worker’s psychotraumatic disability is an indirect result of the work-related injury. The contemporaneous medical evidence in the case record supports the worker was experiencing some psychological difficulties post-accident. However, there is a lack of medical evidence to support the worker’s mental health difficulties at that time had risen to the level of a psychotraumatic disability; evidenced by the fact a psychological diagnosis was not confirmed. This case is complicated by the fact there was a relevant intervening event wherein the worker experienced a significant emotional setback due to being the subject of video surveillance and she was subsequently found to have misrepresented her level of impairment, which resulted in the closure of WSIB benefits. I find the circumstances surrounding this triggering event likely overwhelmed the impact of her post-accident anxiety symptomology, rendering it less significant. This is evidenced by the fact that subsequent to the triggering event, the worker was prescribed anti-depressant and anti-anxiety medication and she was recommended to undergo a psychological and psychiatric assessment on an urgent basis. I find the worker’s emotional reaction and psychological difficulties that arose in connection to being the subject of video surveillance that resulted in the closure in benefits is not a responsibility of this claim. It must be noted the development of mental health difficulties arising out of a decision made by the WSIB does not meet the intent of the criteria necessary to grant entitlement to a psychiatric disability under operational policy 15-04-02.

I will now turn my attention to the third criterion. The worker representative submitted it is incorrect to accept that a precursor to entitlement to psychotraumatic disability is that the worker needs to have a permanent organic impairment. I agree with the worker representative in that operational policy 15-04-02 does not specify that an organic permanent impairment is necessary to grant entitlement to psychotraumatic disability. However, with respect to the third criterion for entitlement, it clearly states the psychotraumatic disability must be shown to be related to extended disablement, which is in keeping with an anticipated ongoing impairment or established PI, which is not the case here. The facts and circumstances of this case lead me to find that the worker’s psychological difficulties are attributable to a number of non-medical, socioeconomic factors, the majority of which have not been shown to be clearly and directly attributable to the work-related injury. This finding is supported by the fact that the worker was determined to have recovered from her work-related injury on November 25, 2018, as confirmed by the ARO decision dated February 12, 2020. In the absence of an extended disablement coupled with the significant intervening event that caused a significant emotional setback following the closure of WSIB benefits, I am unable to accept the worker’s psychotraumatic disability has been shown to be directly and clearly related to the work injury.

Based on the foregoing, I find the criteria for psychotraumatic disability has not been satisfied in this case. Therefore, the worker is not entitled to benefits for psychotraumatic disability.

CONCLUSION

I conclude the worker is not entitled to benefits for psychotraumatic disability.

The worker’s objection is denied.

DATED June 30, 2023

L. Mansueti

Appeals Resolution Officer

Appeals Services Division