DECISION NUMBER:
20230076
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
HELEN SHAW, APPEALS RESOLUTION OFFICER
MAY 11, 2023
ISSUES
The worker is objecting to the Case Manager decision of January 5, 2023 and is seeking:
An extension of entitlement to include additional areas of injury for the neck, mid-back and shoulder; and
Entitlement for a psychotraumatic disability or chronic pain disability (CPD).
BACKGROUND
The worker was employed as a labourer. On May 19, 2021, a beam fell down and struck the worker’s back. Initial entitlement was accepted for a low back sprain/strain with right leg radicular symptoms. The worker was in their mid-twenties when the injury occurred.
No loss of earnings benefits were paid in the claim, as the worker was able to continue working. On January 10, 2022, the worker resigned from their job with the injury employer, reporting that they wanted to focus on their physical and mental health.
A decision dated February 14, 2022, determined the worker had fully recovered from the work-related low back sprain/strain with no further entitlement in the claim. The decision was confirmed in a decision by an Appeals Resolution Officer dated December 20, 2022.
In a letter dated August 3, 2022, the worker representative requested a decision on new areas of entitlement, including a neck injury, mid-back injury and shoulder injury. The letter did not specify if the injury was to the right or left shoulder. They also requested entitlement for a psychotraumatic disability for depression and PTSD or for CPD.
The Case Manager decision of January 5, 2023 determined entitlement was not in order for the neck, mid-back and shoulder. The decision also noted that although psychosocial factors were identified, secondary entitlement for a psychotraumatic disability and CPD was not considered.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
15-05-01 Resulting from Work-Related Disability/Impairment 15-04-02 Psychotraumatic Disability
15-04-03 Chronic Pain Disability
November 3, 2008
April 9, 2021
September 7, 2018
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
The worker representative submitted an Appeal Readiness Form dated February 14, 2023. They objected to the decision of January 5, 2023 and are seeking entitlement for a neck injury, mid-back injury, shoulder injury, depression, CPD and posttraumatic stress disorder (PTSD). No new information was provided with the Appeal Readiness Form. The request for shoulder entitlement was not specific about the right or left shoulder and neither was the Case Manager decision of January 5, 2023; therefore, I will consider entitlement for both the right and left shoulders.
The employer is not participating in the appeal and did not provide a Respondent Form. Initial Entitlement for Neck, Mid-Back and Right and Left Shoulders
I find there is no entitlement for injuries to the neck, mid-back or either shoulder. My reasons are explained below.
According to operational policy 11-01-01, an allowable claim must have the following five points:
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
The entitlement criteria have been accepted for a low back sprain/strain with right leg radicular symptoms. In order to extend initial entitlement to the neck, mid-back and shoulders, there would need to be evidence that the worker sustained injuries to those areas at the time of the original accident. After reviewing the evidence, I find it does not support that the worker sustained injuries to the neck, mid-back or either shoulder. In reaching that conclusion, I specifically note the following evidence:
The Health Professional’s Report (Form 8) dated May 19, 2021, identified only a lower back contusion and sprain/strain, with no reference to other areas of injury.
The Employer’s Report of Injury/Disease (Form 7) indicated the area of injury was the lower back.
A physiotherapy report dated June 4, 2021, identified a lumbar injury with thoracolumbar pain and edema.
A Health Professional’s Progress Report (Form 26) dated June 18, 2021, continued to identify only a lumbar sprain.
A physiotherapy extension request dated July 15, 2021, noted the worker was still being treated for a lumbar injury.
In a conversation with a Nurse Consultant on July 16, 2021, documented in claim file memo X, the worker indicated they were having problems with back spasms, but there was no report of neck or shoulder pain.
In July 2021, the worker switched to a new physiotherapist. Functional Abilities Forms (FAF) completed by the new physiotherapist on July 30, 2021 and August 17, 2021, indicated the injury was to the lower back.
A physiotherapy treatment extension request dated August 17, 2021, noted the area of treatment was still the lumbar spine sprain/strain with possible radiculopathy.
The worker described the accident history to a Case Manager in a conversation on
August 18, 2021, documented in claim file memo A0014. The worker reported that a 16 foot beam swung down and hit the worker on the low back. The worker made no reference to neck, mid- back or shoulder symptoms after the incident.
- An MRI was conducted on the low back on August 19, 2021. There were no unusual findings, other than some mild degenerative changes.
Based on the available evidence, the worker did not report symptoms in the neck, mid-back or either shoulder during the first several months after the injury. Noting the absence of reporting of an injury to these areas, I am unable to establish that the worker sustained an injury to the neck, mid-back or right or left shoulder as a result of the incident on May 19, 2021.
According to operational policy 15-05-01, entitlement for a secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
I also find the evidence does not support that the worker developed secondary injuries that are causally linked to the work-related low back sprain/strain. A physiotherapy extension request dated
October 19, 2021, indicated the worker was reporting some pain in the lower thoracic spine. In my view, pain in the lower thoracic spine was consistent with the recognized low back sprain/strain and would not suggest a new area of injury. There was no reference to symptoms in the upper thoracic or mid-back area. An assessment at the Back and Neck Specialty Program on October 28, 2021, continued to diagnose the worker with a low back strain with radicular right leg symptoms.
Regarding a neck injury, the Specialty Program report of October 28, 2021, indicated the worker was experiencing non-anatomical pain with whole body shaking and hand symptoms inconsistent with the low back injury. The Specialty Program report did not diagnose a neck injury. A report from the Specialty Program Enhanced Functional Treatment program, dated November 10, 2021, indicated the worker had
intermittent neck stiffness and numbness that had occurred a total of four times since the workplace injury, but no diagnosis was provided and no relationship was identified to the workplace low back injury.
Regarding a shoulder injury, I find there is an absence of evidence to establish an injury to the right or left shoulders.
Because I am unable to establish that the worker sustained injuries to the neck, mid-back or either shoulder at the time of the original accident or secondary to the low back sprain/strain, I am unable to extend entitlement to include the neck, mid-back or either shoulder.
Psychotraumatic Entitlement or CPD
I am unable to render a decision on entitlement for a psychotraumatic disability or for CPD because a decision was not made at the Case Management level.
According to operational policy 15-04-02, 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.
It must become manifest within five years of the injury, or within five years of the last surgical procedure.
According to operational policy 15-04-03, for a worker to qualify for compensation for CPD, the following conditions must exist, and must be supported by all of the indicated evidence:
A work-related injury occurred.
Chronic pain is caused by the injury.
The pain persists six or more months beyond the usual healing time of the injury.
The degree of pain is inconsistent with organic findings.
The chronic pain impairs earning capacity.
No actual decision was made on psychotraumatic or CPD entitlement in the decision of January 5, 2023, with the Case Manager determining that no mental health diagnosis was provided and secondary entitlement to a psychotraumatic disability and CPD was not considered.
The worker representative requested entitlement for a psychotraumatic disability for depression and PTSD, or alternatively for CPD. I do not agree with the Case Manager’s determination that there was insufficient information to consider non-organic entitlement, and I specifically note the following evidence:
In a conversation with a Case Manager on October 13, 2021, documented in claim file memo Y, the worker indicated the injury was taking a toll on their mental health, noting a lack of progress in their recovery.
The Specialty Program report of October 28, 2021, indicated that the worker reported feeling negative and down, having disrupted sleep due to pain. The worker reported that in 2017 or 2018, they had a short psychiatric admission for bipolar disorder. The worker did not feel it was an accurate diagnosis. The Specialty Program suggested that a psychology assessment could be considered, if barriers continued to delay recovery. There was evidence of psychosocial factors impacting the worker’s recovery.
The November 10, 2021 report from the Enhanced Functional Treatment program, identified psycho-emotional barriers including fear avoidant behaviour, pain catastrophizing, social withdrawal and high levels of psychological distress.
The Specialty Program discharge report of February 10, 2022, indicated the worker reported feeling better since starting a depression medication prescribed by a walk-in clinic doctor and after quitting their job.
In claim file memo Z, dated January 31, 2022, the Case Manager noted the worker had recovered from the low back sprain/strain and indicated they would case conference with a Nurse Consultant to determine next steps for non-organic issues. It doesn’t appear that further steps were taken regarding the non-organic concerns.
On January 31, 2022, the Case Manager spoke to a physiotherapist at the Specialty Program, documented in claim file memo A. The physiotherapist noted the main barrier was psychosocial and that reports of pain were inconsistent with the findings. The Case Manager was not willing to approve a psychological assessment, noting the evidence of pre-existing mental health concerns.
In claim file memo B, dated December 12, 2022, the Case Manager noted that in order to meet the criteria for a psychotraumatic referral, there must be a DSM-5 diagnosis. Although there was no specific psychological diagnosis, there was evidence of psychosocial barriers, psychological distress and the worker reported starting medication for depression. Despite this evidence, the Case Manager indicated to the Specialty Program on January 31, 2022, that a psychological assessment would not likely be approved, noting the worker’s prior psychiatric history. A prior history of mental health problems does not preclude the possibility of psychotraumatic entitlement in this claim. The Case Manager identified a challenge in obtaining the worker’s pre-injury medical records, noting the worker does not have a family doctor, but that does not mean there are no additional records available. The worker reported a period of psychiatric hospitalization in 2017 or 2018 and also reported getting a prescription for medication for depression from a walk-in clinic, but details of those interventions were not requested from the worker.
Regarding a decision on PTSD, I do not see evidence of that diagnosis in the file, but it could be explored further as part of a review of entitlement for a psychotraumatic disability.
Regarding a decision on CPD, in memo B, the Case Manager determined there was no documented marked life disruption, but I do not see that detailed marked life disruption inquiries were made. Reports from the Specialty Program identified issues with fear avoidant behaviour, pain catastrophizing and pain that was inconsistent with physical findings. This suggests to me that entitlement for CPD needs to be more thoroughly considered and a decision rendered.
In summary, I find the worker is entitled to a decision on psychotraumatic entitlement and/or CPD, based on a more thorough review of the evidence. This would include determining if there are pre-injury or post- injury medical records to be obtained and considering the need for a psychological or psychiatric assessment.
CONCLUSION
I conclude:
There is no entitlement for the neck, mid-back or right or left shoulder, as part of initial entitlement or as secondary conditions.
The operating area is directed to consider entitlement for a psychotraumatic disability and/or CPD and render a decision based on a thorough review of the evidence. This would include determining if there are pre-injury or post-injury medical records to be obtained, obtaining evidence regarding marked life disruption and considering the need for a psychological or psychiatric assessment.
The worker’s objection is allowed in part.
DATED May 11, 2023.
Helen Shaw
Appeals Resolution Officer Appeals Services Division