Worker v. Employer, 2023 CanLII 74871

20230093

TELECONFERENCE – JUNE 16, 2023

HEARD by:

DATED:

JUNE 21, 2023

ISSUE

The worker is objecting to the denial of entitlement for a recurrence of posttraumatic stress disorder (PTSD), including loss of earnings (LOE) benefits from July 21, 2022 to October 18, 2022, in the Case Manager decision of November 30, 2022.

BACKGROUND

The worker was employed as a correctional officer. On July 4, 2017, the worker reported symptoms of PTSD, which they attributed to two incidents of possible drug overdoses involving inmates. The worker was 35 years old when the injury was reported.

In a decision dated September 27, 2017, entitlement was allowed for Traumatic Mental Stress (TMS), including payment of full LOE benefits from July 5, 2017 to July 11, 2017, when the worker was off work. In a decision dated May 8, 2018, entitlement was updated to allow for PTSD in a first responder. The worker participated in treatment with a psychologist starting on October 30, 2017, and continuing until June 2018. The worker then started treatment with a different psychologist in July 2018.

During a shift on May 8, 2018, the worker was assigned to watch an inmate who had consumed jail-brew alcohol and psychiatric medications, despite the fact that the worker was supposed to be on accommodated duties. The worker was off work and was paid full LOE benefits from May 21, 2018 to June 3, 2018. Partial LOE benefits were paid from June 3, 2018 to July 15, 2018, when the worker was working reduced hours.

It was determined that the worker had reached maximum psychological recovery (MPR) by

October 13, 2020, with a permanent impairment for PTSD. On November 5, 2020, the worker was rated with a 5% non-economic loss (NEL) benefit for the permanent impairment. The employer was able to permanently accommodate the worker’s restrictions in the pre-injury job, by avoiding certain triggers.

On October 11, 2022, the worker submitted an Worker’s Continuity Report (REO6), reporting lost time from work from July 21, 2022 to October 18, 2022, because of high anxiety at work, trouble sleeping before and after work, headaches, agitation at work and experiencing symptoms similar to PTSD.

The decision of November 30, 2022, determined there was evidence of a worsening of the worker’s mental health symptoms, but it was due to other stressors and not the work-related PTSD.

AUTHORITY

Operational Policy Manual

Published

15-02-05 Recurrences

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find full LOE benefits are in order from July 21, 2022 to October 18, 2022. My reasons are explained below.

The worker submitted an Appeal Readiness Form dated March 12, 2023 and also provided evidence at the hearing.

The employer is not participating in the appeal and did not submit a Respondent Form.

According to operational policy 15-02-05, 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.

The Case Manager decision of November 30, 2022, determined the worker’s mental health symptoms had deteriorated but concluded the symptoms in July 2022 were not compatible with the work-related PTSD.

In order to assess if there was a significant deterioration below the NEL level that is compatible with the original injury, I reviewed the worker’s symptoms and level of function at the time they reached MPR in October 2020, and at the time of the recurrence in July 2022.

I find the following evidence explains the worker’s level of function around the time of the MPR date on October 13, 2020:

The Community Mental Health Program (CMHP) progress report dated June 14, 2020, noted the worker was continuing their steady progress of stabilization, was demonstrating positive communication skills in the workplace to reduce anxiety producing situations and was practicing better calming techniques when triggered. The worker continued to have sleep disruption before day shifts due to anxiousness. The worker was increasing exercise and socialization but continued to deal with high anxiety and panic attacks related to their presence in high trauma areas.
The CMHP progress report dated June 24, 2020, indicated the worker had found a positive regime for managing stressors and triggers at work, by developing anxiety reducing techniques, improved communication skills and a confidence that had reduced high reactions. The worker was still have anxiety leading up to work but was managing it better. The worker was focused on becoming more balanced in life.
The CMHP progress report dated September 14, 2020, noted that the worker continued to maintain their capabilities in the workplace, by recognizing triggers and using strategies to manage them. The worker had better communication with management, with accommodations in place. The worker continued to be more involved in social activities and hobbies.
The psychology assessment report of October 6, 2020, from the Mental Health Specialty Program, noted the worker continued to take Effexor daily and estimated their functioning at 65% to 70% of preinjury capacity. The worker was managing activities of daily living without help. The worker reported intermittent but at times ruminative worry about work stresses and was still having some dreams and recollections about the workplace incidents that triggered the PTSD. The diagnosis was Adjustment Disorder with Mixed Anxiety and Depressed Mood Mild and PTSD, mild, in partial remission.

The evidence shows that around the time of the recurrence on July 21, 2022, the worker was reporting the following symptoms:

A chart note from the nurse practitioner dated June 20, 2022, indicated the worker had a long standing history of anxiety and PTSD and the worker reported being compliant with taking 75 mg of Effexor. The worker reported that approximately once a month, they might need to miss work due to increased anxiety, but otherwise was able to manage the symptoms.
The chart note of July 21, 2022, indicated the worker reported worsening anxiety and depression and had recently missed work multiple times. The worker was feeling more down, was oversleeping, had low energy and motivation and difficulty keeping up with activities of daily living. There was an increase in worrying and overthinking. The worker attributed the worsening symptoms to a toxic work environment, with bad behaviour from colleagues. Effexor was increased to 112.5 mg. The worker was referred for an urgent counselling appointment.
According to a counselling note dated August 11, 2022, the worker saw some really difficult things in their job as a full time guard at a jail and was struggling with the work environment. The worker felt many of their colleagues were also struggling with mental health issues, leading to a toxic work environment. The worker was experiencing a lot of anxiety related to work, with rumination and lack of sleep. The worker expressed concerns about how jails are run.
A note from the Nurse Practitioner on August 12, 2022, indicated the worker was not yet seeing improvement from the increase in Effexor.
A counselling note dated August 24, 2022, indicated that in addition to the PTSD, the worker was also struggling with aggressive co-workers. The worker’s mood was improving, with some ongoing anxiety.
A chart note dated August 31, 2022, indicated that the worker reported 50% improvement in symptoms, with anxiety being better controlled, improved sleep, increased energy, less frustration and improved concentration.
A chart note dated October 7, 2022, noted continued improvement and the worker planned to return to work on October 18, 2022.
On a Worker’s Continuity Report (REO6), dated October 11, 2022, the worker reported feeling high anxiety at work. The worker noted that the prescription for Venlafaxine or Effexor had increased from 75 mg to 112.5 mg and a new prescription for 2 mg of Aripiprazole had been added.
In a conversation with a Case Manager on November 2, 2022, documented in claim file memo X, the worker reported that they had been paid short term and long term disability benefits for the time lost from work from July 21, 2022 to October 18, 2022. The worker reported that they did not want to claim more lost time in this claim because they did not want to work with their previous Case Manager. The worker noted that in the months leading up to July 21, 2022, they had become increasingly agitated at work, due to hearing talk about other deaths in the institution, and coworkers discussing inappropriate behaviors. The worker noted that based on their permanent job accommodations, the worker was not to work in the remand unit or the main control unit and was posted in the medium security units performing tours, serving meals, processing inmate requests and responding to mental health issues and physical injuries. Due to lack of space in the jail, they were putting maximum security and remand inmates into the medium security units. The worker started having flashbacks to the remand locations and the original injury. The worker reported the symptoms to a Nurse Practitioner, who advised the worker to take time off work.

The Case Manager decision of November 30, 2022, determined LOE benefits were not in order for the recurrence of July 21, 2022 to October 18, 2022. The Case Manager acknowledged there was a significant worsening of the worker’s mental health symptoms, but determined the worsening symptoms were caused by other factors, such as a toxic work environment caused by aggressive co-workers. The recurrence was denied because the Case Manager determined that the work related PTSD was not the most significant contributing factor in the deterioration of the worker’s symptoms.

I have considered the Case Manager’s rationale, but I am not persuaded that it is necessary to establish that the work related PTSD is the most significant contributing factor in the deterioration. According to operational policy 15-02-05, to establish that the significant deterioration is clinically compatible with the original injury/disease, the WSIB must determine that:

the body parts and/or functions affected now are the same as, or related to, those affected by the original injury/disease, and
there is a causal link between the significant deterioration and the original injury/disease.

The worker testified that the symptoms that recurred in July 2022 were consistent with the PTSD symptoms they experienced when the condition first developed in 2017, and included increased anxiety, excessive worry and bad dreams. The worker acknowledged there was some difficult behaviour from co- workers but denied that incidents with co-workers were the primary factor in the worsening of symptoms. The worker testified that they were starting to experience some worsening of PTSD symptoms when an incident occurred with a co-worker calling the worker names. The worker explained that the work environment for correctional officers can be challenging, with most employees being under a lot of stress and some struggling with mental health problems because of the nature of the job. The worker testified that they could usually cope with those types of incidents, but the ongoing presence of PTSD symptoms made it more difficult to deal with the normal job pressures.

After considering all the evidence, I find that full LOE benefits are in order from July 21, 2022 to October 18, 2022, subject to any assignment of benefits for disability benefits paid during that period. In July 2022, the worker started reporting an increase in symptoms compatible with PTSD, including increased anxiety, excessive worry and bad dreams. Although the worker was also experiencing some

other occupational stressors, they have a recognized permanent impairment for PTSD. I am satisfied that the worker experienced an increase in PTSD symptoms, leaving them less capable of coping with the usual stressors in the correctional officer job. The evidence supports that the significant deterioration in PTSD symptoms is compatible with the original injury.

I am also satisfied that the significant deterioration in the PTSD symptoms, temporarily prevented the worker from working, noting that time off work was supported by the medical records from July 2022 to October 2022.

CONCLUSION

I conclude the worker is entitled to benefits for a recurrence of PTSD on July 21, 2022, including payment of full LOE benefits from July 21, 2022 to October 18, 2022, subject to any assignment of benefits.

The worker’s objection is allowed.

DATED June 21, 2023.

Helen Shaw

Appeals Resolution Officer Appeals Services Division