DECISION NUMBER: 20230086

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOT PARTICIPATING)

HEARING: HEARING IN WRITING

HEARD by: SUJETHRA NADARAJAH, APPEALS RESOLUTION OFFICER
DATED: JUNE 29, 2023

ISSUES

The worker objects to the following two Case Manager (CM) decisions:

1. The December 16, 2020 denial of full loss of earnings (LOE) benefits beyond November 2, 2020; and

2. The October 25, 2022 determination that the worker reached maximum psychological recovery (MPR) with no permanent impairment as of September 22, 2022.

BACKGROUND

On February 8, 2019, this worker, a personal support worker, slipped and fell walking to a client’s home and injured their left shoulder. Entitlement was granted for left shoulder tear and bursitis and neck strain.

The April 14, 2020 decision denied entitlement to degenerative disc disease with a small C4-C5 disc protrusion and a C5-C6 large disc protrusion. Entitlement was limited to a neck strain only.

The December 16, 2020 decision denied full LOE benefits beyond November 2, 2020 as the employer had suitable modified duties. The CM determined the worker would be paid partial LOE benefits based on the November 3, 2020 RTW Meeting Plan from November 2, 2020 to January 25, 2021. The worker representative (WR) objected to this decision.

The May 5, 2021 decision extended entitlement to include a C5-C6 disc herniation. This decision also determined the worker reached maximum medical recovery with a permanent impairment for their neck injury on December 16, 2020.

The worker reached maximum medical recovery with a permanent impairment for their left shoulder on June 7, 2021. The worker received a 19% Non-Economic Loss (NEL) benefit for their left shoulder tear and bursitis and cervical spine C5-C6 disc herniation.

On December 14, 2020, the WR requested entitlement to benefits under the psychotraumatic disability (PTD) policy. The January 5, 2022 decision granted entitlement to Major Depressive Disorder (MDD) under the PTD policy.

The October 25, 2022 decision determined the worker reached MPR without a permanent impairment as of September 22, 2022. The WR objected to this decision.

The February 28, 2023 reconsideration upheld the December 16, 2020 and October 25, 2022 decisions.

On January 20, 2023, the WR submitted the Appeal Readiness Form (ARF). The worker’s objection to the denial of full LOE benefits starting November 2, 2020 and the MPR determination form the basis of the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-05 – Determining Permanent Impairment
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)

November 3, 2014
January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find partially in favour of the worker. As I will explain, the worker is entitled to partial LOE benefits from November 2, 2020 to January 25, 2021 and the worker has temporary entitlement to PTD benefits beyond September 22, 2022.

In reaching my conclusion, I also reviewed the WR ARF and January 12, 2023 submission. It is opined that the worker’s psychological condition be deemed a permanent impairment and a NEL benefit be granted. They also request full LOE benefits from October 19, 2020 and ongoing.

The WR argued the worker had worked with the employer for 19 years without any issues, and post- injury, the worker felt misunderstood and demeaned by their employer/supervisor, who pressed them into working more hours when the worker was unable to do so. Accordingly, the WR argued the worker’s ongoing psychological problems were related to their compensable injuries and difficulties with the return to work process.

In addition, the WR argued the graduated return to work plan was not suitable and within the worker’s functional abilities and skill level. The prolonged neck flexion required to perform the role of screener contravened the cervical restrictions the worker had and tasks such as providing insulin and catheter placement exceeded the worker’s skill level. The worker’s psychological condition also affected the worker’s ability to return to work. Their low self-efficacy in applying pain and mood management skills, low confidence with respect to returning to work and their own perception of their abilities rendered the modified duties unsuitable.

Employer Position

The employer was not a participant in the appeal; thus, no information was submitted for consideration.

1. LOE Benefits beyond November 2, 2020

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states in part:

Full LOE

If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.

This policy indicates LOE benefits are approved and continue as long as the worker is prevented from returning to any type of work because of their work-related injury or if it is determined that no suitable work is available.

In this case, the worker is not entitled to full LOE benefits beyond November 2, 2020 as the employer had suitable modified duties based on the November 3, 2020 RTW Meeting Plan. The worker is entitled to partial LOE benefits from November 2, 2020 to January 25, 2021 only.

Medical Evidence

The October 9, 2020 family doctor letter recommended the worker reduce their hours at work to four-hour shifts because of increased pain levels, anxiety and new developing right shoulder and arm radicular pain. The worker was having side effects from the prescribed medication, and so the family doctor was trialling new medication to stabilize the worker’s mood.

The October 14, 2020 Upper Extremity Specialty Program report noted the worker had full abilities for walking, standing, sitting, stair climbing, ability to use public transit and driving. The worker was limited to 5 kg for lifting/pushing/pulling with seldom/rare repetitive bending and twisting of the left shoulder. The assessors supported the graduated return to work plan of being a full-time permanent screener.

The October 30, 2020 family doctor letter recommended the worker to layoff work due to severe anxiety, depression and high pain levels. The worker was pushed beyond their limits in their attempt to return to normal hours of work and the doctor’s recommendation to remain at four hours was not implemented.

The worker decompensated and is not capable of returning to work.

The November 12, 2020 Back and Neck Specialty Program report noted the worker had full abilities for walking, standing, sitting, stair climbing, ability to use public transit and driving short distances. The worker was limited to 5 kg for lifting/pushing/pulling and directed to avoid any work at or above shoulder height. The worker was to avoid repetitive or sustained bending/twisting of the cervical spine. The assessors cleared the worker to return to work at a sedentary PCD level taking micro-breaks, rotating tasks and changing positions. The recommendation was for a graduated return to work.

The November 30, 2020 Community Mental Health Program report did not make a recommendation for the worker’s capacity to work. Rather, the psychologist noted, “same as in previous report, if she is cleared by her [family doctor] for RTW, duties assigned should be within her knowledge and previous experiences, she is not in psychological condition for novel tasks at the present time. Plus, she consistently reported that she is not able to cope with her pain after 2-4 hours”.

Modified Duties Offer

The November 3, 2020 RTW Meeting Memo outlined the modified duties available for the worker. The worker was expected to work four-hour shifts, five days a week from November 2-30, 2020. As a screener, would ask Covid-19 screening questions and provide supplies to co-workers. In addition, the worker would complete companionship duties where they sat and spoke to clients to keep them company. The worker was able to work at their own pace, take micro-breaks and change positions as needed. No lifting activities.

The November 23, 2020 RTW Meeting Memo outlined the gradual increase in the worker’s hours from four hours to eight hours by January 25, 2021. The worker could continue doing screening and companionship duties at work. The worker was able to work at their own pace, take micro-breaks and change positions as needed. No lifting activities.

LOE Determination

Upon review of the medical information on file, I find the worker was partially disabled and capable of working in a sedentary capacity with limited use of the left arm (per the restrictions outlined in the medical reports).

I find the clinical evidence supported the worker was capable of taking part in a graduated return to work plan as outlined by the Specialty Program reports. Although the family doctor recommended the worker to layoff on October 30, 2020, the reason was that the worker was unable to increase their work hours. As the November 3, 2020 RTW Meeting Memo implemented the family doctor’s recommendations, I find the worker would have been capable of returning to work.

While the worker did have ongoing anxiety and psychological barriers, the November 30, 2020 Community Mental Health Program report did not recommend the worker to remain off work. They deferred this decision to the family doctor but did comment that if the worker were cleared, they could do tasks within skill level. As the November 3, 2020 RTW Meeting Memo did not include new tasks for the worker learn, I find the modified duty offer was within the worker’s functional capacity.

In addition, despite the family doctor recommendation to stay off work, the November 12, 2020 Specialty program report did not advise the worker was totally disabled and unable to take part in the graduated return to work plan. I place significant weight on the findings from the Specialty Program reports because a specialist in the field completed multiple assessments of the worker and they had a good understanding of the worker’s symptoms and recovery.

Although the WR argued the screener duties were beyond the worker’s functional abilities as it required prolonged neck flexion, given the worker had the ability to self-pace, make positional changes and take micro-breaks, I do not find this task was outside of the worker’s restrictions. Further, the October 14, 2020 Upper Extremity Specialty Program report noted, “should [the worker] be allowed to work at her own pace, take breaks as needed, change position as needed, placed items closely and hold items up to avoid bending of neck to look down[,] We support this plan and she is currently doing the tasks of a Screener”. This supports this job duty is suitable for the worker based on their accepted functional abilities.

Accordingly, I find the worker is entitled to partial LOE benefits based on the November 3 and 23, 2020 RTW Meeting Memo plans from November 2, 2020 to January 25, 2021. Beyond this, as the employer

was capable of providing modified work for full-time hours, and I find the worker was capable of working full-time hours, the worker is not entitled to any further LOE benefits.

2. MPR

Policy 15-01-05, Determining Permanent Impairment, states, in part,

A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.

Maximum medical recovery (MMR) means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.

Permanent impairment means impairment that continues to exist after the worker reaches MMR.

Determining work-relatedness

The decision-maker must confirm that the ongoing impairment is work-related by considering

• whether the current diagnosis is the same as or compatible with the initial work-related injury/disease diagnosis

• whether the clinical evidence of impairment is related to the current diagnosis, and

• whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment.

If the ongoing impairment is caused solely by a pre-existing condition and/or non-work-related factor, there is no permanent impairment.

As provided above, MPR is achieved when there is a plateau in recovery and no significant improvement in the work injury is expected. I find in this case, the worker did not reach MPR without a permanent impairment for their MDD as of September 22, 2022.

Medical Evidence

The May 25, 2022 Community Mental Health Program (CMHP) Assessment Form noted, “she was on modified duties but reported being harassed at work, she felt aggravation of both her physical and psychological symptoms, and her FP put her on sick leave”. The worker was very anxious, distracted, frustrated and constantly ruminating about the harassment she felt at work. The worker, “while crying, she explained how her manager/supervisor was constantly picking on her and humiliated her in front of the other workers”.

The July 17, 2022 CMHP Progress Form noted the worker had vivid traumatic memories from the harassment they felt while at work. The worker’s diagnostic symptoms were aggravated and given the time that past and the chronicity of the worker’s symptoms, return to work was not recommended.

The psychologist advised the next step would be a psychiatric assessment arranged by WSIB to discuss the worker’s treatment goals and next steps.

The September 15, 2022 conversation with the psychologist revealed the worker’s last session was in August 2022. The worker was improving with treatment, but had made a decision they could not return to work. The psychologist advised ongoing treatment would focus on quality of life.

The September 22, 2022 psychologist discharge letter stated treatment would end noting the worker was not ready to work on return to work.

MPR Determination

Based on the above, I find the worker did not reach MPR at the time of treatment discharge. As per the last progress report, the diagnosis remained the same and the worker was improving with treatment and had not plateaued. While the worker had issues and concerns about their experiences with the employer, I find they are related to the work injury and the resulting permanent impairment. This is supported by the fact that the worker had a long employment history with no issues until the worker’s return to work post work injury.

In addition, the psychologist, prior to the discharge recommendation (after speaking the Case Manager and the Nurse Consultant on file), recommended a psychological and psycho-pharmacological assessment to determine next steps for the worker. As this assessment did not take place, I do not find the medical evidence in the file supports MPR with no permanent impairment at September 22, 2022.

The worker has ongoing temporary entitlement to PTD beyond September 22, 2022.

CONCLUSION

The issues are concluded as follows:

1. The worker is entitled to partial LOE benefits November 2, 2020 to January 25, 2021. LOE benefits beyond this date are denied.

2. The worker has ongoing temporary entitlement to PTD beyond September 22, 2022.

The worker’s objection is allowed in part.

DATED June 29, 2023

Sujethra Nadarajah
Appeals Resolution Officer
Appeals Services Division