DECISION NUMBER:

20230092

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

TELECONFERENCE – MAY 12, 2023

HEARD by:

DATED:

HELEN SHAW, APPEALS RESOLUTION OFFICER

JUNE 9, 2023

ISSUE

The worker is objecting to the denial of entitlement for a psychotraumatic disability, in the Case Manager decision of March 29, 2022.

BACKGROUND

The worker was employed as a drywall taper. On August 17, 2018, the worker fell off a scaffold while carrying a bucket of mud and landed on their left heel. The worker was 40 years old when the injury occurred.

Initial entitlement was allowed for a left foot fracture at the Achilles insertion in the calcaneus. Treatment included a cast on the left foot. Pain later started to develop in the right foot and ankle and a cast was required for the right foot. Secondary entitlement was allowed for a right foot Achilles tendon partial thickness tear with retrocalcaneal bursitis and Haglund’s lesion. Full loss of earnings (LOE) benefits were paid beginning August 18, 2018.

In December 2018, the worker’s spouse reported concerns about the worker’s mental health. On December 13, 2018, a psychological assessment and temporary treatment sessions were approved for the worker, but the worker did not pursue it.

A permanent impairment was recognized for the right foot Achilles tendon partial thickness tear with retrocalcaneal bursitis and Haglund’s lesion, with the worker reaching maximum medical recovery (MMR) as of October 21, 2019. Permanent restrictions were recognized for walking on uneven ground, repetitive crouching, ladder climbing on an occasional basis and working within medium physical demands. On May 6, 2020, the worker was awarded a 2% non-economic loss (NEL) benefit for the permanent impairment.

The worker was provided with return to work (RTW) services, including a psychovocational assessment, to determine if the worker was going to require a retraining plan. The worker expressed interest in

working as a Community Social Worker and participated in interim training activities, including computer skills training. Subsequently, it was determined that the worker could return to the pre-injury job duties as a drywall taper, with accommodations. In a decision dated September 17, 2020, LOE benefits ended as of October 14, 2020, because the worker was considered fit for their pre-injury job. The worker did not return to work and disagreed about their fitness for pre-injury work.

On November 30, 2021, the worker representative sent a psychological assessment report dated November 11, 2021. In order to review the claim for psychotraumatic entitlement, a request was made for clinical records from the worker’s family doctor for the five years prior to and since the workplace accident.

The Case Manager decision of March 29, 2022, denied entitlement for a psychotraumatic disability, because the Case Manager determined none of the entitlement conditions were met.

AUTHORITY

Operational Policy Manual Published

15-04-02 Psychotraumatic Disability September 7, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find there is no entitlement for a psychotraumatic disability. My reasons are explained below.

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.

Psychotraumatic disability is considered to be a temporary condition. Only in exceptional circumstances is this type of disability accepted as a permanent condition.

The worker representative submitted an Appeal Readiness Form dated February 10, 2023, and also presented arguments at the hearing. It is their position that the worker meets the criteria for a psychotraumatic disability under the second entitlement criteria, as an indirect result of the physical injury

and under the third entitlement criteria, resulting from an extended disablement. They relied on a psychological assessment report dated November 11, 2021, which diagnosed the worker with Major Depressive Disorder, as well as a report from the family doctor dated April 28, 2023, which recommended treatment for depression and anxiety. It is their position that the Case Manager applied the operational policy incorrectly and that it is more likely than not that the worker’s psychological condition is a result of the injury or the extended disablement.

The employer did not participate in the appeal and did not provide a Respondent Form or submissions.

The worker testified at the hearing. The worker testified that they developed an emotional reaction to the injury, resulting in severe depression and anxiety. It was the worker’s evidence that depression developed around the time of the injury, as the worker was experiencing stress, depression, anxiety and uncertainty about the future. The worker testified that the depression and anxiety have been constant since the injury.

The worker testified that the psychological symptoms impact their social and family life. The worker stated that they visit family less often because it is difficult to go out due to mobility issues. The worker said they avoid social gatherings because of limited mobility and stress. The worker also is not motivated to go out and feels embarrassed by the injury. The worker testified it is also hard to be motivated to get up in the morning. The worker stated that before the workplace injury, they were very active and social. The worker denied having psychological issues before the workplace injury.

Regarding current symptoms, the worker testified that they experience stress, frustration, anger, irritability and tears but no feelings of self-harm. The worker said they experience crying episodes almost every day and the episodes can last for a few minutes to a few hours. The worker acknowledged having some increased stress because of cardiac problems. The worker testified that they are not working. They have applied for Canada Pension Plan (CPP) disability benefits but there is no decision yet. A CPP disability application dated February 23, 2023, shows that the worker applied for CPP disability based on chronic bilateral Achilles tendinitis, recurrent cellulitis in the feet, depression and anxiety.

Regarding treatment, the worker testified that they saw a social worker, approximately seven times. The last appointment was in April 2022. The worker is waiting for a new block of appointments, because OHIP coverage is limited to seven appointments per year. The worker said the sessions with the social worker help with stress management. When asked about the psychological treatment sessions approved in December 2018, the worker said they did not attend because they did not know they had been approved for treatment sessions. The worker testified that they did not receive treatment from the psychologist who provided an assessment report in November 2021.

Although the worker testified that depression and anxiety have been consistently present since shortly after the injury, I find the worker’s position is not supported by other evidence. There were indications the worker was experiencing some emotional stress in December 2018, based on a Case Manager’s discussion with the worker’s spouse on December 7, 2018, documented in claim file memo X. The worker’s spouse identified stressors related to the injury and to some health issues involving one of their children. The worker’s spouse was told that the worker could be assessed by a psychiatrist or psychologist and temporary psychological treatment would be approved, once there was a psychological assessment and diagnosis. This was confirmed in claim file memo Y, dated December 13, 2018.

The worker testified that they did not pursue treatment because they did not know it was approved, but information in the claim file suggests the worker’s spouse was aware that a psychological assessment had been approved in December 2018. In a conversation with a Case Manager on July 31, 2019, documented in claim file memo Z, the worker’s spouse was asked if they had pursued the

psychological assessment. The worker’s spouse indicated that in the end, it was not necessary. The worker’s main issue was with the delay in starting treatment and with their child’s illness.

The medical evidence did not establish the presence of a psychological diagnosis in December 2018. A report from the Lower Extremity Specialty Program dated December 21, 2018, indicated the worker did not present with signs of depression or low mood that would necessitate a psychological evaluation. The report also noted the worker declined the offer to see a clinical psychologist. The worker reported that the high scores on psychological screening were based on frustrations with delayed treatment and poor management of the case by the community surgeon. The report indicated there was evidence of fear avoidant behaviour, pain catastrophizing, high perceived disability, social withdrawal, high psychological distress, decreased participation in normal activities of daily living and poor sleep, but there was no psychological diagnosis. Participation in an Enhanced Functional Treatment Program was recommended. A psychovocational assessment report dated May 9, 2019, also showed minimal evidence of anxiety and depression, confirming the findings from the Specialty Program that the worker did not present with significant signs of depression or low mood.

The first psychological diagnosis was provided in the psychological assessment of November 11, 2021. The report was prepared based on a referral from the worker representative. The report indicated the worker was struggling with physical pain and had not returned to pre-injury employment. The assessment was conducted over the telephone and consisted of a clinical diagnostic interview and psychometric testing. The worker reported participating in return to work activities with the WSIB, believing they would be sponsored to participate in a college level social work program. The worker reported that it was a huge blow to learn they would not be sponsored in the retraining program and was instead expected to return to the pre-injury work. The worker reported various concerns about how they were treated by the WSIB, indicating they were frustrated and stressed. The report noted the worker had recently been diagnosed with atrial fibrillation and had to start medication for that condition, as well as for gastroesophageal reflux disease (GERD). The worker denied any pre-injury health issues.

The psychological assessment indicated that the worker’s complaints included physical pain in both feet, worry about the injury worsening and finding employment, financial struggles after LOE benefits ended in October 2020, rumination, excessive stress, anxiety, frustration, angry outbursts, a sense of helplessness and hopelessness, difficulty participating in social and recreational activities due to pain, grief associated with loss of career, sense of identity and personal expectations as a father, difficulties with household chores and nightmares associated with ongoing worries and anxieties.

The psychological report diagnosed the worker with Somatic Symptom Disorder with Predominant Pain and Major Depressive Disorder. Comments in the report suggested that Somatic Symptom Disorder with Predominant Pain was the worker’s main functional barrier. The psychological report recommended treatment, but also indicated that treatment likely would not impact the worker’s ability to return to work. The report noted that the worker’s physical symptoms were the barrier to return to work, indicating that the worker could not return to work until physical symptoms either resolved or decreased significantly.

Clinical records from the worker’s family doctor show that the worker was seen frequently post-injury for multiple chronic complaints, including headaches, shoulder pain, back pain, neck pain, throat pain, chest tightness, fatigue, ear pain, abdominal pain, recurrent cellulitis, atrial fibrillation, possible sleep apnea and sporadic numbness and tingling that comes and goes in different parts of the body. On June 18, 2021, the worker noted to the doctor that they had financial concerns and wanted to return to work, but no specific psychological symptoms were discussed until July 26, 2021, when the worker continued to report being frustrated because of financial stress. The worker reported that mentally, they were having a hard time being at home. The worker reported feeling upset about a recent flare up of the right Achilles

problem, impaired quality of life and not being able to contribute financially to the family. The worker was referred to a social worker for counselling.

The worker confirmed in testimony that they attended sessions with a social worker. However, there was still limited evidence of depressive symptoms in the social work records. A mental health questionnaire dated July 27, 2021, contained in the chart notes, showed minimal symptoms of mood problems with some moderate anxiety. The initial social work assessment on July 30, 2021, indicated the worker was being seen due to stress related to dealing with the WSIB, financial constraints and problems looking for new work. The worker presented as pleasant, friendly and engaged, with the main stress resulting from financial constraints. At the next social work session on September 8, 2021, the worker discussed some concerns about other health issues and indicated they did not want to think about types of jobs to pursue until there was more information about recent cardiac issues. The worker continued to report stress due to financial constraints. The next social work sessions on September 29, 2021 and December 15, 2021, focused primarily on the uncertainty related to the worker’s unexpected health issues, including a recent surgery for a non-work-related condition.

The worker representative argued that the worker developed a psychotraumatic condition as an indirect result of a physical injury, due to an emotional reaction to the accident or injury, severe physical disability/impairment, or a reaction to the treatment process. I have considered their position but I find the evidence does not support that the worker developed a psychotraumatic condition as an indirect result of the physical injury. If the worker had developed a psychotraumatic response to the physical injury, I would expect to see evidence of it sooner after the initial accident and injury. Although the worker reported some emotional stress in December 2018, it seemed to be related to the worker feeling there were delays in the treatment process. The worker did not identify a need for psychological assessment or treatment and no psychological diagnosis was identified at that time. I would consider the stress the worker was experiencing in December 2018 to be consistent with typical stressors associated with recovering from a physical injury, and not evidence of an emerging psychotraumatic impairment.

Although the worker has an extended disablement for the right foot and ankle impairment, I find a weighing of the available evidence does not establish the worker developed a psychotraumatic disability as a result of the extended disablement. The medical records indicate the worker has challenges related to the compensable injury, but they also have a number of other significant medical issues that contribute to worker’s overall health situation. The worker consistently reported financial constraints as the primary stressor, but I am not persuaded that the worker’s financial concerns are non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work injury. The worker has experienced financial problems because they have not returned to work, despite the fact that the pre- injury duties were determined to be suitable for the worker’s permanent impairment. The worker disagreed with that determination, but that is not an issue before me in this appeal. The worker confirmed in testimony that they have not worked since LOE benefits were terminated and the worker has not tried to find work. There are various references in the clinical records that the worker had trouble deciding on what kind of work to look for and that other health conditions have contributed to the worker’s decision to remain off work. The evidence also suggests that the worker has experienced stress and frustration because they disagree with decisions made by the WSIB, particularly around the closure of return to work services and the end of LOE benefits. The worker’s disagreement with WSIB decisions would not be considered to be a psychotraumatic reaction to the extended disablement. Noting all of these factors, I am not persuaded that the worker developed Major Depressive Disorder as a result of the extended disablement in this claim.

A report from the worker’s family doctor dated February 18, 2022, indicated the worker’s injuries had progressed to the point of chronic pain syndrome. In a chart note dated May 3, 2022, the doctor noted

the worker had complex multisystem functional disorders with no clear explanations and encouraged the worker to continue to make lifestyle changes. The psychological report of November 11, 2021, identified the first diagnosis as Somatic Symptom Disorder with Predominant Pain. A diagnosis of Somatic Symptom Disorder with Predominant Pain needs to be addressed under the operational policy on Chronic Pain Disability (CPD). A decision on entitlement for CPD has not yet been determined at the operating level and is not an issue before me in this appeal.

In summary, I find there is no entitlement for a psychotraumatic disability because the entitlement criteria have not been met.

CONCLUSION

I conclude there is no entitlement for a psychotraumatic disability. The worker’s objection is denied.

DATED June 9, 2023

Helen Shaw

Appeals Resolution Officer Appeals Services Division