DECISION NUMBER: 20230101
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: OUT OF BUSINESS
HEARING: TELEPHONIC ORAL HEARING – JUNE 15, 2023
HEARD by: C. DA CUNHA, APPEALS RESOLUTION OFFICER
DATED: NONE
ISSUES
The worker objects to the Case Managers’ (CM) July 15, 2022, February 17, 2023, and March 1, 2023 decisions.
The worker seeks:
A finding that, on the date of injury (DOI), he was an apprentice Sheet Metal Worker (SMW), as defined under operational policy 12-04-13, Apprentices, with a consequent adjustment to the pre-accident earnings basis to reflect the earnings of a Journeyperson;
Secondary entitlement under operational policy 15-04-02, Psychotraumatic Disability (PTD), to an adjustment disorder, a post-traumatic stress disorder (PTSD), a major depressive disorder (MDD), and a generalized anxiety disorder (GAD); and,
Ongoing entitlement from March 17, 2023, including to loss of earnings (LOE) benefits, funding for mental health treatment, and return-to-work (RTW) services.
BACKGROUND
Under a prior claim, the worker injured his right ring finger on May 31, 2014, arising from a work-related accident with the same employer. He underwent three surgical procedures for that injury, and the WSIB determined that he reached maximum medical recovery (MMR) on May 12, 2015, with a permanent impairment (PI) evident. He subsequently received a 2% non-economic loss (NEL) award in recognition of that PI, for a right ring finger flexor digitorum profundus (FDP) tendon rupture, with surgery.
Under this claim, on May 29, 2015, the worker re-injured the right ring finger while lifting a heavy box at work. He had worked with the employer as a SMW for almost two years at the time.
The WSIB granted initial entitlement under this claim, with the worker undergoing further surgery. The WSIB determined that he reached MMR on February 1, 2016, with a permanent significant worsening in the right index finger PI. The worker subsequently received another 2% NEL award in recognition of the permanently worsened right ring finger PI (i.e. FDP tendon rupture, with surgery). Therefore, the worker’s total NEL award for the right ring finger PI currently stands at the 4% NEL award level.
The worker participated in the work transition (WT) process, now referred to as the RTW process, under this claim. On December 7, 2015, the WT Specialist determined that the employer had permanently accommodated the worker with a suitable position as a Health & Safety Coordinator (HSC), at no wage loss.
On February 7, 2017, the employer terminated the worker. However, neither workplace party notified the WSIB of this material change in circumstances.
On July 17, 2018, the worker secured a position with a new employer as a SMW, his pre-accident job. The worker then advised the WSIB on September 9, 2020 that his right hand PI was worse.
On December 9, 2020, the worker sustained a work-related FDP tendon rupture of the left ring finger with the new employer. The WSIB registered a new claim for that injury.
Under the new left hand claim, the WSIB arranged for an assessment at the WSIB Upper Extremity Specialty Program (UESP). Dr. R.A. Silverman, Psychologist, assessed the worker at the UESP on March 11, 2021. Upon doing so, Dr. Silverman diagnosed an adjustment disorder.
On March 15, 2021, the worker stopped working. He had been receiving partial LOE benefits under the new left hand claim at that time.
Under this claim, on March 29, 2021, Dr. E. Jewer, Orthopedic Surgeon at the UESP, assessed the worker. Dr. Jewer opined that the 2015 fight ring finger FDP reconstruction surgery had failed.
On May 6, 2021, the CM determined that the worker’s right ring finger PI had significant deteriorated following the December 9, 2020 left hand injury, because of an overreliance on the right hand due to the new injury to the left hand. Consequently, the CM granted entitlement to full LOE benefits under this claim, effective March 15, 2021, because the new, current employer was not able to accommodate him with suitable work.
The CM reactivated the RTW process on May 15, 2021, referring the worker to the RTW Specialist (RTWS).
The CM deferred the final LOE benefit review on June 1, 2021, finding that the worker was participating in health care measures for the work-related right ring finger PI. The worker underwent further surgeries to the right ring finger on June 24, 2021 and October 7, 2021, and continued to receive full LOE benefits while recovering.
Under the December 9, 2020 left hand claim, the WSIB determined that the worker reached MMR for that injury on July 9, 2021, with no PI evident.
On December 7, 2021, Dr. S. Van Blyderveen, Psychologist, assessed the worker under the WSIB Community Mental Health Program (CMHP). Upon assessing the worker, Dr. Van Blyderveen diagnosed:
A PTSD;
A MDD; and,
A GAD.
Dr. Van Blyderveen stated that the MDD and GAD appeared secondary to the PTSD, and should be reassessed after treatment for the PTSD. Thus, Dr. Van Blyderveen opined, the depressed mood and anxiety might resolve once the PTSD symptoms had been addressed.
On January 27, 2022, the WSIB sponsored the worker in computer and academic upgrading courses as part of the worker’s RTW plan. However, the worker did not participate in the RTW plan, citing his physical and mental health difficulties as barriers to him doing so.
The UESP discharged the worker from their Functional Treatment Program on February 24, 2022. The CM subsequently determined that the date of discharge (i.e. February 24, 2022) was the permanent worsening date (PWD) following the March 15, 2021 recurrence, and referred the worker for a NEL award redetermination.
The worker representative then wrote to the WSIB on May 30, 2022, requesting a review of the pre-accident earnings basis under this claim. The worker representative argued that, on the DOI, the worker was an apprentice, and his pre-accident earnings basis should, therefore, be based on the earnings of a Journeyperson.
On July 15, 2022, the CM granted secondary entitlement to an adjustment disorder, MDD, and GAD under operational policy 15-04-02, PTD. The CM denied secondary entitlement to a PTSD, finding that the diagnosis was not compatible with the accident history.
The NEL Clinical Specialist subsequently conducted the NEL redetermination evaluation on December 5, 2022. Upon doing so, the NEL Clinical Specialist rated the right ring finger PI at the 3% whole person impairment level. In other words, the NEL evaluation found that the right ring finger PI had improved, since it was previously rated at the 4% level.
Dr. M.E. Harris, Psychologist, then submitted a CMHP progress report on January 30, 2023, covering the treatment period from December 7, 2022 to January 25, 2023. Dr. Harris maintained the diagnoses of PTSD, MDD, and GAD, and stated that the worker could not work in any workplace setting or situation because of the PTSD. Dr. Harris explained that this was because he had not made sufficient gains in cognitive ability or symptom management to allow for a RTW at that time.
On February 17, 2023, the CM determined that the worker’s entitlement to LOE benefits would cease on March 17, 2023, for the following reasons:
The NEL redetermination evaluation of December 5, 2022 confirmed that the right ring finger had returned to its pre-March 15, 2021 level of impairment;
The pre-accident employer permanently accommodated him with a job within his accepted abilities;
He subsequently switched employers. Therefore, it was up to him to approach his new employer to determine if it could accommodate his right ring finger PI under The Ontario Human Rights Code; and,
The mental health documentation showed that he remained off work because of the non-work-related PTSD.
Consequently, on February 21, 2023, the RTWS closed the worker’s RTW plan.
On March 1, 2023, the CM considered and addressed the worker representative’s May 30, 2022 submission. After doing so, the CM found that, on the DOI, the worker was not an apprentice, denying the request to base the pre-accident earning basis on the earnings of a Journeyman.
The worker representative then contacted the WSIB on March 27, 2023, requesting a decision regarding the accident employer’s potential breach of its re-employment obligations to the worker, noting that it terminated his employment on February 6, 2017, less than two years after the DOI.
Another CM considered the re-employment obligation issue. On June 12, 2023, the CM found that the accident employer under this claim had breached its re-employment and co-operation obligations to the worker. Consequently, the CM granted entitlement to full LOE benefits from February 6, 2017 to May 29, 2017, the second anniversary of the DOI in this claim. The CM left the nature and duration of entitlement to further benefits flowing from this decision to the discretion of another CM. As of the date of this Appeals Resolution Officer decision, the Operating Area has not yet ruled on the issue of entitlement to further benefits flowing from the June 12, 2023 decision.
TESTIMONY
The worker provided the following relevant sworn testimony at the oral hearing:
He completed his sheet metal trades education at X College in 2011. Prior to the employer hiring him, he worked for other employers as an apprentice SMW. At those employers, he accumulated the 9,000 hours he needed as part of his apprenticeship program. Once he completed his schooling, he twice wrote the Certificate of Qualification (C of Q) Red Seal exam to become a Journeyperson, but failed both times. He then went to work for the employer.
The employer hired him as an apprentice Sheet Metal Installer. He did not accumulate any more hours as part of his apprenticeship program because he had already accumulated all the hours he needed (i.e. 9,000 hours). He had also completed all the necessary schooling. The only thing that was missing was passing the exam. The employer hired him at $25 per hour, on the understanding that he would go up to a minimum of $30 per hour once he passed his exam.
He wrote the test on October 28, 2015 and failed it again. He attributes this failure to the pressure the employer was putting him under to pass and the right hand injuries and surgeries he had sustained. He could not even properly grip a pencil at that time.
From November 2015 to February 2017, he worked as a HSC for the employer. He had never worked in an office or administrative setting and, initially, he enjoyed it and was learning. He even completed a health and safety course. However, once the “WSIB left the picture”, things changed. He essentially became an errand runner for the Health and Safety Manager. The employer did not give him any real responsibilities and did not value his suggestions and points of view. They used him to terminate six different people during these 15 months. In February 2017, they fired him with no notice or reason provided. The whole experience left a bad taste in his mouth. He did not have any significant new skills related to the position to allow him to secure a new job as a HSC with a new employer after the employer terminated him.
In July 2018, he returned to work as a SMW with a new employer. He chose this employer because the work involved the handling of sheet metal in front of him instead of overhead. He thought that this type of sheet metal work would be more suitable for him noting his right hand PI. However, over time, the employer started having him doing more overhead work, which eventually led to his December 2020 left hand injury, and then the worsening in his right hand because he could not use the left hand.
He returned to modified duties with his new employer following the left hand injury. However, after about three months, the right hand was so bad that he had to stop working.
His mental health really started to deteriorate after the June 2021 surgery to the right hand. The surgeon performed the procedure to correct the mess that the previous surgeon had created. Prior to June 2021, his right ring finger was permanently contracted against his palm. In June 2021, the surgeon operated to release the contracture and straighten the finger. The surgeon removed the bandages from his hand in a follow-up consultation after the surgery. When he looked down and saw that his right hand had been split from the tip of the finger to his palm he immediately had a mental health breakdown that necessitated the Nurses having to physically hold and calm him down. He had no mental health issues prior to the left hand injury in December 2020 and had never sought or taken psychological treatment or medications. The after effects of the June 2021 surgery worsened things even more, especially once he realized he had a “dead finger” now.
His last psychological consultation with C. Penny was on May 31, 2023. He has another appointment next week, which he will pay for out of his pocket. However, he cannot afford this and, if the WSIB does not continue funding his treatment, he will not be able to continue. He would like to continue to consult C. Penny after next week, but he cannot afford to pay for the sessions out of pocket. An anti-anxiety medication is the only psychological medication he currently takes.
He is willing to participate in RTW services with the WSIB. However, he is not sure that he is ready and able to do so mentally. He suffers from nightmares and does not sleep well. C. Penny also states that he is not ready to RTW at this time.
Issue #1: Apprentice Status
Date of the CM’s Decision: March 1, 2023.
The Worker’s Position: In his closing arguments at the oral hearing, the worker representative essentially put forth that the evidence on record shows that the employer hired the worker as an apprentice SMW. On the date of hire, the worker was a Journeyperson candidate because he was working towards obtaining his certification. All he had to do was pass the C of Q exam.
The Form 7 shows that the witness to the worker’s accident was an apprentice, confirming that the employer hired apprentices. Furthermore, in an April 21, 2015 letter, the employer identifies the worker as a Sheet Metal Apprentice.
The evidence on record shows that the employer hired the worker as an apprentice SMW. Therefore, the WSIB should recognize him as such and adjust his pre-accident earnings basis to that of a Journeyperson.
AUTHORITY
Operational Policy Manual
Published
12-04-13: Apprentices
January 3, 2023
ANALYSIS
I have carefully considered all of the available information and relevant operational policy in reaching this decision. Having done so, I find that:
- On the DOI, the worker was not an apprentice, as defined under operational policy 12-04-13, Apprentices.
Operational policy 12-04-13, Apprentices, defines an apprentice as a person who is formally registered in a Ministry apprenticeship program under a signed contract of apprenticeship ("a registered training agreement") in accordance with the Building Opportunities in the Skilled Trades Act, and is receiving training and instruction in a trade, through or from an employer, that is required as part of the program.
The employer provided the worker with an Offer of Employment on June 21, 2013. In that agreement, signed by the worker on June 28, 2013, the employer specifically confirmed that the offer was for a position of Sheet Metal Installer. There is no indication in the document that the worker was being hired as an apprentice.
In the June 3, 2015 Employer’s Report of Injury/Disease (Form 7), the employer confirmed that they hired the worker as a SMW on July 2, 2013. They identified the worker as a non-unionized, permanent, full time SMW, earning $26.24 per hour, 44 hours per week. While the employer likely hired apprentices, there is no indication on the Form 7 that the worker himself was an apprentice.
In his June 9, 2015 Worker’s Report of Injury/Disease (Form 6), the worker identified himself as a SMW, earning $26.24 per hour, 44 hours per week. There is also no indication in this document that the worker was an apprentice on the DOI.
In a June 11, 2015 statement to the CM, the worker stated that, prior to the DOI in this claim, the employer had “put him in charge” of a second year apprentice. I would infer from this that the worker would not also have been an apprentice because if he was, he would have been under supervision himself, receiving training and instruction as part of his program, and not supervising another person.
On September 4, 2015, the employer wrote to the worker, informing him that, according to the Ontario Ministry of Training, Colleges, and Universities, he should hold the status of Journeyperson Candidate. However, he had not yet passed the C of Q exam. In order to take the C of Q exam, he had to be a member of the College of Trades, which had confirmed that he was not a registered member.
The worker then advised the CM on September 15, 2015 that he was not “legally” an apprentice. He had attended X College, completing his schooling in 2011. However, he twice failed his final test and, consequently, did not become a Journeyperson. He went to work despite a lack of Journeyperson status. While working with the employer he did not accumulate any hours or attend any courses as part of an apprenticeship program. He stated that, if he was an apprentice, he could register with the College. However, he was working, but not gathering hours and was not registered with the Ministry as an apprentice. As he had finished all of his hours and schooling, he was not an apprentice and only had to take the test, which was scheduled for October 28, 2015. Unfortunately, he did not pass. The worker corroborated all this during his sworn testimony.
The CM then called the College of Trades on September 16, 2015. The staff member confirmed that, in order to work in the sheet metal trade, the worker needed to have a C of Q. Having failed the test in 2011, the worker would have been able to work as a Journeyperson for up to one year (i.e. until 2012). Therefore, the worker’s Journeyperson candidate status would have expired before the employer hired him. The only way for the worker to be able to work with in the sheet metal trade was to pass the C of Q exam, certifying him as a Journeyperson. This information leads me to infer that, when the employer hired the worker on July 2, 2013, he was not formally registered in a Ministry apprenticeship program because his Journeyperson candidate status expired one year earlier, in 2012. Noting that the worker’s Journeyperson candidate status had expired in 2012 and he had not passed the C of Q exam, I do not know how or why the employer hired a non-Journeyperson or Journeyperson candidate to work as a SMW in 2013. However, that it did so is not determinative in resolving the issue.
While I acknowledge that the employer called the worker a “Sheet Metal Apprentice” in its April 21, 2015 correspondence, the evidence on record does not show that, on the DOI, the worker was formally registered in a Ministry apprenticeship program under a signed contract of apprenticeship and was receiving training and instruction required as part of that program through the employer. Therefore, I find that the worker was not an apprentice on the DOI, as defined under operational policy 12-04-13, Apprentices. Consequently, on this basis only, an adjustment to the pre-accident earnings basis is not in order.
Issue #2: PTD
Date of the CMs’ Decisions: July 15 2022 and February 17, 2023.
The Worker’s Position: In his closing at the oral hearing, the worker representative argued that secondary entitlement to an adjustment disorder, a PTSD, a MDD, and a GAD under the PTD policy is in order because:
The worker had no pre-existing mental health issues prior to the most recent right hand recurrence and subsequent surgeries;
The worker’s mental health deterioration is compatible with an emotional reaction to the right hand PI and resulting multiple surgeries;
All the mental health professionals that have treated the worker confirm that these diagnoses were caused by the work-related right hand PI and surgeries; and,
There is no psychological opinion on record from a mental health professional that contradicts the opinions of the worker’s health care providers.
AUTHORITY
Operational Policy Manual
Published
11-01-05: Determining PI 15-04-02: PTD
November 3, 2014 September 7, 2018
ANALYSIS
I have carefully considered all of the available information and relevant operational policies in reaching this decision. Having done so, I find that:
Secondary entitlement to an adjustment disorder, a PTSD, a MDD, and a GAD under the PTD policy is in order; and,
The worker reached MMR for the adjustment disorder on December 7, 2021, with no PI evident;
The worker has not yet reached MMR for the PTSD, MDD, and GAD;
Entitlement to funding for ongoing mental health treatment is in order. It is left to the discretion of the Operating Area to determine which mental health care provider the WSIB will fund for this treatment; and,
The Operating Area is to monitor the worker’s progress and determine when he has reached MMR, whether a PI is evident at that time, and if a referral for a NEL award determination is in order.
Operational policy 15-04-02, Psychotraumatic Disability, states, in part:
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.
It adds that entitlement to a PTD 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.
Dr. Silverman diagnosed the worker with an adjustment disorder on March 11, 2021. This falls within the five-year time limit cited in the PTD policy noting that the CM granted entitlement to a recurrence (i.e. a new injury) arising from overuse of the right hand subsequent to the December 9, 2020 work-related left hand injury.
Upon assessment the worker, Dr. Silverman provided the following clinical impression:
Based upon an integration of information from the clinical interview, documentation review, behavioral observations, and psychometric test findings, the evidence from the current assessment indicates that Mr. Haase has developed clinically significant psychological symptomatology and adjustment difficulties in relation to his physical pain/injuries and the adverse impact on his overall functioning, especially at work, where he has been struggling to perform some of the physically demanding tasks involving repetitive usage of his right hand. As a diligent and conscientious worker, Mr. Haase has also been conflicted about his compromised work performance, while also experiencing some resentment over feeling pressured to perform certain tasks that could lead to re-injury or an exacerbation of his injuries. As a highly motivated individual with a reported history of Attention Deficit Hyperactivity Disorder (ADHD), Mr. Haase has also been struggling to cope with his physically-based limitations and their inimical impact on his participation in his usual activities, which has become an additional complicating factor with respect to his psychological recovery. His psychological status has also been adversely impacted by the persistence of his perceived lack of progress to date; incessant worrisome thoughts about his prognosis and future functioning; financial stressors; sleep maintenance difficulties; decreased energy levels; and diminished sense of efficacy and control.
Dr. Silverman diagnosed him with a work-related adjustment disorder and confirmed that the assessment did not result in any relevant non-occupational diagnosis. Dr. Silverman stated that, from a psychological perspective, the worker was capable of participating in a suitable RTW program.
The findings in Dr. Silverman’s lead me to find that the third criterion under the PTD policy has been met in this case. Therefore, secondary entitlement to an adjustment disorder is confirmed.
As previously noted, the WSIB determined that the worker fully recovered from the December 9, 2020 left hand injury on July 9, 2021. This is not an issue in dispute before me and I have no jurisdiction to consider it. Therefore, based on the entitlement landscape of this case file, from July 9, 2021, entitlement in this case file was limited to an ongoing deterioration in the right ring finger PI and an adjustment disorder.
The worker underwent further surgeries to the right ring finger on June 24, 2021 and October 7, 2021, his fifth and sixth, respectively.
On December 7, 2021, Dr. Van Blyderveen conducted a mental health assessment of the worker.
Dr. Van Blyderveen noted that he presented in an engaged and forthright manner. He became tearful and distressed when discussing the workplace incidents and his symptoms, requiring that the interview be paused a few times to allow him to collect himself emotionally. Dr. Van Blyderveen considered the assessment results to be valid.
Dr. Van Blyderveen noted that the worker described the May 31, 2014 and May 29, 2015 right ring finger injuries. He spoke about undergoing several surgeries following the injuries, which did not result in the full use of his right hand. He recently had another injury (i.e. the recurrence), because of the limited use of his left hand.
Dr. Van Blyderveen noted that the worker endorsed symptoms of:
A PTSD, including intrusive symptoms (memories and nightmares, associated with intense and prolonged distress), avoidance of trauma related stimuli (avoiding thoughts related to the incident), negative alterations in cognitions and mood (negative beliefs about himself and the medical system, depressed mood, anhedonia), and alterations in arousal/reactivity (problems with concentration, sleep disturbance, and irritable behaviour);
A MDD, including depressed mood, increased tearfulness, diminished pleasure in previously enjoyed activities, decreased appetite, difficulty sleeping, psychomotor agitation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, and diminished ability to concentrate; and,
A GAD, including excessive worry that is difficult to control, feeling keyed up and on edge, easily fatigued, difficulty concentrating, irritability, muscle tension, and sleep disturbance.
Dr. Van Blyderveen diagnosed the worker with a PTSD. She also diagnosed the worker with a MDD and a GAD. However, she stated that these latter diagnoses appeared secondary to the PTSD and the worker’s current circumstances. She opined, therefore, that the depressed mood and anxiety might resolve once the PTSD symptoms were addressed.
The Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition, states that the criteria necessary to diagnose a PTSD include, in part:
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
Directly experiencing the traumatic event(s).
Witnessing, in person, the event(s) as it occurred to others.
Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
As previously noted, on December 7, 2021, the compensable entitlement landscape was limited to a temporary significant worsening in the right ring finger PI and an adjustment disorder, diagnosed on March 11, 2021, when the worker also had a left hand injury, which prevented him from performing his pre-December 9, 2020 regular duties with a new employer. Furthermore, the worker had undergone two more surgeries to the right ring finger on June 24, 2021 and October 7, 2021. Therefore, on December 7, 2021, the worker had just recently undergone the sixth surgery to his right, dominant hand.
Furthermore, the worker testified under oath that, upon seeing the results of the June 24, 2021 surgery, he suffered an immediate mental health breakdown in the surgeon’s office, necessitating the intervention of multiple Nurses. His mental health significantly deteriorated after this incident.
The facts and circumstances of the case file lead me to find that the six surgeries resulting from the work-related right hand injuries reasonably constitute direct exposure to actual serious injury because they have significantly mitigated the worker’s ability to use his dominant hand. This finding is corroborated by the December 9, 2021 opinion of Dr. Van Blyderveen and the subsequent opinions of Dr. Harris and C. Penny, who provided mental health treatment at the CMHP after Dr. Van Blyderveen’s initial assessment. Noting the area of expertise of these mental health providers, I place a significant amount of evidentiary weight on their opinions. There is no contrary expert opinion of greater evidentiary weight on record. Therefore, I find that the diagnosis of PTSD is compatible with the work-related right hand injury and the resulting treatment process (i.e. six surgeries). Consequently, secondary entitlement to the same under the PTD policy is in order.
Furthermore, as Dr. Van Blyderveen confirmed that the MDD and GAD diagnoses appeared secondary to the PTSD, and might resolve once the PTSD symptoms were addressed, secondary entitlement to these conditions, which arose from the PTSD, is also in order, under the PTD policy.
Operational policy 11-01-05, Determining PI, prescribes that a worker reaches MMR when 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. A PI means that an impairment continues to exist after the worker reaches MMR.
The mental health progress reports from Dr. Harris and C. Penny subsequent to the initial December 7, 2021 assessment, all identify the non-compensable PTSD, and secondary MDD and GAD, as the diagnoses for which the worker received ongoing mental health treatment. As of December 7, 2021, none of the reports identify an adjustment disorder as a mental health condition. Therefore, I find that, in relation to the work-related adjustment disorder, the worker reached MMR, with no PI evident, on December 7, 2021.
On February 17, 2023, concurrently with the decision of that date, the CM authored a letter to Dr. Harris and C. Penny stating that the WSIB would fund ongoing mental health treatment to June 1, 2023, but only for the diagnoses of adjustment disorder, MDD, and GAD, because the PTSD was not work-related. In response to this adjudicative determination of the WSIB, Dr. Harris and C. Penny switched their treatment focus to the MDD and GAD, not addressing the PTSD.
Dr. Harris and C. Penny treated the worker up to, and including, May 31, 2023. On June 14, 2023, they submitted a CMHP Progress Report. In that document, they stated that the worker remained engaged with this mental health treatment. However, his emotional dysregulation remained high with thoughts of RTW because of unprocessed trauma. They maintained that the worker had not made sufficient gains in cognitive ability or symptom management to RTW, and requested funding for three more blocks of treatment over the next six months.
The mental health evidence on record leads me to find that the worker has not yet reached MMR for the PTSD, MDD, and GAD. Therefore, I find that entitlement to funding for ongoing mental health treatment is in order.
As the worker does not appear to have made progress over more than 18 months at the Y Counselling Centre, I leave it to the discretion of the Operating Area to determine which mental health care provider the WSIB will fund for this treatment.
The Operating Area is to monitor the worker’s progress and determine when he has reached MMR, whether a PI is evident at that time, and if a referral for a NEL award determination is in order.
Issue #3: Entitlement from March 17, 2023
Date of the CM’s Decision: February 27, 2023.
The Worker’s Position: In his closing at the oral hearing, the worker representative argued that, based on the mental health reports on record, the worker is entitled to LOE benefits and funding for ongoing mental health treatment from March 17, 2023. Once his mental health condition allows it, he is also entitled to RTW services to help him re-enter the labour market.
AUTHORITY
Operational Policy Manual
Published
18-03-06: Final LOE Benefit Review
April 9, 2021
ANALYSIS
I have carefully considered all of the available information and relevant operational policy in reaching this decision. Having done so, I find that:
Entitlement to full LOE benefits from March 17, 2023 is in order;
The Operating Area is to reactivate the RTW plan process once it has determined that the worker is able to participate; and,
The Operating Area is to conduct the final LOE benefit by the appropriate time as per operational policy 18-03-06 Final LOE Benefit Review (i.e. within 24 months of the NEL award processing date, if a NEL award determination is granted for the PTD, or within 30 days of the completion of the RTW plan).
Operational policy 18-03-06, Final LOE Benefit Review, states, in part:
The WSIB may review the LOE benefit after the 72nd month final review if the worker suffers a significant deterioration in their work-related condition (whether or not the work-related condition resulted in a PI). When a worker sustains a secondary condition post 72 months that is causally related to the work-related condition, this may also be considered a significant deterioration of the work-related condition for which LOE benefits may be reviewed post 72 months.
As I have granted secondary entitlement to a PTSD, a MDD, and a GAD effective December 7, 2021, which is more than 72 months after the DOI, these conditions constitute secondary conditions post 72 months. Therefore, they are significant deteriorations of the work-related condition, for which LOE benefits may be reviewed after the 72nd month, as defined and intended under operational policy 18-03-06, Final LOE Benefit Review. The policy adds, in part:
Significant deteriorations post 72 months
Although the LOE benefit may be paid or recalculated at the outset when the worker has suffered a significant deterioration, the WSIB must conduct a further review of the "locked in" benefit, and if warranted, recalculate the benefit before that review opportunity ceases. This review should normally take place:
When a significant temporary deterioration ends;
Whenever the WSIB determines that a NEL determination or redetermination of the worker’s PI is not required; or,
Within 24 months of the NEL processing date if the NEL determination or redetermination confirms a significant deterioration of the permanent impairment resulting in a NEL or an increased NEL benefit, based on the facts of the case.
The 24-month review period can be extended if the WSIB awards an initial NEL benefit or conducts a redetermination resulting in a NEL increase, and the worker is co-operating in a RTW plan (with training) that is not completed by the end of the 24 month period. The WSIB has 30 days from the completion of the RTW plan to conduct a review of the LOE benefit.
As previously noted, prior to March 15, 2021, the worker had not received LOE benefits in this claim since 2015. As a result of the recurrence flowing from the December 9, 2020 left hand injury, the WSIB reinstated full LOE benefits in the claim, effective March 15, 2021. The CM then deferred the final LOE benefit review on June 1, 2021 because, at the time, the worker was co-operating in his health care measures for the right hand.
On December 7, 2021, the worker suffered a significant mental health deterioration post 72 months, diagnosed as a PTSD, a MDD, and a GAD. The CM subsequently determined that, in relation to the significant right ring finger deterioration, the worker reached MMR on February 24, 2022, and referred the case file for a NEL award redetermination.
On December 5, 2022, the NEL Clinical Specialist conducted the NEL redetermination evaluation, and rated the right ring finger PI at the 3% whole person impairment level, an improvement from the previous 4% total NEL award level. These decisions are not issues in dispute before me. Therefore, I have no jurisdiction to consider them.
I have already determined that the worker recovered from the adjustment disorder, diagnosed prior to the final LOE benefit review, on December 7, 2021. However, I also found that the PTSD, MDD, and GAD diagnosed and treated from that date are compensable under this claim, the worker has not yet reached MMR for these conditions, and is entitled to ongoing funding for treatment in relation to the same.
Therefore, the significant deterioration post 72 months (i.e. the PTSD, MDD, and GAD) has not ended.
There is no dispute that the pre-accident and pre-recurrence duties are not suitable and that, beginning November 23, 2015, the employer accommodated the worker as a HSC, at no wage loss. In a November 18, 2015 RTW Plan form, the WT Specialist opined that the position fell within national occupation code (NOC) 2263 and was both suitable and sustainable. However, I note that in the subsequent December 7, 2015 letter to the workplace parties, the WT Specialist did not issue a formal decision, with a time limit, confirming the same.
Furthermore, I note that the worker was to be trained in the position by the employer’s Health and Safety Manager to assist the Manager with health and safety concerns. There is no evidence on record that the WSIB monitored the worker’s progress in this in-house training program, which is a significant administrative deficit noting that the worker’s previous employment history involved him working strictly as a SMW. He did not have any prior office, administrative, or health and safety experience.
I also note that the November 11, 2021 psychovocational assessment identified NOC 2263 as a potential suitable occupation for the worker. However, the assessors opined that the worker would benefit from mathematics upgrading, computer skills training, and required college level training in health and safety in order to complement his related experience. This is six years after the employer accommodated the worker in the HSC position. Therefore, I infer from the assessors’ recommendations that the worker’s 15 months of experience as a HSC for the employer did not provide him with all the skills necessary to perform the job in the general labour market. During his sworn testimony, the worker corroborated this inference.
Of greatest significance, on June 12, 2023, the CM determined that the employer breached its re-employment and co-operation obligations to the worker when it terminated him on February 6, 2017.
These facts and circumstances do not allow me to find that the employer provided the worker with suitable work in December 2015. Furthermore, the evidence leads me to find that HSC, NOC 2263, is not a direct-entry SO for the worker as the evidence shows that he does not possess the education and transferable skills necessary to directly employ himself in this field at this time. Therefore, as the worker has co-operated in his health care measures, funding for ongoing health care treatment has been granted, and the HSC position is not a direct-entry SO for the worker, I find that he is entitled to full LOE benefits from March 17, 2023.
As the worker’s post 72nd month mental health deterioration has not plateaued, the Operating Area is to:
Reactivate the RTW plan process once it has determined that the worker is able to participate; and,
Conduct the final LOE benefit by the appropriate time as per operational policy 18-03-06 Final LOE Benefit Review (i.e. within 24 months of the NEL award processing date, if a NEL award determination is granted for the PTD, or within 30 days of the completion of the RTW plan).
CONCLUSION
I find that:
On the date of injury, the worker was not an apprentice, as defined under operational policy 12-04-13, Apprentices;
Secondary entitlement to an adjustment disorder, a post-traumatic stress disorder, a major depressive disorder, and a generalized anxiety disorder under operational policy 15-04-02, Psychotraumatic Disability, is in order;
The worker reached maximum medical recovery for the adjustment disorder on December 7, 2021, with no permanent impairment evident;
The worker has not yet reached maximum medical recovery for the post-traumatic stress disorder, major depressive disorder, and generalized anxiety disorder;
The worker is entitled to full loss of earnings benefits from March 17, 2023;
Entitlement to funding for ongoing mental health treatment is in order. It is left to the discretion of the Operating Area to determine which mental health care provider the WSIB will fund for this treatment;
The Operating Area is to monitor the worker’s mental health progress and determine when he has reached maximum medical recovery, whether a permanent impairment is evident at that time, and if a referral for a non-economic loss award determination is in order;
The employer did not provide the worker with suitable work as a Health and Safety Coordinator from November 2015 to February 2017;
Health and Safety Coordinator, national occupation code 2263, is not currently a suitable direct-entry occupation for the worker;
The Operating Area is to reactivate the return-to-work plan process once it has determined that the worker is able to participate; and,
The Operating Area is to conduct the final loss of earnings benefit review by the appropriate time as per operational policy 18-03-06 Final LOE Benefit Review (i.e. within 24 months of the non-economic loss award processing date, if a non-economic loss award determination is granted for the psychotraumatic disability, or within 30 days of the completion of the return-to-work plan).
The worker’s objections are, therefore, allowed in part.
DATED June 19, 2023.
C. da Cunha Appeals Resolution Officer Appeals Services Division