DECISION NUMBER:
20230098
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
HELEN SHAW, APPEALS RESOLUTION OFFICER
JULY 19, 2023
ISSUES
The worker is objecting to:
The denial of entitlement for secondary conditions of both shoulders, both forearms, the right wrist, low back, both hips, both knees and left ankle in the Case Manager decisions of November 24, 2021 and July 15, 2022;
The denial of entitlement for a psychotraumatic disability in the Case Manager decisions of November 24, 2021 and July 15, 2022; and
The reduction to partial loss of earnings (LOE) benefits as of March 21, 2022, based on the worker’s ability to earn $15.00 per hour, working 40 hours per week in the suitable occupation (SO) of Administrative Clerk, in the Case Manager decision of April 7, 2022.
BACKGROUND
The worker was employed as a truck driver. On November 28, 2016, they stepped on the passenger side of the truck to clean a mirror, lost their footing while stepping down and twisted the right ankle. The worker was 50 years old when the injury occurred.
Initial entitlement was allowed for a right ankle fracture. Full LOE benefits were paid from November 29, 2016 to February 6, 2017. Partial LOE benefits were paid from February 7, 2017 to January 29, 2018, when the worker returned to modified work performing clerical duties on reduced hours.
Full LOE benefits were paid again from January 29, 2018, because the employer could no longer provide modified work. The worker’s recovery and treatment was monitored by the Foot and Ankle Specialty Program.
It was determined that the worker reached maximum medical recovery (MMR) as of January 14, 2019, with a permanent impairment for a right ankle strain with avulsion injury with lateral gutter and neuropathic pain. On September 3, 2019, the worker was granted a 4% Non-Economic Loss (NEL) benefit for the permanent right ankle impairment.
A report from the Specialty Program dated March 28, 2019, recommended surgery. Surgery was performed on May 7, 2019, consisting of a right ankle arthroscopic synovectomy, arthrotomy and excision of a loose body with reconstruction of ankle ligaments. The worker required the use of an aircast after the surgery. The worker initially needed a wheelchair for mobility but was able to transition to the use of crutches.
The worker claimed that they developed secondary conditions in the lower back, both knees and both hips as a result of compensating for the right ankle injury. A decision dated August 20, 2019, denied entitlement for the bilateral hips, bilateral knees and low back as secondary conditions. The denial was confirmed in a reconsideration decision dated November 15, 2019.
The worker was provided with return to work (RTW) services. The employer offered to accommodate the worker with dock work/forklift operation, starting at two hours per shift on August 19, 2020. Partial LOE benefits were paid from August 19, 2020 to October 14, 2020. It was determined that the modified duties were not consistent with the worker’s right ankle restrictions and the work trial ended on
October 14, 2020. Full LOE benefits were restored as of October 14, 2020 and continued until March 20, 2022.
The worker started an Enhanced Functional Treatment (EFT) program at the Lower Extremity Specialty Program on February 1, 2021, and was discharged on March 12, 2021.
An interim RTW plan was developed, sponsoring the worker in academic upgrading. A specific SO was not identified because options were still being considered with the injury employer. The worker was scheduled to start academic upgrading on April 6, 2021 and was able to work on upgrading at home. The interim plan ended on June 18, 2021.
In a letter dated June 2, 2021, the worker representative requested a NEL redetermination for the right ankle, entitlement for secondary conditions of both shoulders, both forearms, the right wrist, both hips, both knees and the low back. They also requested psychological treatment due to depression resulting from the injury.
The Case Manager decision of November 24, 2021, confirmed the denial of secondary conditions of the bilateral hips, bilateral knees and low back. Entitlement was denied for secondary conditions of both shoulders and forearms, the right wrist and left ankle. The decision also denied entitlement for a psychotraumatic disability and treatment. A permanent worsening was recognized for the right ankle, with a permanent worsening date of April 22, 2021.
In a decision dated December 20, 2021, the worker’s NEL benefit was increased to 5%.
The worker was asked to participate in additional RTW planning, to assist with confirming a SO. The worker maintained an inability to participate in return to work activities because of ongoing pain and functional limitations. The Return to Work Specialist (RTWS) recommended Administrative/General Office Clerk, National Occupational Classification (NOC) 1411, as a SO for the worker. The SO and the RTW plan with training was confirmed in a decision letter dated February 16, 2022. The RTW plan
involved academic upgrading, computer skills training and employment services and was scheduled to run from March 7, 2022 to November 11, 2022.
The worker determined they were not able to return to work or participate in retraining because of pain, depression and anxiety. Return to work services were closed in a letter dated March 18, 2022. The Case Manager decision of April 7, 2022, determined the worker would be paid partial LOE benefits from March 21, 2022, based on the worker’s ability to earn $15.00 per hour for 40 hours per week working as an Administrative Clerk, NOC 1411.
The worker representative continued to object to the denial of ongoing entitlement to LOE benefits and the denial of secondary conditions.
The Case Manager decision of July 15, 2022, confirmed the denial of secondary entitlement for the bilateral shoulders, bilateral forearms, bilateral hips, bilateral knees, left ankle, right wrist and low back and upheld the decision to reduce the worker to partial LOE benefits. The decision also confirmed there was no psychotraumatic entitlement, noting there was no DSM-V diagnosis.
AUTHORITY
Operational Policy Manual Published
15-05-01 Resulting from Work-Related Disability/Impairment 15-04-02 Psychotraumatic Disability
19-02-10 RTW Assessments and Plans
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
April 9, 2021
September 7, 2018
November 30, 2020
September 1, 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 March 21, 2023, with an attached submission. They objected to the denial of entitlement for both shoulders, both forearms, the right wrist, low back, both hips, both knees, left ankle and a psychotraumatic disability. They also objected to the SO and the adjustment to partial LOE benefits. They are seeking reinstatement of full LOE benefits from March 21, 2022 and further treatment. The worker representative argued that the secondary conditions were caused by favouring the right ankle and the ongoing use of crutches. They argued that the worker’s clinical presentation is indicative of features of chronic pain syndrome. Regarding the SO and the reduction to partial LOE benefits, the worker representative argued that the worker has no transferrable skills for the SO. They requested that the worker be referred to a Community Mental Health Program (CMHP) for assessment and treatment.
The employer is not participating in the appeal and did not provide a Respondent Form. Secondary Organic Conditions
I find there is no entitlement for secondary organic conditions. My reasons are explained below.
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.
The evidence shows that the worker has regularly reported symptoms of widespread pain in multiple joints in both the upper and lower extremity. However, medical reports have not identified specific organic diagnoses for the secondary conditions and have instead suggested that the worker’s symptoms are consistent with a chronic pain disorder. In reaching this conclusion, I specifically note the following medical evidence:
A fracture clinic report dated February 14, 2017, indicated the worker was reporting pain in the left hip and left buttock and also noted the worker had a long history of low back problems.
A Specialty Program assessment report dated June 6, 2017, indicated the worker was able to walk with moderate antalgia and no assistive device. The worker was wearing a lace up ankle brace, which the worker reported wearing constantly.
A report from the worker’s doctor dated August 16, 2017, noted that the worker’s antalgic gait from the right ankle injury was beginning to affect the left leg and was aggravating some mechanical back pain, but no specific diagnoses were provided.
A Specialty Program pain management report dated August 25, 2017, indicated that the worker walked with an antalgic gait with a short stride and partial weight bearing on the right lower extremity.
A Specialty Program follow-up report dated February 8, 2018, indicated that in addition to constant right ankle pain, the worker also reported pain in the left ankle, both knees and both hips, which the worker attributed to compensating for the right ankle. Although the worker reported pain, no diagnoses were provided for the secondary areas of pain.
A report from the Specialty Program dated May 17, 2018, noted that the worker reported that they first noticed left leg pain when they stopped using crutches. The left leg pain was gradually improving. The worker also reported clicking and soreness in both knees and right hip pain. The worker walked with an antalgic gait but did not use a gait aid at that time. Treatment at a Function and Pain Program (FPP) was recommended.
The FPP assessment report dated June 20, 2018, noted the worker had features of a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition. The worker presented with an antalgic gait and reduced range of motion in the right ankle, but there were limited findings regarding the secondary conditions. The worker displayed full pain-free range of motion in the knees and hips. Treatment at the FPP was recommended but the worker declined because they preferred to attend treatment closer to home.
An orthopaedic opinion from the Specialty Program, dated August 30, 2018, recommended an Enhanced Functional Treatment (EFT) program. The worker attended twice per week from November 23, 2018 to January 3, 2019. The Specialty Program follow-up report dated
January 14, 2019, indicated the worker did not make progress with the EFT program in terms of pain or functional abilities.
A follow-up report from the Specialty Program, dated October 11, 2018, noted that in addition to right ankle pain, the worker reported bilateral knee pain and right hip pain.
A report from the worker’s family doctor dated March 27, 2019, suggested that the worker’s symptoms had worsened over the previous year, with the antalgic gait becoming more pronounced, resulting in mechanical strains on other joints including the left knee, bilateral hips and lower back. The doctor reported that the worker’s prior history of low back pain had largely resolved until the ankle injury occurred. Although the worker’s doctor diagnosed joint strains, no specific findings were provided to support the diagnosis or explain the chronicity of the worker’s pain.
A letter from the family doctor dated July 10, 2019, indicated the worker continued to report pain in both knees, both ankles, both hips and the lower back. The doctor related the other areas of joint pain to overuse due to compensating for the right ankle, but diagnostic reports showed only degenerative findings consistent with the worker’s age. A CT scan of the lumbar spine on
August 9, 2017, showed some degenerative disc disease at L3-4, L4-5 and L5-S1 and bilateral L5 spondylolysis with minimal L5 on S1 spondylolisthesis. X-rays on March 27, 2019, showed mild osteophyte formation at both hips suggesting early osteoarthritis with no other significant pelvic findings. There was mild medial compartment narrowing in both knees with early osteophyte formation in both patellofemoral joints. Other than the work injury to the right ankle, x-rays did not show any other remarkable findings in either ankle.
The Specialty Program progress report of August 22, 2019, noted that the worker continued to report constant pain in the right ankle and foot, grinding pain in the left knee with weight bearing activities and bilateral hip and right knee pain. The worker was still using crutches. The worker was told to gradually wean off use of the aircast and crutches.
The file was reviewed by an Occupational Health Assessment Program (OHAP) on September 16, 2019. The OHAP consult noted that the worker’s right ankle injury led to the
development of chronic neuropathic pain and an antalgic gait. The worker’s gait was described as slow and their self-reported walking tolerance was five to ten minutes. Noting the worker’s minimal level of activity, it was the opinion of the OHAP consult that the worker had not maintained a high enough level of weight bearing activity to plausibly overload other joints and cause secondary conditions. The OHAP consult also provided an opinion that the reported shoulder pain was not plausible or reasonable, noting the worker was initially using a wheelchair post-operatively and should only have required the use of crutches for approximately six weeks after the surgery. The OHAP consult determined it was not reasonable to conclude that the worker would develop pain in every large joint of their body and their spine as a result of the right ankle injury.
At the Specialty Program follow up appointment on October 3, 2019, the worker was still using the aircast and two crutches to support mobility. In addition to the right ankle pain, the worker also reported intermittent grinding pain in the left knee, with left knee symptoms being present for approximately one year. The worker also continued to report pain in the lower back, both hips and right knee that was less severe than the left knee. The worker reported no significant improvement in the right ankle. Despite the ongoing reports of widespread pain, no clear diagnoses were provided for the secondary areas of pain.
An orthopaedic specialist report from Dr. Chan dated October 15, 2019, indicated the worker reported increasing symptoms in both knees and both hips. X-rays showed mild medial compartment degenerative arthritis of both knees and some early osteophyte formation in the hips. There was no pain with rotation of both hips in extension or flexion. There was some tenderness over the greater trochanter of the right hip. There was no effusion or patellofemoral
pain in either knee. The left knee had some anterior medial joint line tenderness and a clicking sensation on flexion. The orthopaedic specialist suggested the left knee symptoms could be part of the mild degenerative changes in the medial compartment. The report indicated that the secondary lower extremity symptoms could be the result of the mal-adaptive gait from the right ankle injury but also noted there was no objective evidence to confirm it.
The Specialty Program progress report dated November 27, 2019, recommended an EFT program, noting the minimal progress the worker had made. The worker continued to rely on the aircast and crutches and was using a wheelchair at the appointment.
The Specialty Program progress report dated January 24, 2020, noted they recommended perineural injections around the right foot and ankle with local anaesthetic and steroid but the worker declined the treatment and also declined the potential use of medications. The worker was still not willing to confirm participation in an EFT program and continued to walk with the use of crutches.
A Specialty Program pain management consultant report dated March 11, 2020, recommended a two week trial of an integrated Pain Rehabilitation Program, with the worker attending three times per week.
The worker attended an Allied Health Intake with a psychotherapist on May 1, 2020. Four Allied Health sessions were approved, with the intention to bridge the worker to the EFT program. Four additional virtual Allied Health sessions were approved from May 25, 2020 to June 26, 2020. The worker did not participate in the EFT program because COVID-19 restrictions prevented in-person appointments and the worker did not have the necessary technology to attending virtual care sessions.
The Specialty Program report of September 10, 2020, noted the worker stopped using crutches in early August 2020. The worker reported constant pain in the right ankle and heel, intermittent right calf pain since returning to work, clicking in the right ankle, intermittent tingling and swelling and problems with the left ankle, both knees, both hips and the low back. The report indicated that no further improvement was expected.
The Specialty Program Specialty Consultation report of April 20, 2021, noted the worker had resumed use of bilateral crutches.
A report from the worker’s family doctor dated June 14, 2021, indicated that as a result of chronic dependence on crutches, the worker developed shoulder discomfort and irritation as well as wrist pain. The worker had a pronounced altered gait. The worker’s doctor claimed there was no mention of low back pain from 2007 to the date of the workplace injury. It was the family doctor’s position that those conditions developed as a result of the right ankle injury and the abnormal gait, but no specific diagnoses were provided to identify the nature of the worker’s secondary pain complaints.
An OHAP case consult on July 8, 2021, suggested the worker had developed features of a chronic pain presentation, with the worker reporting high levels of pain and disability, with minimal improvement in symptoms despite extensive treatment.
A letter from the worker’s family doctor dated April 9, 2022, noted that the worker reported pain in both knees and both shoulders, although range of motion in those areas was reasonable. The
worker also had restricted range of motion in the low back. The doctor related the pain in the shoulders, knees and low back to the worker’s ongoing use of crutches and antalgic gait, but provided no clear diagnoses.
After weighing the evidence, the medical reports and opinions establish that the worker reported chronic pain in the left ankle, both knees, both hips, both shoulders, both forearms, low back and right wrist. The worker has argued that it was caused by the altered gait and use of crutches, which has been supported by the family doctor, but in the absence of clear evidence of diagnoses to establish new organic injuries, I am unable to determine that a causal link exists between the worker’s right ankle injury and the reports of secondary areas of pain. The orthopaedic specialist report from Dr. Chan dated October 15, 2019, indicated that the secondary lower extremity symptoms could be the result of the mal-adaptive gait from the right ankle injury but also acknowledged there was no objective evidence to confirm it.
The weight of the evidence suggests no clear organic diagnoses to explain the secondary areas of pain, but there are opinions indicating the worker is experiencing chronic pain. The FPP assessment report of June 20, 2018, noted the worker had features of a pain disorder. The OHAP case consult dated
July 8, 2021, suggested the worker had developed features of a chronic pain presentation, with the worker reporting high levels of pain and disability. A letter of objection from the worker representative, dated December 2, 2021, also argued the worker had developed chronic pain disorder and requested a formal ruling on entitlement for chronic pain disability (CPD).
No decision has been made on entitlement for CPD; therefore, it is not an issue before me in this appeal. I will leave it to the worker and their representative to determine if they wish to pursue CPD entitlement with the operating area.
In summary, noting the absence of organic findings and organic based diagnoses for the secondary areas of pain, I am unable to establish entitlement for secondary conditions of both shoulders, both forearms, the right wrist, low back, both hips, both knees and left ankle.
Psychotraumatic Entitlement
I find the evidence is not sufficient to establish entitlement for a psychotraumatic disability.
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.
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 five years of the injury, or within five years of the last surgical procedure.
I am unable to allow entitlement for a psychotraumatic disability, noting the limited evidence of a psychotraumatic diagnosis. In reaching this conclusion, I specifically note the following medical evidence:
A Specialty Program assessment report dated June 6, 2017, indicated the worker reported extreme symptoms but no psychosocial concerns were noted.
A report from the worker’s doctor dated July 10, 2017, indicated the worker reported feeling stress and anxiety related to the modified duties, but no psychological diagnosis was provided.
A report from the Specialty Program dated May 17, 2018, recommended treatment at a Function and Pain Program (FPP).
The FPP assessment report of June 20, 2018, noted the worker had features of a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, but no significant mood or anxiety concerns were noted.
A letter from the worker’s family doctor dated April 9, 2022, indicated that the worker had lost independence, was no longer able to drive and could not stand comfortably, leading to depression and anxiety. The doctor acknowledged there was no clear diagnosis.
As I noted above, there are medical opinions suggesting the worker has a pain disorder, but that diagnosis is not addressed under the psychotraumatic disability policy. Entitlement for CPD would need to be considered at the operating level before it can be reviewed at the appeals level.
Because the available evidence does not establish a clear psychotraumatic diagnosis, I find the evidence does not establish entitlement for an psychotraumatic disability.
Return to Work Plan and Loss of Earnings Benefits
I find partial LOE benefits were appropriately paid from March 21, 2022.
According to operational policy 19-02-10, a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
The worker representative argued that the worker does not have transferrable skills to work in the Administrative Clerk SO but I find their position is not supported by the evidence. Although the worker had worked as a truck driver for most of their career, the worker performed clerical duties with the employer while on modified duties and the worker acknowledged acquiring some computer skills while in the modified job, including using Google, Google Maps and the employer’s internal pricing system. Any skills gaps would have been addressed through the RTW plan with training, which would have provided the worker with additional academic upgrading, computer skills and employment services. A psychovocational assessment on February 2, 2018, indicated the worker could likely manage on-the-job training or a program of less than a year that was applied or practical in nature. A psychoeducational
assessment report dated May 3, 2018, confirmed the recommendations from the psychovocational assessment.
The following permanent restrictions were recognized for the right ankle impairment in the decision of November 24, 2021: standing limited to 15 to 30 minutes; walking up to five minutes; stair climbing up to five steps with bilateral railing support; avoid lifting, pushing/pulling and ladder climbing; unable to drive; able to use public transit if a seat can be made available; functioning at a sedentary physical demand level; and avoid low level work such as crouching, squatting or kneeling.
According to claim file memo A from a RTWS, dated January 4, 2022, the Administrative Clerk SO was physically suitable for the worker, as it involved limited strength and sitting. Labour market information contained in claim file memo B dated January 12, 2022, showed jobs were available in the SO at a starting wage of $15.00 per hour. Based on this information, I am satisfied that the Administrative Clerk SO was available, suited to the worker’s transferable skills, consistent with the worker’s functional abilities, and would have restored the worker’s pre-injury earnings to the extent possible.
Although the worker representative argued that the SO was not suitable, the worker’s primary position has been that they are unable to work or participate in retraining. According to operational policy 18-03- 02, 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 return-to-work (RTW) process.
Based on the worker’s accepted right ankle impairment and permanent restrictions, the evidence does not establish that the worker is unable to return to any type of work. Operational policy 18-03-02 also states in part that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. Determined earnings are the earnings associated with the identified SO, and are based on current labour market wage information. The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker:
will not be provided with RTW services
remains unemployed at the completion or closure of the RTW plan (with training)
is underemployed in a job not identified in the SO, or
is voluntarily underemployed in the identified SO.
The worker claimed they were unable to participate in a RTW plan with training; therefore, I find it was appropriate to pay partial LOE benefits from March 21, 2022, based on the worker’s ability to earn an entry level wage of $15.00 per hour in the SO.
My conclusions regarding the suitability of the SO, the worker’s ability to work and the payment of partial LOE benefits is based on the worker’s current entitlement for the right ankle impairment. If the worker decides to pursue entitlement for CPD at the operating level and if entitlement changes, the operating area would retain the right to review issues of SO suitability, restrictions and benefits flowing from any change in entitlement.
CONCLUSION
I conclude:
There is no entitlement for organic secondary conditions of both shoulders, both forearms, the right wrist, low back, both hips, both knees and left ankle.
The evidence does not establish entitlement for a psychotraumatic disability.
The SO of Administrative Clerk is suitable based on the right ankle impairment and partial loss of earnings benefits were appropriately paid as of March 21, 2022, based on the worker’s ability to earn $15.00 per hour, working 40 hours per week.
The worker’s objection is denied.
DATED July 19, 2023
Helen Shaw
Appeals Resolution Officer Appeals Services Division