Worker v. Employer, 2024 CanLII 140464

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20250009

OBJECTING PARTY: worker

REPRESENTED by: Worker representative

RESPONDENT PARTY: employer (not particiapting)

HEARING: VIDEOCONFERENCE – october 2, 2024

HEARD by: L. Cirillo, appeals resolution officer

DATED: October 28, 2024

ISSUE

The worker objects to the Case Manager’s (CM’s) decision dated November 25, 2022, which denied entitlement to psychotraumatic disability.

BACKGROUND

On September 15, 2020, the worker was setting down a steel plate with a pump truck and a pry bar. While the steel plate was being lowered, it struck the pry bar, causing the pry bar to forcefully snap upwards and strike the worker in his genital area. At the time, the worker had been working for the employer as a Labour Journeyman for 2 years.

The worker sustained a scrotal bruise/contusion and laceration and was transported to the emergency room (ER), where he underwent a scrotal surgical repair, performed by Dr. Fazio, Urologist.

Initial entitlement was allowed, and full Loss of Earnings (LOE) benefits were paid from September 16 – 21, 2020. The worker participated in ongoing treatment and underwent additional follow-up and debridement of the injured area in October 2020.

The record reveals that the worker returned to regular duties in January 2021.

It was concluded that the worker reached Maximum Medical Recovery (MMR) with no Permanent Impairment (PI) as of January 28, 2021. The decision was communicated to the worker in correspondence dated May 11, 2021.

Note is made that in December 2021, the worker contacted the WSIB to report that he had missed time from work in November 2021 due to his injury; however, he was advised that there was no ongoing entitlement in the claim.

In May 2022, Dr. Amaral, Psychologist contacted the CM and advised that the worker commenced treatment with him in May 2022 and as a result, requested coverage for psychological treatment.

In correspondence dated July 18, 2022, the worker’s representative requested entitlement to psychotraumatic disability. In support of his position, he submitted a report from Dr. Amaral dated June 29, 2022, where it was noted that the worker had been referred to him related to day-to-day functioning; however, he displayed many symptoms associated with Post-Traumatic Stress Disorder (PTSD) including nightmares and intrusive thoughts related to the workplace accident and as a result, he requested consideration for psychological services. The diagnosis of PTSD was later confirmed in a letter dated October 26, 2022.

It was ultimately concluded that while the worker’s psychological issues manifested within five years from the date of injury, the entitlement criteria for psychotraumatic disability had not been met. Further, the diagnosis of PTSD was not compatible with the accident history. As a result, entitlement for psychotraumatic disability was denied. The decision was communicated to the worker in correspondence dated November 25, 2022.

Note is made that in July 2023, the worker’s representative requested entitlement to a recurrence of the organic condition, which he claimed occurred in November 2021. Entitlement to the recurrence was denied in correspondence dated July 13, 2023.

In correspondence dated October 11, 2023 and May 13, 2024, the worker’s representative requested reconsideration of the November 25, 2022 decision. In support of his position, he submitted new medical reports from Dr. Amaral dated August 11, 2023, October 6, 2023, and April 19, 2024. The reports outlined that the worker “resigned” from his employment on June 28, 2023, due to complications brought on by his workplace injury and that while he stated that there had been some improvement in his psychological condition in October 2022, this was stated prematurely and instead, the worker continued to display symptoms consistent with PTSD and he now met the criteria for both PTSD and a mood disorder. It was also noted that the worker had been involved in a Motor Vehicle Accident (MVA) in May 2023, however, he opined that this had little impact on the worker’s functioning.

Despite the above, it was once again concluded that the entitlement criteria for psychotraumatic disability had not been met and as a result, entitlement remained denied. The reconsideration decisions were communicated to the worker in correspondence dated December 12, 2023 and May 24, 2024.

In correspondence attached to the Appeal Readiness Form (ARF) dated July 24, 2024, the worker’s representative objected to the denial of psychotraumatic disability. In support of his position, he submitted a solicited report from Dr. Amaral dated July 12, 2024 (solicitation letter dated June 5, 2024). Dr. Amaral indicated in part, that the worker had had an emotional reaction to the workplace injury.

Once again, it was determined that despite the new medical received to the record, the diagnosis of PTSD was not compatible with the accident history and the remainder of the entitlement criteria for psychotraumatic disability had not been met. The reconsideration decision was communicated to the worker in correspondence dated August 20, 2024.

As the worker continued to object to the decision and it remained unchanged, the matter was referred to the Appeals Services Division for further consideration.

Worker’s Position:

At the oral hearing, the worker testified to the following in part:

• He denied having any previous physical or psychological issues prior to September 2020;
• When he came to Canada, he worked in the construction industry as a Labourer for 25 – 26 years;
• He provided a detailed accident history and explained that on the date of injury, his boss called and asked him to go underneath a tunnel because they were going to place a steel plate there that weighed between 5 – 6 tonnes with a crane. The worker noted that it was a complicated process because of the tight quarters and because he could not see what was happening. All the instructions were given by radio;
• The crane was supposed to lower the plate about 100 feet down but at about 2 – 3 feet, the plate detached the prybar, and the bar came flying up towards him and hit him in between his legs/groin;
• Everyone started yelling and screaming;
• The worker stated that he immediately lowered his pants and there was so much blood, and he was in extreme pain. He could see that one of his testicles had been completely ripped open;
• He called for help by radio, and he was only able to get out of the tunnel by the stairs. By the time he reached the surface, the ambulance was waiting for him;
• The worker recalled that the paramedic told the driver to go as fast as possible;
• He outlined that he was seen by Dr. Fazio, Urologist and immediately underwent surgery to repair two tears in his scrotum;
• The worker recalled waking up from the surgery and immediately using his phone to take pictures of his injury and to see what they had done to him, which caused him to become emotional;
• The worker outlined that despite his injury, he kept working after he returned to work, but he did not work as many hours as he used to. He stated that he had difficulty walking and despite what is stated in the claim, he never went back to his regular duties;
• The worker explained that he immediately started to develop psychological issues related to his injury. However, because of the COVID-19 pandemic he was unable to participate in psychological treatment especially because there were no doctors available that could speak his language. While he spoke to his family doctor about it, she was very much behind in her appointments, and he was left by the wayside;
• He was finally able to get in to see Dr. Amaral in 2022 and during his sessions, the psychologist discovered that his workplace accident had been traumatic, and this is what caused his condition. He was ultimately diagnosed with PTSD;
• The worker provided robust testimony with respect to how his mental state negatively affected his Activities of Daily Living (ADLs), social life, family relationships, sleep (flashbacks and nightmares), appetite, chores, concentration, and mood (does not feel like living anymore);
• The worker testified that after his injury/mental health issues, he was never the same person as he was before. He stated that he was not the same man to his wife, they had constant arguments (with wife and son). He also noted that there was a long period of time that he did not even sleep in the same bed with his wife. He explained that he could not face anything and everything irritated him, and he was extremely angry. He had ruminating thoughts about why this happened to him when he was a person who was always so careful and tried to be safe;
• The worker outlined that he thinks about the accident every day and he was very emotional during this testimony. He avoided going to the same site where the accident happened because he could not face it;
• The worker noted that while Dr. Amaral said that his condition had improved a bit in October 2022, this was because he was finally able to get the courage to open up to someone about how he had been feeling;
• The worker stated that he started taking medication (for depression) at that time and it helped;
• The worker confirmed he was involved in a MVA in May 2023. He explained that he left for work at 4:30 a.m. that day and while he was driving on highway 401, a truck changed lanes, which caused a piece of block [sic] to fall down and strike his car. The worker explained that the impact/noise from that piece hitting his car caused him to have flashbacks from his workplace accident. He stated he was not injured at all physically, but it affected him psychologically because it brought back all the disturbing memories he had gone through at the workplace;
• After the MVA, he only worked very little, and stopped working completely in June 2023. The worker stated he stopped because he did not have any strength to get up anymore, he could not concentrate, and did not want to put his or his colleagues lives in danger in anymore;
• The worker denied wanting to retire, he wanted to work but he does not feel up to it. Everything is still fresh in his mind, and everything is confusing to him;
• The worker stated that in order to go back to work he needs to heal mentally;
• The worker provided details with respect to his current daily activities, and he reiterated that he spends most of his days doing very little;
• The worker recalled that at the time of his accident, when he got hit by the prybar, his immediate thought was “OK that’s it” – he was afraid for his life. He recalled that the pain was so strong, and he immediately knew that his manhood would never be the same – a thought that a man does not like to think of

During his closing statement, the worker’s representative provided a summary of the medical reporting on file, which will not be repeated. He argued that despite the findings of the operating area, the worker’s accident was in fact very traumatic and resulted in a serious injury. In his view, operational policy does not state that if the physical condition ends that the psychological condition ends as well.

He submits that the worker did have an extended disablement, noting he never went back to his full job duties and as a result, entitlement ought to be allowed for psychotraumatic disability in the form of PTSD and Major Depressive Disorder (MDD) and any benefits flowing.

AUTHORITY

Operational Policy Manual

Published

15-04-02 – Psychotraumatic Disability

September 7, 2018

Support Material

Workplace Safety & Insurance Appeals Tribunal (WSIAT) Medical Discussion Paper - Post Traumatic Stress Disorder - February 2010; Revised: September 2015; Revised: September 2022; Prepared by: Diane Whitney MD, FRCPC, BCETS

ANALYSIS

I have reviewed the record and considered the information and relevant operational policy in reaching this decision. In considering all of the evidence, including the medical reporting from Dr. Amaral, testimony provided at the oral hearing and the arguments presented, I find entitlement for psychotraumatic disability for the diagnoses of PTSD and MDD is in order.

The rationale for my decision is as follows.

The Workplace Safety & Insurance Board’s Operational Policy 15-04-02 states in part:

General rule

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.

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

Psychotraumatic disability/impairment resulting from organic brain damage is assessed as a permanent disability/impairment.

Psychotraumatic disability entitlement

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.

The worker’s representative argues that due to the traumatic nature of the worker’s accident and his reaction to his injury caused him to develop a psychotraumatic disability in the form of PTSD and MDD.

In reviewing the medical reporting on file, I note the following reports from Dr. Amaral, Psychologist:

• June 29, 2022 – referred to him by the worker’s family physician Dr. Rodrigues related to his day-to-day psychological functioning. The cause of his issues are a direct result of a traumatic workplace accident that took place in September 2020. This accident led to the worker having immediate surgery on that day. After meeting with the patient for several hours, he displays many of the symptoms associated with PTSD in the DSM-5 – including nightmares and intrusive thoughts related to the accident; isolation and withdrawing from loved ones; disinterest in activities that would normally give him pleasure; hypervigilance, irritability, and withdrawing from others; difficulty or avoidance in discussing the events with others;
• October 26, 2022 – the worker commenced treatment with him on May 5, 2022; over the course of several visits he received 8 hours of therapy; a semi-structured interview was completed in May 2022 and at that time, the intake results indicated that the worker was suffering from PTSD and this was determined to be the diagnosis based on the events of September 15, 2020; his condition has improved and the PTSD is in remission; primary restrictions include avoid performing the same duties that led to the accident in question; although the PTSD is in remission, the patient has not returned to full functioning – he still experiences flashbacks, and intrusive memories from the event therefore, it was recommended that he continue with psychotherapy;
• August 11, 2023 – As a result of his mental stress injury (caused by the traumatic injury), the worker continues to experience psychological distress and impairment in normal functioning; his symptoms include nightmares and intrusive thoughts related to the accident; isolation and withdrawing from loved ones; disinterest in activities that would normally give him pleasure; hypervigilance, irritability, and withdrawing from others; difficulty or avoidance in discussing the event with others; the worker continues to experience these symptoms to date and they make it difficult for him to return to a previous level of normal functioning;
• October 6, 2023 – Has been working with the patient since May 2022 on a bi-weekly to monthly basis; treatment has focused exclusively on reducing symptoms of trauma, anxiety, and depression which were brought on by a serious injury sustained while at work; while the patient has shown signs of progress, he continues to demonstrate hypervigilance while at work, difficulty with concentration, routine flashbacks of the traumatic event, and he has become withdrawn from colleagues and had episodes of severe panic;
• April 19, 2024 - the patient's diagnosis is PTSD and major depressive disorder single episode moderate; while I noticed improvement in the worker’s mood in October 2022 this was likely due to the worker’s positive response to receiving treatment from a Portuguese-speaking psychologist. Shortly after my sessions in October 2022 the worker continued to display symptoms consistent with the psychotraumatic injury (i.e., PTSD). Today the client's mood has worsened, the client is meeting criteria for both PTSD and a mood disorder. Diagnosis is due to the workplace injury. While the worker suffered a motor vehicle accident this has had little impact on his functioning. The PTSD is due to the workplace injury and there does not seem to be any diagnosis caused by the MVA; prior to the MVA the worker was already contemplating the cessation of work period. The MVA seems to have confirmed to the worker that it was time to retire and cease working… ideally the client’s treatment should include more regular therapy sessions on a biweekly schedule… in summary it is this writer's opinion that the client met the criteria for PTSD when he was first seen in May 2022; while there was a period of approximately 3 months when the client reported an improvement in his mood he continued to have nightmares and flashbacks that were related to the workplace injury… Since that time the client’s mood has worsened, he now meets the additional criteria for major depression disorder [sic];
• July 12, 2024 - he confirms that as of today the worker continues to have an emotional reaction to the workplace injury that took place in September 2020. The workers emotional response and symptoms of a psychological injury continue to be displayed not only during treatment sessions but also in his daily functioning… the worker sustained a severe physical injury to his testicles and scrotum. The medical evidence substantiates that as a result of this injury the worker has become hypersensitive to any sensations or discomforts in his genital area. This hypersensitivity has led him to be more self-conscious and preoccupied with sustaining any additional trauma to this part of his body… the worker’s sex life and intimacy has taken a terrible toll since the workplace accident. He has been unable to be physically intimate with his wife, thereby placing additional strain on his marriage and contributing to feelings of low self-worth personal shame, and inadequacy. While the initial treatment plan focused on treating him for PTSD the impact this injury has had on his social and psychological functioning have led to the sequelae of MDD

During the hearing, I found the worker to be forthright and credible in his testimony and I accept that he began to develop psychological symptoms immediately following the workplace accident in September 2020. I also accept that due to the COVID-19 pandemic he had difficulty securing health care with his family doctor and more importantly with a Portuguese-speaking Psychologist.

The worker was initially diagnosed with PTSD.

The WSIAT Medical Discussion Paper outlines the following in part:

Trauma – Criterion A Stressor:

The person was exposed to actual or threatened death, serious injury or sexual violence in one (or more) of the following ways (one required):

1. Direct exposure;
2. Witnessing in person;
3. Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental;
4. Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts, professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

Comment: An event may be traumatic i.e., distressing and upsetting to an individual however to meet the PTSD criteria outlined above the following MUST be met i.e., exposed to death, threatened death or serious injury [my emphasis added].

In considering the accident history, as it was described during the oral hearing, I accept that the events that unfolded on that day could have caused death or serious injury to the worker. I come to this conclusion on the basis that the worker was in a tunnel, with limited visibility (i.e., instructions were being relayed by radio) where a crane was manoeuvring a 5 – 6 tonne steel plate. The plate slipped and hit the prybar (which was described as being 5 feet long and weighing 10-12 kilograms - Form 6), which went flying up and striking the worker in his genital area. The worker testified that in that moment he thought “OK that’s it” and he feared for his life.

I am also persuaded by Dr. Amaral’s opinion, as he is a mental health professional who is trained to assess and diagnose problems in thinking, feeling and behaviour as well to help people overcome or manage these problems. Further, he is uniquely trained to use psychological tests to help with assessment and diagnosis, which the worker underwent, and appear to have been valid and reliable.

In reviewing the medical evidence on record from Dr. Amaral, it is clear that the worker met the diagnostic criteria for PTSD from the onset and this was a direct emotional reaction to the accident and the injury. Further, the worker went on to develop a MDD, which the treating practitioner also opines is directly attributable to an emotional reaction to the accepted work-related accident and injury, which has led to hypersensitivity to any sensations or discomforts in his genital area. This hypersensitivity has led him to be more self-conscious and preoccupied with sustaining any additional trauma to this part of his body. Further, the worker’s sex life and intimacy has taken a terrible toll since the workplace accident and he has been unable to be physically intimate with his wife, which has placed strain on his marriage and has contributed to feelings of low self-worth, personal shame, and inadequacy.

In reviewing the medical reporting on file and testimony provided at the oral hearing, there is evidence that the worker was no longer able to participate in many activities that he used to do before the accident. In addition, the injury has caused disruption to the worker’s sleep, mood, quality of life and ability to administer self-care (ADLs).

While I acknowledge the worker’s symptoms were reported to have ameliorated on or around October 2022 (as was noted in Dr. Amaral’s report), this does not automatically equate to disentitlement. Further, Dr. Amaral clarified that despite the reported improvement, the worker had not returned to full functioning, and it was noted that he still experienced flashbacks, and intrusive memories from the event and as such, it was recommended that he continue with psychotherapy.

In considering all of the above, and in the absence of any medical to the contrary, I accept Dr. Amaral’s opinion and find that the worker’s psychotraumatic disability manifested within 5 years of the injury, is related to an emotional reaction to the accident/injury and the diagnosis is compatible with the accident history. For these reasons, I find entitlement for psychotraumatic disability in the form of PTSD and MDD is allowed.

As it appears that the worker remains in treatment, I find it is premature to render a final decision on MMR/PI. Further, as there is conflicting evidence on file with respect to whether the worker retired or was no longer able to continue working due to his psychological condition, I find it is also premature to render a final decision on LOE benefits, if any.

As a result, the level and duration of benefits is left to the discretion of the operating area.

CONCLUSION

I conclude entitlement for psychotraumatic disability in the form of PTSD and MDD is allowed.

The level and duration of benefits is left to the discretion of the operating area.

The worker’s objection is therefore, allowed.

DATED October 28, 2024

L. Cirillo Appeals Resolution Officer Appeals Services Division