DECISION NUMBER: 20240035

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER

REPRESENTED by: EMPLOYER REPRESENTATIVE

HEARING: VIDEOCONFERENCE – APRIL 24, 2024

HEARD by: K. MACMILLAN, APPEALS RESOLUTION OFFICER

DATED: APRIL 30, 2024

ISSUES

The worker, through their representative, is objecting to the following:

1. The Eligibility Adjudicator’s decision letter of June 16, 2021 denying entitlement to loss of earnings (LOE) benefits from May 31, 2021 ongoing; and,

2. The Case Manager’s decision of May 11, 2023 denying entitlement to psychotraumatic disability benefits.

BACKGROUND

On May 28, 2021, the worker was in the course of employment operating a tow motor in a standing position when a forklift unexpectedly turned into their path. The worker continued working on May 29, 2021 and May 30, 2021 while developing symptoms in the right side of their back. On Monday, May 31, 2021, the worker was assessed by their family doctor, and started to lose time from work as they declined the employer’s written offer of modified duties. A Workplace Safety and Insurance Board (WSIB) decision letter dated June 7, 2021 allowed entitlement to health care benefits for multiple body areas.

The Eligibility Adjudicator’s decision letter of June 16, 2021 determined that suitable duties were available as of May 31, 2021. The worker completed an application for short term disability (STD) benefits on June 17, 2021. The worker returned to work on June 23, 2021. A reconsideration letter dated August 13, 2021 upheld initial entitlement to health care benefits for the chest, upper/lower back, abdomen, bilateral hips/thighs, left finger, and right lower leg sprain/strain injuries. The Case Manager’s decision letter of November 24, 2021 stated that ongoing entitlement was limited to the lower back sprain/strain injury and right hip contusion. A reconsideration letter dated September 19, 2022 upheld the denial of entitlement to LOE benefits from May 31, 2021 as suitable modified duties were available. A separate reconsideration letter dated September 22, 2022 denied entitlement to psychological treatment as healthcare for a non-work-related condition.

A prior Appeals Resolution Officer returned the worker’s objection to the Operating area on March 6, 2023 in order to determine entitlement to psychotraumatic disability prior to reconsidering entitlement to LOE benefits from May 31, 2021. The Case Manager’s decision letter of May 11, 2023 determined that the worker’s Major Depressive Disorder was not the result of an emotional reaction to the accident or injury. Instead, the Case Manager stated that the psychological condition was the result of a disagreement with the employer on how the accident occurred, and other non-work-related factors. The decision letter of October 18, 2023 denied entitlement to chronic mental stress (CMS) as the Case Manager was unable to establish that the worker was exposed to a substantial work-related stressor.

Entitlement to traumatic mental stress (TMS) was denied as the Case Manager determined that there was no evidence of workplace harassment or an objectively traumatic exposure independent of the worker’s personal feelings and emotions.

The administrative decision of February 23, 2024 authorized an oral hearing. A separate administrative letter dated March 5, 2024 confirmed that the oral hearing would be conducted as a videoconference. The worker’s objections are now before me.

PRELIMINARY DISCUSSION

During preliminary discussion the worker representative confirmed that the worker was withdrawing their objections to the following:

I. The Case Manager’s decision dated November 24, 2021 that maximum medical recovery (MMR) was reached with no ongoing impairment for the upper back, abdomen, left hip, left fingers, or right lower leg;

II. The Case Manager’s decision letter of February 10, 2023 determining that MMR was reached with no permanent impairment as of January 20, 2022 for the right hip and lower back;

III. The Case Manager’s decisions of October 22, 2021 and September 22, 2022 denying entitlement to psychological treatment as a health care benefit, including as a non-work-related condition; and,

IV. The Case Manager’s decision letter of October 18, 2023 denying entitlement to both TMS and CMS.

The hearing proceeded with the remaining issues of entitlement to LOE benefits from May 31, 2021 until the worker’s return to work on June 23, 2021, as well as entitlement to psychotraumatic disability.

AUTHORITY

Operational Policy Manual	Published
11-02-02 Lost Time Claims	April 9, 2021
15-04-02 Psychotraumatic Disability	September 7, 2018
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)	April 9, 2021
19-02-07 RTW Overview and Key Concepts	April 9, 2021

ANALYSIS

I find that full LOE benefits are in order from May 31, 2021 until the worker’s return to work on June 23, 2021. In addition, I find that entitlement to psychotraumatic disability is not in order. My reasons for these findings are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

All parties viewed the video footage of the incident of May 28, 2021 during the oral hearing.

Worker representative’s position

It is the worker representative’s position that the worker was medically unable to return to work prior to June 23, 2021. While the worker representative acknowledges that the employer has a very robust return-to-work (RTW) process, it is argued that the medical evidence supports the complete inability to work following the accident due to the effects of the injury.

With respect to psychotraumatic disability entitlement, the worker representative submits that the worker’s adverse psychological symptoms following the accident were attributable to the effects of the injury. In particular, the argument is presented that the psychotraumatic disability is an indirect result of the physical injury, as an emotional reaction to the accident or injury of May 28, 2021. The worker representative stresses that the worker is very clear in their testimony that it is all inter-related and originated with the forklift striking their tow motor which resulted in very significant symptoms. In the view of the worker representative, the anxiety, stress and strained relationship with the employer referenced within various medical reports in October 2021 and November 2021 all originated from the worker’s response to the accident itself.

Employer representative’s position

The employer representative presents that the employer’s initial concerns with the worker’s lost time and declining of modified duties were reasonable given that the worker continued to work and there was no medical documentation to establish the inability to return to some type of employment. Based on the employer’s knowledge at the time, the employer representative argues that it could not be reasonably believed that there was a disabling injury. However, in light the subsequent medical documentation, the employer representative states that it is reasonable to view there to be entitlement to LOE benefits.

Regarding the worker’s request for entitlement to psychotraumatic disability, the employer representative maintains that there was no indirect result of the physical injury but rather a disagreement over the accident details, their inability to RTW, the worker’s perception of how they were treated, and personal issues. The employer representative submits that the worker’s perception of the employer’s objection and questioning of entitlement to LOE benefits is the source of their stress. In the view of the employer representative, the worker’s stress was not due to the accident as the incident was minor, as shown by the video footage viewed during the oral hearing. The employer representative argues that the medical reporting shortly after the accident does not make any reference to the worker’s indication of being in shock and shaking at the time of the incident.

Worker’s testimony

It is the worker’s testimony they were operating a tow motor in a standing position and turned right when they noticed a forklift starting to turn towards them. The worker attempted to avoid a collision but was struck by the forklift and pushed a few feet to their right until the tow motor came to a stop. The worker explains that the standing (non-moving) weight for the tow motor is approximately 3,000 pounds (with battery), while the forklift is three times as heavy at a weight of approximately 9,000 pounds. The worker describes standing on the tow motor (which has no side protection) near the back which only has a back rest on top of a metal frame.

The worker indicates that forks of the forklift were less than four inches off the floor and appear to have impacted the tow motor on the lower side between the front and rear wheels. According to the worker the forks were low enough to not go on top of the tow motor’s platform and did not strike their body. It is the worker’s testimony that the driver of the forklift admitted being at fault and that the employer initially did not let the worker view the video footage. The worker expresses frustration that the employer did not send them to the Health Centre on the date of injury, or the following two days. As the worker was unable to move by Monday, May 31, 2021, they called their family doctor’s office. The worker points out that both the family doctor and treating physiotherapist agreed that they should not be at work. The worker explains that they felt forced to RTW on June 23, 2021 due to financial stress as both the WSIB and STD insurer denied entitlement to wage loss benefits.

Within testimony, the worker explains that the employer’s claims manager denied that the forklift struck the tow motor and that the worker had merely drove over the forks. The worker states that the claims manager stated that no one would be paying the worker for the lost time and was yelling and swearing at them over the phone. The worker describes approaching upper management, including the head of human resources and a vice-president, who confirmed that their job was not in jeopardy although they might have been fired if they were with another employer. The worker describes that they no longer trust the employer anymore and submits that the stress is caused by the workplace accident of May 28, 2021.

1) Was the worker able to perform the available duties prior to June 23, 2021?

It is my view that the worker did not have the functional abilities to return to any type of employment from May 31, 2021 until their modified/alternate RTW on June 23, 2021. Both representatives submit that entitlement to LOE benefits are in order for the requested period of 17 missed shifts. The worker explains that they reported increasing soreness to the employer on Saturday, May 29, 2021, although they were uncertain if it was from the accident or not.

I acknowledge that Policy 19-02-07, RTW Overview and Key Concepts, defines suitable work in part as post-injury work that is safe, productive, and consistent with the worker’s functional abilities. The term work is to be used broadly. The phrase productive work refers to work that consists of tasks that provide an objective benefit to the injury employer’s business and are performed for the worker’s entire work shift. Such tasks may form part of the employer’s regular business operation, increase business efficiency, or lead to business improvements. In this case, the written offer of modified duties dated May 31, 2021 confirms the availability of transportation (taxi services) and a company passenger shuttle from the security gate to the appropriate entrance. The specific modified duties listed on the offer include sedentary administrative duties, visual inspection, and inventory control.

That being said, Policy 11-02-02, Lost Time Claims, outlines that a worker may be entitled to LOE benefits if there is lost time from work due to the work-related injury. Policies 11-02-02 and 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), state that full LOE benefits may be paid if the work-related injury prevents the worker from performing any type of work.

In this case, the worker explains that their physical symptoms continued to increase to the point that they called their family doctor’s office on May 31, 2021. I am aware of the worker’s testimony explaining that sedentary modified administrative duties could be anything, including stapling, laminating, or printing. Even so, the worker notes that it would be 20-odd steps to the break room. Further, the worker indicates that visual inspection duties still require line-work. For context, the worker describes having to live on their couch post-injury as it is on the first floor of their home given that they were physically unable to use the stairs in their townhouse. The worker indicates that friends came over to help as a result of their inability to use the stairs within their home.

When reviewing the clinical evidence, I observe that the Health Professional’s Report of May 31, 2021 confirms that the worker is unable to resume either modified or regular duties and has been too sore to work since May 31, 2021. A clinical chart note dated June 1, 2021 states that the worker cannot work for now. The physiotherapist’s initial report of June 3, 2021 confirms the inability to perform either modified or regular duties. A Functional Abilities Form (FAF) completed by the family doctor on June 9, 2021 explains that the worker is unable to work as the soft tissue injuries (STI) have worsened with difficulty walking, limited mobility, and hardly being able to sit more than 15 minutes. The corresponding clinical chart note indicates that the worker is barely walking. The FAF of June 14, 2021 indicates once more that the worker is unable to work.

The next FAF dated June 16, 2021 clearly states that the worker was not and is not capable of returning to any modified work with restrictions. The FAF describes the inability to stand straight due to back pain and spasms, and that there are various myofascial pains and tightness preventing the ability to RTW. By June 22, 2021, the FAF and clinical chart note suggest the ability to attempt a modified work trial with restrictions. As mentioned above, the worker returned to some aspect of their accommodated pre-injury job on June 23, 2021.

For all of the above-noted reasons, I accept that the work-related injury completely prevented the return to any form of employment for the temporary period of May 31, 2021 to June 23, 2021, including the modified duties offered by the employer on May 31, 2021. Therefore, in keeping with Policies 11-02-02 and 18-03-02, I accept that entitlement to full LOE benefits is in order for this non-inclusive period as it is my view that the lost time is the result of the workplace injury.

2) Entitlement to psychotraumatic disability

I am not persuaded that entitlement to psychotraumatic disability is appropriate.

The worker representative maintains that entitlement is in order as a response to the injury and the subsequent interaction with the employer. The written submission of August 25, 2022 argues that the Specialty Program’s reports dated October 13, 2021 and October 29, 2021 clearly identify difficulties with anxiety and depression, and support that the psychological issues occurred due to the stress the worker experienced after the injury. The worker representative highlights the reports’ indication that the employer denied access to the video footage of the accident and maintained that there were witnesses who reported that the accident did not happen as the worker stated which caused the worker significant stress. The worker representative submits that any adverse psychological symptoms following the accident are clearly attributable to the effects of the injury.

In contrast, the employer representative argues that the accident was not traumatic and that the worker was upset that the employer challenged the mechanics of the accident. The employer representative stresses that there is no evidence of an emotional reaction to the accident or injury initially and submits that the sources of the worker’s stress relate to their concern with RTW discussions and being unable to view the video footage.

Policy 15-04-02, Psychotraumatic Disability, sets out the criteria for psychotraumatic disability entitlement as follows:

o An organic brain injury;

o An indirect result of the physical injury; and,

o Extended disablement resulting in psychotraumatic disability.

Policy outlines that it must be evident that the psychotraumatic disability diagnosis is attributable to the work-related injury or to a condition resulting from the work-related injury. There is general agreement that there is no work-related organic brain injury. Under the third potential criterion for entitlement, Policy 15-04-02 requires the psychotraumatic disability to be shown as being 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. In my view, there is insufficient evidence of an extended disablement resulting in psychotraumatic disability as the worker initially returned to some form of accommodated duties on June 23, 2021. Therefore, my review will focus on the remaining criterion listed under Policy 15-04-02.

Indirect result

I am aware that Policy 15-04-02 lists three potential factors to consider as a possible indirect result of a physical injury:

o An emotional reaction to the accident or injury;

o Severe physical disability/impairment; or

o A reaction to the treatment process.

In this case, I find that there is insufficient evidence of any adverse reaction to the treatment process or any severe physical injury resulting from the accident of May 28, 2021. The worker representative argues that the worker’s reaction to the accident itself is a significant contributing factor to the development of the psychotraumatic disability. The employer representative suggests that the worker’s perception does not reflect the reality of the facts.

I appreciate the worker’s detailed testimony that the employer immediately and continually denied that the accident happened and told the worker that no one would be paying them for their lost time. I recognize the worker’s indication that the employer’s claims manager swore at them over the phone and that upper management indicated that they might have been terminated if they were with another employer. I am aware that the worker stresses that the other employee admitted causing the accident. In reviewing the video footage with the worker during the hearing, I accept that the forks of the forklift struck the tow motor, pushing it to the worker’s left-hand side prior to the rear wheels driving over the forks. I am also aware of the worker’s testimony discussing what could have happened to them during this accident given the size difference between the two vehicles. I acknowledge the worker’s view that the employer repeatedly lied and incorrectly blamed them for the accident and for refusing to return to work.

Yet, I find it material to focus on what actually occurred and not what could have possibly happened. In other words, I accept that the forks were no more than four inches off the floor and the force of impact did not cause the worker to fall off the tow motor or tip the vehicle over. I find that there is no evidence to refute the employer representative’s assertion that neither the tow motor nor the forklift were taken out of commission. I observe that the clinical chart note dated June 1, 2021 indicates that the vehicles’ full speed is 12 to 14 kilometres per hour. While I am aware of the worker’s testimony that they were shocked and shaken at the time of injury, I must consider that they did not chose to go to the employer’s Health Centre even if the employer did not direct them to do so.

When reviewing the clinical evidence, I note that neither Health Professional’s Report dated May 31, 2021 nor the clinical chart note of June 1, 2021 identify any emotional reaction of shock. I recognize that the clinical chart note and FAF of June 9, 2021 reference nightmares; however, the clinical chart note outlines that the worker declined counselling for now. The STD medical application dated June 17, 2021 provides a secondary diagnosis of anxiety and nightmares post-accident. That being said, the clinical chart note of September 13, 2021 outlines that there has been stress from work as the employer is trying to throw the case out and will not show the worker the video footage. A clinical chart note dated September 30, 2021 indicates that the worker gets angry and upset prior to going into work at how they are treated. The clinical chart note documents that the worker still sees the accident, but is not nightmarish and has no panic attacks. The doctor indicates that the worker’s mental stresses are more obvious now and there is mild depression and severe-range anxiety.

The Back and Neck Specialty Program report dated October 13, 2021 documents that the worker followed-up with an occupational therapist (OT) at the workplace due to psychological issues that occurred after their injury due to the stress that they experienced once they resumed work. The doctor’s clinical chart note dated October 21, 2021 describes sleep issues, very high anxiety levels, and an increase in the worker’s Zoloft prescription. The Back and Neck Specialty Program report dated October 29, 2021 documents the worker’s concerns about their declining mental health status, as they are experiencing severe anxiety and depression. The Enhanced Functional Treatment (EFT) Program report of November 22, 2021 discusses significant strain of relationship with the employer who claims that the forklift did not hit the worker but that they only drove over the forks. The report indicates that the worker describes significant anxiety and stress related to communication with the employer and the management team as they feel that they are not being supported at all.

As referenced by the worker representative, the Back and Neck Specialty Program’s report dated November 22, 2021 documents that the worker feels that anxiety and stress-related symptoms are impacting them the most. The worker indicates there is a poor relationship with one of the senior managers who states that the accident did not happen the way that the worker describes it. The worker also describes that the employer declined access for them to review the camera footage and told the worker that witnesses state that the accident did not happen they way they describe it. According to the report, the worker indicates this puts significant stress on them daily and that they feel that the workplace has let them down. A clinical chart note dated November 25, 2021 describes anger and sleep issues with the worker waking up and thinking about the accident. The clinical chart note of December 20, 2021 similarly references the worker having a lot of anger and terrible sleep.

The Back and Neck Specialty Program’s EFT discharge report of January 20, 2022 reinforces that the worker feels their anxiety and stress-related symptoms are impacting them the most. The worker describes the poor relationship with the employer, the lack of access to the video footage, and the alleged witnesses who refute the worker’s version of the accident history. The report indicates that the worker has since been provided with the ability to view the video footage that they initially did not have access to review. The social worker/psychotherapist report of March 8, 2022 documents the worker’s attendance of sessions from February 9, 2022 to March 2, 2022. The report references the worker’s feelings of overwhelm and frustration with their perceptions regarding safety issues in the workplace that have gone unaddressed despite the worker raising concerns. The clinical chart note of May 31, 2022 continues to document mood and anxiety issues with a lot of anger.

The medical reporting from the Health Centre relating to treatment from July 6, 2022 into the month of September 2022 describes the worker seeking support to manage anxiety, anger and stressors in the workplace. The Health Centre report of November 15, 2022 documents an increase in symptoms of anxiety, anxiety attacks, and difficulties pertaining to anger management at work. The report outlines that the incident of May 2021 is difficult for the worker as they feel that they have not been supported by the employer or the WSIB since the accident. The report goes on to describe the worker’s difficulties since returning to work as they feel they are being targeted and were referred to the OT by the employer “out of nowhere”. I observe that the reports from the Health Centre document that the worker was referred for services by the employer.

The doctor’s note of November 17, 2022 recommends time off of work due to mental health issues while a clinical chart note of the same date records the results of testing for depression and anxiety. The clinical chart note indicates that the third session with the therapist was a disaster as the worker felt upset that the counsellor tried to tie everything back to the non-work-related motor vehicle accident of 1989 as opposed to the forklift accident. Within testimony, the worker explains that they changed counsellors as the therapist pretty much blamed everything on cannabis. The worker describes being prescribed cannabis several years prior to the workplace accident because of a motor vehicle accident in 1989 in which they almost lost their right foot.

Even so, the worker’s testimony confirms that it was the head of human resources at the employer who offered a meeting to talk about Health Centre’s eight-session program which they subsequently accepted. In any event, the worker testifies that the flashbacks are of the forklift incident and not the motor vehicle accident of 1989. Within testimony, the worker describes nightmares, sweating, poor sleep, worrying that their job is in jeopardy for standing up for themselves, and sometimes self-medicating. Finally, I recognize that the clinical chart note of February 9, 2023 documents that a manager has been giving the worker a hard time and started asking personal questions.

To summarize, I appreciate the worker’s nightmares, sweats, anxiety and depression subsequent to the workplace accident of May 28, 2021. All the same, I find that the worker’s emotional reaction is in relation to their perception of what might have occurred, not the actual mechanism of injury shown on the video footage. I acknowledge that the employer initially refuted the worker’s statement that there had been impact between the two vehicles and that the tow motor had simply driven over the forks. Regardless, I find that the significant contributing factors relating the worker’s psychological condition consist of the disagreement between the parties regarding the accident details, the alleged refusal to permit the worker to initially have access to the video footage, and the employer’s questioning of the worker’s level of impairment.

In my view, these differences in opinions between the worker and the employer do not satisfy the policy requirement of the emotional reaction being the result of the accident or injury. In addition, I accept that it was the employer who referred the worker to both the company OT and the Health Centre program for support considering their stress reaction arising from their perception of how they were being treated.

Accordingly, I find that entitlement to a psychotraumatic disability as an indirect reaction to the physical injury is not in order under Policy 15-04-02 as I am not persuaded that there is sufficient evidence of an emotional reaction to the actual workplace accident or resulting injury.

CONCLUSION

I conclude the following:

1. The worker is entitled to full loss of earnings (LOE) benefits from May 31, 2021 until their return to modified pre-injury duties on June 23, 2021.

2. Entitlement to psychotraumatic disability benefits is not in order.

The worker’s objection is allowed in part.

DATED April 30, 2024

K. MacMillan Appeals Resolution Officer Appeals Services Division