Worker v. Employer, 2024 CanLII 64299

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20240049

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER

REPRESENTED by: EMPLOYER REPRESENTATIVE

HEARING: TELECONFERENCE – JUNE 17, 2024

HEARD by: S. JOHNSON, appeals resolution officer

DATED: june 25, 2024

ISSUES

The worker objects to:

1. The Case Manager’s decision letter dated October 19, 2023 that denied entitlement to a psychotraumatic disability.

2. The Case Manager’s decision letter dated January 19, 2024 that concluded:

(a) The worker is partially disabled and fit to return to modified work duties to accommodate the functional restrictions for their right shoulder impairment.

(b) The employer’s modified work duties are suitable and within the functional restrictions for the worker’s right shoulder impairment.

(c) Entitlement to loss of earnings (LOE) benefits beyond November 10, 2023 is denied.

BACKGROUND

On June 9, 2021, this personal support worker reported to their employer with complaints of a gradual onset of right shoulder pain they attributed to an increase in workload. In medical reports dated June 8, 2021 and June 9, 2021, the rheumatologist provided the diagnosis of a right shoulder tendonitis with probable adhesive capsulitis.

The Eligibility Adjudicator allowed initial entitlement to a right shoulder tendonitis injury and authorized full LOE benefits from June 9, 2021 to June 21, 2021.

In a decision letter dated July 15, 2021, the Eligibility Adjudicator denied entitlement to the diagnosis of probable adhesive capsulitis because there was no medical evidence to support this diagnosis. In this decision letter, the Eligibility Adjudicator denied entitlement to LOE benefits beyond June 21, 2021 because the employer offered suitable modified work duties to accommodate the worker’s right shoulder impairment.

In a decision letter dated April 19, 2022, the Case Manager denied ongoing entitlement to benefits and services for a right shoulder impairment and upheld the decision to deny entitlement to the diagnosis of right shoulder adhesive capsulitis. The worker objected to this decision at the Appeals Services Division.

In a decision dated December 12, 2022, the Appeals Resolution Officer allowed the worker’s objection and granted entitlement to the diagnosis of right adhesive capsulitis and ongoing entitlement to benefits for the right shoulder tendonitis impairment beyond March 4, 2022 because the medical evidence did not support the worker reached maximum medical recovery. The Appeals Resolution Officer remitted the worker’s entitlement to LOE benefits beyond June 21, 2021 to the Case Manager for review and adjudication.

Following the release of the Appeals Resolution Officer’s decision dated December 12, 2022, the Case Manager authorized full LOE benefits from June 22, 2021 to November 5, 2021 because the worker was totally disabled and unfit to return to any type of work due to their right shoulder impairment.

In a decision letter dated February 22, 2023, the Case Manager denied entitlement to LOE benefits beyond November 5, 2021 because it was concluded the worker was partially disabled and fit to return to the employer’s modified work duties.

The worker claimed entitlement to a left shoulder tendonitis injury as a secondary condition due to overuse because of their right shoulder impairment. Entitlement to a left shoulder tendonitis injury was denied in the Case Manager’s decision letter dated April 12, 2023 and in the Appeals Resolution Officer’s decision dated September 14, 2023 either as arising from the original disablement history dating back to June 9, 2021 or as a secondary condition due to overuse.

In a letter dated June 13, 2023, the psychologist requested funding for a WSIB Community Mental Health Assessment Program (CMHP) initial assessment. In the WSIB CMHP Assessment Form dated June 16, 2023, the psychologist provided the DSM-5 Axis I diagnoses of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Pain Disorder Associated with Both Psychological Factors and General Medical Condition.

During the continuity period from June 9, 2021 to August 21, 2023, the worker participated in active medical treatment programs that included cortisone injections into the right shoulder, physiotherapy, chiropractic and evaluation by the orthopaedic specialist at Hospital X Upper Extremity Clinic. The worker’s right shoulder symptoms did not significantly improve to the extent the Case Manager initiated a referral to the WSIB Upper Extremity Specialty Clinic to assist with the worker’s recovery and return-to-work outcomes. In the WSIB Upper Extremity Specialty Clinic Comprehensive Assessment Report dated August 21, 2023, the orthopaedic surgeon recommended psychotherapy for the worker’s symptoms of depression and anxiety, a second right shoulder MRI, physiotherapy and an enhanced functional treatment program.

During the continuity period from September 29, 2023 to December 19, 2023, the worker participated in the WSIB Upper Extremity Specialty Clinic Functional Treatment Program that included regular follow-up appointments with the pain management specialist and orthopaedic surgeon. In the WSIB Upper Extremity Specialty Clinic Report dated April 22, 2024, the orthopaedic surgeon documented the worker is scheduled for right shoulder rotator cuff repair on June 6, 2024 in the community. A decision on entitlement to the right shoulder surgery remains outstanding with the Case Manager for review and adjudication.

In a decision letter dated October 19, 2023, the Case Manager denied entitlement to a psychotraumatic disability because it was concluded the worker’s Adjustment Disorder with Mixed Anxiety and Depressed Mood was not related to the workplace injury.

In a decision letter dated January 19, 2024, the Case Manager reached the following conclusions:

• The worker is partially disabled and fit to return to modified work duties to accommodate the functional restrictions for their right shoulder impairment.

• The employer’s modified work duties are suitable and within the functional restrictions for the worker’s right shoulder impairment.

• Entitlement to LOE benefits beyond November 10, 2023 is denied because the worker is partially disabled and fit to return to the employer’s modified work duties that are suitable and within the worker’s functional restrictions for their right arm impairment.

These are the issues for my review and determination.

PRELIMINARY ORAL HEARING MATTER

In preliminary oral hearing discussions, the worker representative submits the correct recurrence date is October 27, 2023. I noted this discrepancy can be clarified through chief examination under oath without the need for a closing submission or formal argument.

On direct questioning, the worker could not recall the exact date they stopped working in October 2023. My examination of the case record notes this issue continues to remain unresolved because the employer reported the worker last worked on November 13, 2023 yet they only worked a few days after they returned to work and missed time from work for several reasons such as the flu and lower back pain. In a decision letter dated January 19, 2024, the Case Manager documented the employer reported the worker stopped working on November 10, 2023.

Despite the worker’s viva voce evidence under oath at this telephone conference oral hearing, the discrepancy regarding the worker’s last day worked in October/November 2023 continues to remain unresolved. I remit this issue to the Case Manager to request the employer’s payroll record information and absence summary report to confirm the worker’s last day worked in October/November 2023 for file correctness and completeness.

AUTHORITY

Operational Policy Manual	Published
15-02-05 Recurrences	April 9, 2021
15-04-02 Psychotraumatic Disability	September 7, 2018
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)	September 1, 2021
19-02-07 RTW Overview and Key Concepts	April 9, 2021

ANALYSIS

I have carefully considered all the available information, legislation, relevant operational policies and the worker’s evidence under oath at this teleconference oral hearing in reaching this decision.

1. Entitlement to Psychotraumatic Disability

I find initial entitlement to a temporary psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood is allowed.

The Operational Policy Manual (OPM) Document No. 15-04-02 – Psychotraumatic Disability – states 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.

This policy goes on to state 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.

In opening and closing submissions, both the worker and employer representatives did not dispute the first and second criteria in the OPM Document No. 15-04-02 – Psychotraumatic Disability – have not been met because the worker did not sustain an organic brain injury arising from the work incident of June 8, 2021 and the worker’s anxiety and depression did not develop because of an emotional reaction to the accident or injury, a severe physical disability/impairment or reaction to the treatment process. There is no need to examine this issue further.

The issue to be resolved is whether the worker’s anxiety and depression 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 right shoulder injury set out in the third criterion in the OPM Document No. 15-04-02 – Psychotraumatic Disability.

Worker Representative Submission

The worker representative relied on the worker’s viva voce evidence at this teleconference oral hearing in support of the position their anxiety and depression are related to extended disablement and to non-medical, socioeconomic factors that are related to their right shoulder injury. The worker’s right shoulder injury caused them to withdraw from their work, family and social life.

In support of this position, the worker representative relied on the WSIB CMHP Assessment Form dated June 16, 2023. In this report, the psychologist provided the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. In a medical report dated November 24, 2023, the physician also confirms the diagnosis of anxiety and depression.

It was pointed out the worker was ingesting medications concurrent with their right shoulder illness. The worker was unable to access psychological treatment because the WSIB denied funding and they could not afford to pay for the treatment.

Employer Representative Submission

The employer representative does not dispute this worker experiences right shoulder pain. Where the employer representative disagrees is there is no causal connection between the worker’s psychotraumatic disability and their right shoulder injury.

The employer representative highlighted the physiotherapist’s medical report dated August 21, 2021 that documented the worker needed psychological counselling. This is only two months after the work incident of June 8, 2021. The medical evidence documented to the case record also supports the presence of a left shoulder injury for which entitlement was denied in the Appeals Resolution Officer’s decision dated September 14, 2023. The predominant cause for the worker’s financial stress is because they did not receive entitlement to WSIB benefits. There is no doubt this would create financial stress, yet the employer has provided the worker with the opportunity for a return to suitable work.

Based on the above, the employer representative contends the third criterion in the OPM Document No. 15-04-02 – Psychotraumatic Disability – has not been met because a causal connection does not exist between the work-related right shoulder injury and the development of a psychological condition.

Findings

I first examined the worker’s evidence under oath at this teleconference oral hearing regarding the onset of their anxiety and depression symptoms. The worker testified they first developed sleeping issues due to the right shoulder pain following the cortisone injections in 2021. They described they were not sleeping and crying all the time. They do not want to get up, they are unable to concentrate and they feel useless because of their right shoulder pain. They are unable to do housework (cooking, cleaning and laundry) or take care of themselves. Their daughter helps with showering, dressing, grooming hair and donning shoes. The worker lives at home with their husband and daughter. Their daughter helps with all personal grooming chores while their husband does all the household chores.

The worker described their relationship with family members changed. Their daughter loses their temper and, at times, yells. The worker stays quiet because they do not want their daughter to complain. The worker’s husband simply ignores the worker. Despite these challenges, the worker noted both their daughter and husband are patient. The worker has no relationship with their son since the work incident. The worker’s son and children live in the Country X. Prior to the work accident, the worker financially supported their son and family. Since the worker stopped sending money because they are not working, their son has stopped talking and blocked the worker from all social media. This strained relationship continues to date.

The worker stopped seeing family members, they stopped socializing with their in-laws and stopped attending parties. The worker just wants to be left alone now and expressed no interest to socialize because they are in pain all the time, they feel hopeless and depressed. Their right shoulder pain increases the desire to be left alone. They used to live a happy life jogging, camping, meeting with friends and going out with family. The worker described a good and happy relationship with their co-workers at work and outside of work. The worker would go out with their co-workers after a work shift to have a snack, dessert, order food and socialize. This all stopped as the worker just wants to be left alone. They expressed feeling bad they cannot see their co-workers anymore.

On direct questioning about returning to work, the worker stated they wish they were able to do their pre-injury job because they love helping the elderly. They also expressed a willingness to try to return to work yet they do not know if they are able to and scared their right shoulder condition will worsen. The worker expressed fears of returning to work because it might make their right shoulder worse.

They described having problems with the left shoulder at the same time they started having problems with the right shoulder back in June 2021. They began using the left shoulder more than the right and started to have problems with the left.

Their family physician prescribed medications (Duloxetine) for their anxiety and depression symptoms for the past two years. The worker was unable to recall the exact date or time they started taking the medications. They eventually saw a psychologist on June 16, 2023 who advised the anxiety and depression is from the right shoulder injury. The worker has not received any psychological treatment after this initial visit because they could not afford to pay for the treatment sessions. On direct questioning about accessing employer benefits for psychological treatment, the worker stated they did not enquire with their benefit plan because they could not navigate the system online and they were closed by the time their daughter came home.

The worker’s evidence is consistent with the contemporaneous medical evidence that supports their anxiety and depression symptoms gradually emerged as an extended disablement directly attributable to their work-related right shoulder injury and resulting impact on personal, social and economic factors. In reaching this finding, I relied on the following medical evidence:

• In the Shoulder Program of Care Initial Assessment Report dated July 13, 2021, the chiropractor documented the worker is having difficulties sleeping and performing housekeeping activities due to the right shoulder pain and has been prescribed medications.

• In the Chiropractor’s Treatment Extension Request form dated August 31, 2021, the chiropractor documented factors delaying the worker’s recovery from their right shoulder rotator cuff injury include psychosocial stress, the chronicity of the complaint and a secondary complaint of associated neck pain.

• In the Shoulder Program of Care & Outcomes Summary Report dated August 31, 2021, the physiotherapist opined there are psychosocial barriers and yellow flags delaying and hindering recovery from the right shoulder injury and the worker would benefit from psychological counselling which has already been recommended by the employer which has yet to be scheduled.

• In a medical report dated May 2, 2023, the physician provided a copy of their clinic chart notes (35 pages) dating back to June 16, 2021 about the worker’s office visits. The physician documented the worker’s feeling of rejection because of their ongoing pain and disability from the frozen shoulders gradually increased their stress, distress and depression. The physician prescribed Cymbalta for the combined benefit of pain control and, to some extent, its anti-depressant benefits.

• In the WSIB CMHP Assessment Form dated June 16, 2023, the psychologist provided the DSM-5 diagnostic label of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

The physician’s clinic chart notes dating back to June 16, 2021 are illegible. I note in the clinic visit on December 20, 2022, the physician documented the worker’s medications for their right shoulder injury included Cymbalta. I accept the physician’s medical evidence as it is the best evidence that I have before me that supports the worker’s anxiety and depression symptoms first emerged following the work incident of June 8, 2021. The physician had the opportunity to see the worker at regular follow-up visits, obtain their history of complaints and symptoms, and record the information based on the facts and circumstances of the worker’s situation at each clinic visit. Despite the clinic notes being largely illegible, in the medical report dated May 2, 2023, the physician documented the worker was prescribed Cymbalta for the combined benefit of pain control and, to some extent, an anti-depressant. The physician’s summary of the worker’s treatment is based on their examination of the clinic chart notes dating back to June 16, 2021.

I acknowledge the employer representative’s concerns the worker’s anxiety and depression symptoms manifested approximately two months after the work incident of June 8, 2021. To the extent the worker’s symptoms of anxiety and depression first manifested as disturbed sleep within a short time after the work incident of June 2021 is not justification to support the denial of initial entitlement to a temporary psychotraumatic disability. In reconciling this issue, I relied on the worker’s evidence that confirmed they were never treated in the past by a psychologist or a psychiatrist, they never ingested medications for a psychological condition and they were never hospitalized due to a psychological or psychiatric problem.

The worker’s evidence is consistent with the medical evidence regarding the absence of a prior history of psychological problems. In support of this finding, I relied on the physician’s clinic chart notes dating back to June 4, 2017. In my examination of this evidence, I note the worker was not seen or treated in medical attention for a psychological condition. There is no other valid reliable medical evidence to rebut this finding.

I considered the employer representative’s position this worker’s case is complex and their psychological symptoms are attributable to other factors that include not getting paid by the WSIB and a non-work-related left shoulder problem. The employer representative does not dispute the worker has right shoulder pain. Where the employer representative disagrees is the worker’s psychological symptoms are not clearly and directly related to the work-related right shoulder injury and emerged because of other non-work-related matters (financial distress and a left shoulder problem).

There is no dispute the worker’s inability to provide financial support to their son and grandchildren and the development of left shoulder problems are factors that contributed to the worker’s psychological symptoms. It is instructive the significant contributing factor that led to the manifestation of psychological symptoms requiring medication was the work-related right shoulder injury. This fact is not in dispute and reflected in the contemporaneous medical evidence documented to the case record and previously summarized on page seven of this decision. While I do not discount the contribution of the discord between the worker and their relationship with their son, I accept the worker’s evidence that described their relationship was fine prior to the work incident of June 8, 2021. I also accept this relationship deteriorated after the worker was no longer able to provide financial support due to their lack of income brought on by the work accident. Even if the worker’s relationship with their son was contributing to the worker’s psychological distress, I find this alone does not disentitle them from entitlement to a psychotraumatic disability.

I am persuaded by the worker’s evidence most of their psychological symptoms are clearly and directly related to the work-related right shoulder injury. Their anxiety and depression symptoms emerged with disturbed sleep within a short period following the work incident of June 8, 2021 and progressed to include a sense of hopelessness, rejection, stress, distress, loss of concentration, impaired social relationships with family and friends and inability to participate in regular activities of daily living and independent activities of daily living. The physician prescribed Cymbalta based on the combined effects to help with the worker’s right shoulder symptoms and anti-depressant benefits. I also recognize the worker is suffering from a non-work-related left shoulder condition that is contributing to their anxiety and depression symptoms. I am satisfied the work-related right shoulder injury is the significant contributing factor that led to the development of the worker’s psychological symptoms.

I note a worker does not need to demonstrate the work-related injury or disease was the sole contributing factor that led to the development of psychological problems. It is enough to show that the work-related right shoulder injury contributed significantly to the development of psychological symptoms regardless of the existence of other factors which might have also made a material contribution. I find this condition has been met.

I find this worker did nothing more than they could have done by receiving medical treatment from their physician for their psychological symptoms and prescribed medications that were designed to treat their work-related right shoulder symptoms and anti-depressant. The trajectory of the worker’s psychological symptoms continued to evolve with the lack of any success with conservative medical treatment plans for the right shoulder injury. In coming to this conclusion, I relied on the following medical evidence:

• In the WSIB Upper Extremity Specialty Program Comprehensive Assessment Report dated August 21, 2023 and Follow-Up Report dated October 27, 2023, the orthopaedic surgeon documented the worker’s right shoulder condition has obviously affected their mood and resulted in significant anxiety. There is significant evidence within the current orthopaedic literature to suggest that treatment of the psychological issues such as depression and anxiety in conjunction with treatment for rotator cuff pathology will have a significant impact on function and pain relief. The psychological component is a significant potential barrier to the worker’s recovery and they would benefit from the recommended cognitive behavioural techniques for psychotherapy treatment to help improve overall recovery. The worker needs to be engaged in the WSIB mental health team and seen by the chronic pain specialist to improve musculoskeletal function in the right shoulder.

• In the WSIB Upper Extremity Pain Management Specialist Assessment Report dated March 3, 2024, the pain management specialist documented the worker’s high levels of anxiety and depression puts them at risk for poor surgical outcomes. The pain management specialist did not make additional medication recommendations as the worker had a moderate effect with Cymbalta and Amitriptyline. There is a significant psychosocial overlay with this injury and the worker would benefit from psychological interventions.

• In the WSIB Upper Extremity Specialty Program Follow-Up Assessment Report dated April 22, 2024, the orthopaedic surgeon advocated for the inclusion of mental health services following the worker’s right shoulder surgery booked for June 6, 2024 to optimize surgical outcomes.

I had the benefit of this worker’s testimony under oath at this telephone conference oral hearing that described the legacy of mental health challenges they experienced after the work incident and resulting work-related right shoulder injury. With the benefit of retroactive adjudication, it is clear the worker’s treatment for their anxiety and depression symptoms was limited to the use of prescribed medications. Despite the orthopaedic surgeon’s clinical recommendations for the worker to engage with the WSIB mental health team to improve musculoskeletal function in the right shoulder, the WSIB denied funding for these services.

There has been no other valid, cogent reliable evidence submitted to the case record to suggest the worker’s anxiety and depression manifested from something other than an extended disablement due to their work-related right shoulder injury because of the work incident of June 8, 2021.

I considered the employer representative’s submission the Appeals Resolution Officer’s decision dated December 12, 2022 did not catch the presence of a right shoulder tear before the work incident on June 8, 2021. I have no jurisdiction to consider any argument on this issue because I am bound by the findings documented in the Appeals Resolution Officer’s decision dated December 12, 2022 that allowed entitlement to the worker’s right shoulder rotator cuff tendinitis and adhesive capsulitis as a secondary condition because of the tendinitis. In this decision, the Appeals Resolution Officer carefully examined the worker’s pre-accident details and found their prior history of right shoulder adhesive capsulitis resolved in 2020 and there was no evidence to support the worker had ongoing discomfort or issues preventing them from doing their regular duties. It was noted the worker did not have functional limitation for their right shoulder until June 2021 based on their heavy duties and significantly extended hours in addition to all pandemic protocols.

I find the worker has initial entitlement to a temporary psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood as the threshold criterion in the OPM Document No. 15-04-02 – Psychotraumatic Disability – has been established. The weight of the contemporaneous medical evidence supports the worker’s anxiety and depression is related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related right shoulder injury.

I direct the Case Manager to re-refer the worker back to WSIB CMHP to receive the recommended cognitive behavioural treatment and counselling for their anxiety and depression symptoms. I also direct the Case Manager to review and monitor the worker’s recovery outcome from their DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

2. (a) Entitlement to Recurrence October/November 2023

With the expansion of entitlement to include a temporary psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, I find entitlement to the recurrence of October/November 2023 is denied because the worker remained partially disabled with no evidence to support a significant deterioration.

The OPM Document No. 15-02-05 – Recurrences – states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:

• does not result from a significant new incident/exposure, and
• is clinically compatible with the original injury/disease.

This policy states if the significant deterioration results from a significant new incident/exposure (work-related or not) a recurrence is not considered. Instead, if the significant new incident/exposure is work-related, a new claim is considered.

If the significant deterioration occurs when there is no new incident/exposure or results from an insignificant new incident/exposure (work-related or not) a recurrence is considered.

A significant new incident/exposure is one of some consequence or importance (e.g., falling from a ladder). An insignificant new incident/exposure is one of negligible consequence or importance (e.g., reaching for an object on a shelf).

A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings.

Worker Representative Submission

The worker representative submits the worker is totally disabled and unfit to return to any type of work due to their work-related right shoulder and psychotraumatic impairments. In support of this position, the worker representative relied on the medical evidence that supports a decline in the worker’s right shoulder functional abilities. In a medical report dated November 24, 2023, the physician medically authorized the worker to be off from work due to their right shoulder, anxiety and depression.

The medical evidence supports the worker experienced a significant deterioration in their work-related right shoulder impairment that rendered them totally disabled according to the threshold criteria in the OPM Document No. 15-02-05 – Recurrences.

Employer Representative Submission

The employer representative rebuts the worker representative’s position and contends there is nothing to suggest this worker was totally disabled and unfit to return to any type of work beyond October/November 2023.

Since November 2021, the worker’s physician medically cleared a return to suitable work duties to accommodate the functional restrictions for their right shoulder impairment. The employer has continued to engage in return-to-work planning activities filed in the vocational reporting documents in the case record.

The physician’s medical note dated November 24, 2023 does not provide any clinical objective evidence to support the worker was incapable of returning to any type of work other than pain in both shoulders, anxiety and depression.

The employer representative submits the absence of clinical objective findings does not support the worker experienced a significant deterioration in their right shoulder impairment.

Findings

There is no dispute the first criterion in the OPM Document No. 15-02-05 – Recurrences – has been established. The worker’s right shoulder pain and symptoms in October/November 2023 did not result from a significant new incident or exposure of some consequence or importance. In reaching this finding, I relied on the worker’s testimony that confirmed nothing new happened and they were attending physiotherapy and participating in the graduated return-to-work plan. The worker described they did not feel ready to return to any type of work at all and experienced increased right shoulder pain that increased their anxiety and depression symptoms.

The issue to be resolved is whether the worker experienced a marked degree of deterioration in their work-related right shoulder impairment that is demonstrated by a measurable change in the clinical findings. The leading argument put forth by the worker representative is the worker experienced a measurable change in their right shoulder functional abilities and decreased abilities beyond October 27, 2023. These changes increased the worker’s anxiety and depression to the extent they were incapable of remaining at work. The employer representative submits there is no clinical objective medical evidence to support the worker experienced a significant deterioration in their work-related right shoulder impairment that prevented them from participating in the graduated return-to-work plan.

I accord the greatest amount of weight to the contemporaneous medical evidence both before and after October 27, 2023 that supports the worker did not experience a significant deterioration in their work-related right shoulder impairment. The weight of this medical evidence supports the worker continued to remain partially disabled and fit to perform modified work duties to accommodate the functional restrictions for their work-related right shoulder impairment. In support of this finding, I relied on the following medical evidence:

• In the WSIB Upper Extremity Specialty Program Comprehensive Assessment Report dated August 21, 2023, the specialist opined the worker can work within the limited/sedentary strength classification if the employer can provide such duties. The worker’s restrictions include full abilities to walk, stand, sit and stair climb, limited lifting (floor to waist, waist to shoulder and above shoulder), limited pushing and pulling, no ladder climbing, able to drive a car, able to use public transportation, avoid bending, twisting and repetitive movements of the right shoulder, limit carrying, no above chest level work and avoid repetitive use of the right arm away from the body. The specialist recommended the worker attend a more active and aggressive form of physiotherapy treatments combined with occupational therapy work hardening strategies while they participate in return-to-work planning activities.

• In the WSIB Upper Extremity Specialty Program Follow-Up Report dated October 27, 2023, the specialist opined the worker is at a level of partial functional recovery and will likely require some degree of permanent partial work restrictions. The specialist changed the worker’s restrictions based on their increased subjective complaints of right shoulder pain and recommended the worker be able to change positions, alternate work tasks and take microbreaks as needed. The work restrictions are to remain in place until seen in follow-up and their abilities and restrictions may be progressed by the treating therapists as tolerances improve. The specialist recommended Return-to-Work Services intervention to assist with the worker’s current modified duties to ensure they are not worsening the non-work-related complaints of left arm symptoms.

• In the WSIB Upper Extremity Specialty Program Report dated December 12, 2023, the pain management specialist concluded the worker is doing well with conservative measures including physiotherapy. Medication recommendations were made to address the worker’s sleep issues. The pain management specialist did not change the worker’s functional abilities, treatment plan and only made clinical recommendations to change medications. The pain management specialist suggested suprascapular nerve blocks if the worker elects not to undergo surgery. The assessment and findings at the time of this clinic visit did not have any impact on the worker’s functional abilities.

• In the WSIB Upper Extremity Specialty Program Functional Treatment Progress Report dated December 19, 2023, the physiotherapist and occupational therapist discharged the worker to a home exercise program with the same functional restrictions detailed in the previous report.

• In the WSIB Upper Extremity Specialty Program Report dated March 13, 2024, the pain management specialist documented the worker continues to experience a moderate effect with the use of Cymbalta and Amitriptyline so no medication adjustment was necessary. No changes to the current treatment plan were recommended, no additional pain management was planned at that time and the assessment and findings have no impact on the worker’s functional abilities. The pain management specialist discharged the worker back to the care of the specialist at the WSIB Upper Extremity Specialty Program noting they are undergoing surgical intervention in the community.

• In the WSIB Upper Extremity Specialty Program Follow-Up Report dated April 22, 2024, the specialist documented the worker has consented to right shoulder rotator cuff repair with a shoulder surgeon in the community and, in the interim, the worker should have ongoing therapy partial work restrictions until the surgery date. The worker demonstrated significant improvement in the right shoulder region following clinical examination. The worker is suitable to return to modified work duties if the employer has work available. The specialist did not alter the functional restrictions and confirmed they remain in order up to the surgery date.

There is nothing in the clinical objective medical evidence before and after October 27, 2023 to suggest the worker was totally disabled and unfit to return to any type of work due to their right shoulder impairment. I acknowledge the worker’s functional restrictions on October 27, 2023 were amended to reflect no lifting with the right arm. Despite this minor change, I find it does not rise to the level of a marked degree of deterioration in the worker’s right shoulder impairment rendering them incapable of returning to any type of work. In all the WSIB Upper Extremity Specialty Program Reports submitted to the case record during the continuity period from August 21, 2023 to April 22, 2024, none of the medical experts expressed a medical opinion to suggest the worker was totally disabled due to their right shoulder impairment. In all the reports, the specialist, physiotherapist and occupational therapist consistently opined the worker was partially disabled and fit to return to modified work duties within the functional restrictions for their right shoulder impairment.

I find it significant the worker experienced an overall improvement in their right shoulder impairment during the period they participated in the WSIB Upper Extremity Functional Treatment Program from September 29, 2023 to December 15, 2023. In coming to this conclusion, I completed a comparative analysis of the clinical objective findings on physical examination of the worker’s right shoulder region summarized below:

Right Shoulder Movement	September 29, 2023	October 27, 2023	November 17, 2023	December 15, 2023
Flexion	20/40	30/45	70	80/90
Extension	10	N/A	15	25
Abduction	40/40	45/60	55	75/80
External Rotation	10/20	15/45	25	30/60
Hand Behind Back	Lateral Thigh	N/A	Lateral Thigh	Lateral Thigh

The physiotherapist and occupational therapist opined the worker presented with some further internal improvement in right shoulder ranges of motion at the time they were discharged from the program on December 19, 2023 with no improvement in strength since they started the program. The worker’s overall function continued to be complicated by left shoulder pain for which there is no WSIB entitlement. The worker achieved all treatment goals in active ranges of motion in the right shoulder region except for flexion which the worker demonstrated 90 degrees of right shoulder passive range of motion (80 degrees on active range of motion).

With the expansion of entitlement to include a psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, there is no dispute the worker’s treatment was administered by the physician and pain management specialist at the WSIB Upper Extremity Specialty Clinic because of the lack of WSIB funding for psychological treatment. I find it significant at the time of the WSIB CMHP Assessment Form dated June 16, 2023, the psychologist noted the worker was well dressed and appropriately groomed, they did not display any cognitive limitation and no signs of self-neglect. The worker maintained good eye contact, speech was clear and they had no difficulty generating thoughts and associations were organized with no tangential thinking observed. The Beck Anxiety Inventory (BAI) and Beck Depression Inventory-II (BD-II) scores were both in the average range. The worker expressed concerns about the employer not being able to find a suitable job and feels abandoned and neglected. They also worry about the family’s financial situation. In my view, there is nothing in the overall clinical subjective and objective findings to suggest the worker’s average anxiety and depression symptoms rendered them completely unable to work. I note the psychologist opined the worker’s pain symptoms prevented a return to safe and sustainable occupational function. I am unable to accept this opinion as the psychologist did not have the opportunity to review the medical evidence and opinions from the team of medical experts at the WSIB Upper Extremity Specialty Program who continued to support the worker was partially disabled and fit to return to suitable work duties to accommodate the right shoulder impairment.

I also note the psychologist’s opinions regarding the worker’s mental stress due to the employer’s inability to provide suitable work is limited and based on an inaccurate understanding of the facts and circumstances regarding the employer’s efforts to provide the worker with a return to suitable work duties. There is nothing documented to the case record to suggest this employer abandoned and neglected this worker.

There is also nothing in the pain management specialist’s reports dated December 12, 2023 and March 13, 2024 to suggest the worker’s pain symptoms required any changes to the current treatment plan and the assessment and findings at each clinic visit had no impact on the worker’s functional abilities. No changes were made to the medication recommendations because the Cymbalta and Amitriptyline have had a moderate effect on the worker’s symptoms. The pain management specialist concluded the worker demonstrated a level of partial functional recovery. Clinical examination of the right shoulder on December 12, 2023 and March 13, 2024 demonstrated no changes summarized below:

• No obvious swelling, edema, atrophy or deformity.
• Slight pain to palpation throughout the long head of the biceps with pain on palpation throughout the entirety of the shoulder girdle in keeping with myofascial pain.
• Active right shoulder flexion and abduction to approximately 90 degrees.
• Passive right shoulder forward flexion to 140 degrees.
• Passive right shoulder abduction to 110 degrees.
• Full active and passive external rotation.

I did not overlook the physician’s scant medical report dated November 24, 2023 that documented the worker was unable to work due to anxiety, depression and pain in both shoulders. I am unable to accord any weight to this medical report as it is limited and lacks any clinical objective medical evidence to support a marked degree of deterioration in the worker’s right shoulder impairment that is demonstrated by a measurable change in the clinical findings. I prefer the comprehensive medical reports prepared by the team of experts at the WSIB Upper Extremity Specialty Program from August 21, 2023 to April 22, 2024 previously summarized on pages 12 to 13 of this decision. During this period, the team of medical experts had the opportunity to conduct extensive interviews with the worker, obtain their current history of complaints and symptoms, examine the right shoulder region and document the information. The reports are accurate, balanced and based on a complete understanding of the facts and circumstances of this worker’s case at each clinic follow-up.

Based on the above, I find entitlement to the recurrence of October/November 2023 is denied because the threshold criterion in the OPM Document No. 15-02-05 – Recurrences – has not been established. The weight of the clinical objective medical evidence does not support a marked degree of deterioration in the worker’s right shoulder and psychological impairments.

(b) Suitability of Modified Work

I find the employer’s modified work duties are suitable for the worker’s right shoulder impairment and temporary psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

The OPM Document 19-02-07 – RTW Overview and Key Concepts – provides the definition of suitable work as post-injury work that is safe, productive, consistent with the worker’s functional abilities, and that restores the worker’s pre-injury earnings, to the greatest extent possible.

Worker Representative Submission

The worker representative submits the employer’s modified work duties are unsuitable because they were not within the worker’s functional abilities. The worker representative relied on the worker’s viva voce evidence at this teleconference oral hearing about the description of the modified work duties that caused them to stop working.

Employer Representative Submission

The employer representative relied on the return-to-work planning activities with the worker, the employer and the Return-to-Work Specialist that supports the modified work duties were suitable and within the worker’s functional abilities and restrictions for their right shoulder impairment. The worker had a full understanding of the work duties. While the worker testified about their desire to return to work with the employer, they did not express this same desire while engaged with the employer and the Return-to-Work Specialist in developing an appropriate modified work plan to accommodate their functional restrictions.

Findings

I first examined the worker’s evidence under oath regarding the nature and characteristics of the modified work duties they performed in 2023 summarized below:

• The worker confirmed the information documented in the Return-to-Work Specialist’s report dated September 2, 2023 is accurate about the number of potential modified work duties available with the employer.
• They clearly remembered their restrictions included no lifting, no pulling, no pushing and no bending and these restrictions really did not change since February 2023.
• They only performed training on the computer and assisting co-workers to feed residents in the dining area at breakfast and lunch.
• They rotated from sitting at a computer watching training information on YYY and then answering questions to going to the dining area to help feed the residents during the breakfast and lunch hours.
• They were using their non-dominant left hand and arm to feed the residents.
• The worker would sit down in a chair to feed the residents.
• They were not using the right arm at all as it was in a brace/sling and kept close to their side/body. They described this was like a protective device to keep the shoulder from getting worse.

I find there is not a discrepancy between the worker’s evidence and the employer’s evidence regarding the nature and characteristics of the modified work duties. In reaching this finding, I relied on the Return-to-Work Specialist’s Meeting/Memo Report dated October 16, 2023. In this report, an onsite meeting took place at the employer’s site with the worker, the worker representative, the union, the employer and their representative, the Return-to-Work Specialist, Office Manager, Director of Care and Health and Safety Manager. The Return-to-Work Specialist concluded the worker will return to exclusively performing light non-essential duties working with higher functioning residents and complete outstanding YYY training and learning modules. The work can be done safely as the forces are negligible and the worker can alternate between sitting and standing.

I find the employer’s modified work duties feeding the higher functioning residents, watching virtual training sessions on YYY and answering questions are within the worker’s functional abilities and restrictions for their right shoulder impairment. These duties involved no use of the right hand and arm regions. If there were some aspects of the modified work duties the worker had difficulties with, I am of the view this employer would make the necessary changes to remove any deficits or barriers in the worker’s return-to-work activities. The worker is familiar with the employer’s business operations. They have been employed with this employer for 17 years as a full-time personal support worker. They described they love helping the residents and they have a supportive work environment with their co-workers. The worker also placed the right shoulder in a brace/sling and did not use the right arm at all while at work. The work does not involve any repetitive, sustained, forceful or heavy lifting, bending, pushing and pulling. The forces are negligible to alternate tasks from feeding residents at breakfast and lunch and performing the computer training YYY modules.

I note the worker would not be feeding high functioning residents in a long-term care facility at breakfast and lunch using the left hand and arm on a continuous, uninterrupted and repetitive basis. The worker would have the opportunity to rest at frequent intervals to ensure the resident safely chews and swallows the food items. There is also the opportunity to change body positions frequently throughout the workday from sitting to standing to walking. The work duties do not pose a health or safety risk to the worker or to their co-workers.

I acknowledged the worker’s expressed concerns the modified work duties were unsuitable because of their chronic right shoulder pain. I accept that change is difficult and while I am empathetic to this position, I am unable to accept this in support of the modified work duties being unsuitable. In my view, I find this worker was provided with the opportunity to manage this change in a structured return-to-work plan performing exclusively light non-essential duties working with higher functioning residents and some virtual training and learning modules. It is clear the worker took the position they are totally disabled and unable to return to work in any capacity and expressed concerns about being forced to return to work at the time of the onsite return-to-work meeting on October 12, 2023. I find the worker would have found success in their graduated return-to-work plan duties working in a supportive environment with long-time co-workers and performing the work they described made them happy for the 17 years they worked with this employer.

The worker representative pointed out the worker’s inability to drive due to fears associated with their right shoulder impairment as a factor for consideration of their ability to return to work. In reconciling this issue, I relied on the worker’s evidence. On direct questioning, the worker confirmed they use the train and public transportation to independently travel to attend their medical appointments. The worker’s evidence is consistent with the case evidence. In the Worker’s Travel Expense Forms from September 29, 2023 to April 22, 2024, the worker was reimbursed travel expenses to use public transportation to travel to their medical appointments at the WSIB Upper Extremity Specialty Program and the Hospital Z WCP Specialty Program. The worker did not testify or provide any additional information to suggest they had difficulties using public transportation to travel to and from their medical appointments due to their right shoulder impairment, anxiety or depression symptoms.

I conclude the threshold criteria in the OPM Document No. 19-02-07 – RTW Overview and Key Concepts – has been established to support the employer’s modified work duties are suitable because they are safe, productive, consistent with the worker’s functional abilities, and that restores the worker’s pre-injury earnings.

(c) Entitlement to LOE Benefits

I find entitlement to the payment of LOE benefits beyond the worker’s last date worked in October/November 2023 (exact date unknown) is denied.

The OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – states 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.

In denying entitlement to LOE benefits beyond October/November 2023, I have already reached the following conclusions:

• The worker is not totally disabled and unable to return to any type of work beyond October/November 2023 due to their right shoulder impairment and anxiety and depression symptoms.
• The worker did not experience a significant deterioration in their right shoulder impairment and anxiety and depression symptoms beyond October/November 2023.
• The worker is partially disabled and fit to return to suitable modified work duties to accommodate their right shoulder impairment functional abilities and restrictions and anxiety and depression symptoms.
• The employer’s modified work duties are suitable.

Based on the above, the threshold criteria in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – have not been met and the request for entitlement to LOE benefits beyond the worker’s last date worked in October/November 2023 cannot advance.

CONCLUSION

I conclude:

1. Entitlement to a temporary psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood is allowed.

2. (a) Entitlement to the recurrence in October/November 2023 (exact date unknown) is denied.

(b) The employer’s modified work duties are suitable for the worker’s right shoulder impairment and psychotraumatic disability.

(d) Entitlement to LOE benefits beyond the worker’s last date worked in October/November 2023 (exact date unknown) is denied.

I direct the Case Manager to:

1. Contact the employer to obtain the payroll information and time sheets to confirm the correct date of the worker’s last day worked in October/November 2023 for file completeness.

2. Re-refer the worker to WSIB CMHP to provide them with the appropriate psychological treatment to assist with their recovery outcomes from their temporary psychotraumatic disability for the DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

3. Review and monitor the worker’s recovery from their psychotraumatic disability including the outstanding issues of maximum psychological recovery and whether a permanent impairment is evident with the submission of updated medical evidence outlining their progress with treatment. Communicate the results of this review to all workplace parties, subject to the usual right of appeal.

The worker’s objection is allowed in part.

DATED June 25, 2024

S. Johnson Appeals Resolution Officer Appeals Services Division