APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240053
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEOCONFERENCE – june 11, 2024
HEARD by:
d. bowker, appeals resolution officer
ADDITIONAL ATTENDEES:
interpreter
JULY 9, 2024
ISSUES
The worker is appealing the following decisions:
The case manager’s March 19, 2020, decision to deny entitlement to loss of earnings (LOE) benefits from March 4, 2020, onward.
The non-economic loss (NEL) clinical specialist’s June 29, 2023, decision the worker was entitled to a 10% benefit rating for chronic pain disorder.
The employer is appealing the following decisions:
The case manager’s August 6, 2021, decision to grant entitlement to psychotraumatic disability.
The case manager’s June 7, 2023, decision to grant entitlement to chronic pain disability.
BACKGROUND
On April 3, 2019, this warehouse worker was lifting a 16-inch by 16-inch box weighing approximately 30-50 pounds from a conveyor belt onto a skid when they felt sudden pain in their right shoulder. This claim was established for upper back, neck, and right shoulder sprain/strain injuries. Entitlement to low back, right arm, right elbow, and right forearm injuries was denied.
The eligibility adjudicator granted entitlement to LOE benefits from April 4 to 26, 2019, and denied entitlement to LOE benefits from April 27, 2019, onward as the eligibility adjudicator determined the worker was partially impaired and suitable work to accommodate the worker was offered by the employer.
The workplace parties met with the return to work specialist to develop a plan for the worker to return to work in July 2019. The worker was continuing to follow the plan in March 2020 when they reported an increase in pain that led them to stop working. The case manager’s March 19, 2020, decision denied entitlement to LOE benefits from March 4, 2020, onward as the case manager determined the worker remained partially impaired and the modified duties continued to remain suitable for the worker.
The worker did not make a complete recovery from their right shoulder injury and the case manager determined they required permanent functional limitations to accommodate their right shoulder injury. The worker subsequently received a 2% NEL benefit rating.
The worker was diagnosed with adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder with predominant pain. The worker representative requested entitlement under the psychotraumatic disability policy. The case manager granted entitlement to psychotraumatic disability for the worker’s mixed anxiety and depressed mood and denied concurrent entitlement under the chronic pain disability policy for the somatic symptom disorder with predominant pain on August 6, 2021.
On October 28, 2022, the case manager determined the worker reached maximum medical recovery from their psychological condition on January 10, 2022, as the worker’s ongoing psychological impairment was caused by non-work-related reasons.
The case manager granted entitlement to chronic pain disability on June 7, 2023, and confirmed the worker remained capable of working within the permanent functional restrictions for their shoulder. The case manager further confirmed the worker was permanently impaired and entitled to a non-economic loss assessment.
On June 20, 2023, the NEL clinical specialist determined a Class 2- 10% impairment best described the worker’s condition after reviewing the worker’s activities of daily living, social functioning, concentration, persistence and pace, and adaption to stress. The worker’s prior 2% organic NEL rating for their right shoulder was inactivated and replaced by the 10% chronic pain disability rating.
The objection to these decisions forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
18-05-03 Determining the Degree of Permanent Impairment
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
15-04-03 Chronic Pain Disability
15-04-02 Psychotraumatic Disability
January 2, 2018
December 1, 2012
January 2, 2015
November 3, 2013
July 18, 2008
September 7, 2018
September 7, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find partially in favour of the worker. Specifically, I find the worker is entitled to LOE benefits from March 4 to July 23, 2020, and partial LOE benefits from July 24, 2020, onward based on the graduated return to work plan developed by the Upper Extremity Specialty Program.
I find there is no change to the worker’s NEL quantum.
I find partially in favour of the employer. Specifically, I find the worker does not have entitlement to psychotraumatic disability as their chronic pain is a direct result of somatic symptom disorder with predominant pain and therefore the worker has entitlement to chronic pain disability only.
The Worker’s Objections
Worker Position and Remedy Sought
The worker representative is seeking entitlement to LOE benefits from March 4, 2020, onward and a NEL quantum reflective of a Class 3 rating for CPD.
The worker representative submits the clinical evidence has not been weighed properly and the worker is entitled to LOE benefits as their lost time was related to their chronic pain. The representative further submits the worker’s NEL quantum should be increased.
The representative submits the May 17, 2020, Upper Extremity Specialty Clinic report noted the worker had an increase of pain after lifting heavy boxes at work in March 2020 and provided restrictions limiting the use of the right arm, lifting and overhead work. The representative notes additional treatment was recommended before a return to work could occur.
The worker representative further submits the May 21, 2021, and December 2021 psychological reports did not recommend a return to work due to the severity of the worker’s psychological symptoms. The representative notes the worker was experiencing interrupted sleep, pain, decreased mood, and impaired appetite and concentration.
The worker representative submits the claim file information, and the worker testimony are clear the worker was unable to do their regular job and was under the care of a psychologist.
The representative submits the NEL quantum should be class 3, 30-35% due to the severity of the worker’s depression and impact on their social activities and their ability to return to work.
Employer Position and Remedy Sought
The employer representative is seeking maintenance of the previous decisions.
The employer representative submits more weight should be afforded to the Upper Extremity Specialty Clinic assessments than the opinion of the worker’s family physician as these assessments were conducted by specialists with detailed restrictions for return to work.
The employer representative submits the NEL quantum is correct and as the worker does not meet the requirements for Class 3, the Class 2 categorization of 5-15% is correct.
The representative notes the December 28, 2020, and the January 28, 2021, Upper Extremity Specialty Program Psychological Assessment reports recommended the worker return to work with limitations for their psychological condition.
The employer representative agrees there was a supervisor who treated the worker unfairly in March 2020. The representative submits the employer continued to offer modified duties and had demonstrated a pattern of accommodating the worker prior to March 2020.
The representative submits the NEL quantum is correct as the worker’s testimony does not demonstrate they met the requirements of a Class 3 rating.
Entitlement to LOE March 2020 onward
Following my review of the claim file and policies 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review), 19-02-01 Work Reintegration Principles, Concepts and Definitions, and 19-02-02 Responsibilities of the Workplace Parties in Work Reintegration, I find the worker is entitled to full LOE benefits from March 4 to July 23, 2020, and partial LOE benefits from July 24, 2020, onward with the duration to be based on the graduated return to work plan developed by the Upper Extremity Specialty Program.
WSIB policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states workers are generally entitled to full LOE benefits if:
the nature or seriousness of the injury completely prevents them from returning to any type of work, or
if they are able to return to some form of work but the WSIB determines no suitable work is available.
Policy 19-02-01, Work Reintegration Principles, Concepts and Definitions defines suitable work as post-injury work (including the worker’s pre-injury job) that is safe, productive, and consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
Policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration encourages the workplace parties to resolve disputes regarding the suitability of work through their own efforts or initiatives. When this does not occur, the WSIB can assist the workplace parties to reach agreement or can make a determination as to whether or not the offered work is suitable.
In cases where the workplace parties cannot agree on whether an offered job is suitable, whether the worker has attempted to perform the offered job or not, the following steps should take place whenever reasonably possible:
The worker notifies the employer that the offered job is not suitable and provides reasons,
The employer considers the reasons, and through dialogue with the worker, considers further accommodations if appropriate,
In the event that agreement cannot be achieved, both workplace parties promptly notify the WSIB and provide all information relevant to the dispute, e.g., job descriptions, physical demands analyses, and/or functional abilities information.
It is evident from the case record and their testimony the worker was experiencing difficulties with their return to work plan in March 2020. I note the worker notified both the employer and the WSIB that their supervisor was directing them to perform work beyond their functional limitations. The worker did not receive any assistance with or resolution to the concerns they expressed from either their employer or the WSIB.
By way of background, the worker testified their pre-injury job duties with the employer consisted of scanning items. They worked on a line, scanning boxes and items that needed to be sent to various locations. The worker stated they scanned boxes and stacked them onto a skid. The worker stated they wore a 3-pound scanner on their wrist and the weight of the boxes varied from 1-2 pounds to above 55 pounds.
The worker testified they originally participated in a return to work meeting prior to their July 15, 2019, return to modified duties. The worker stated after approximately two months, they began to have issues with their supervisor directing them to do duties that were not part of the return to work plan.
The worker confirmed they had a meeting with the human resources department and their supervisor but stated they felt their supervisor was fixated on the worker doing the job duties the supervisor wanted them to do and the supervisor overthrew all the decisions made in the return to work meeting. The worker testified they did speak to the human resources contact but there was no resolution. The worker noted they felt so overwhelmed by their pain and frustration with the job duties they were being directed to complete by the supervisor.
I note that according to the return to work plan developed by the workplace parties on January 15, 2020, the worker’s physical limitations were based on the January 7, 2020, Occupational Health Assessment Program follow-up assessment. The worker was directed to gradually increase their lifting and carrying from less than 5 kilograms to 20 kilograms over a 12-week period. The worker was directed to take microbreaks as needed and limit repetitive overhead tasks and overhead reaching.
I further note that during the week of March 6, 2020, the worker was expected to exert less than 10 kilograms of force for up to 33% of their shift doing alternate job duties as an x-wing worker and auditor. This work involved scanning lightweight envelopes and placing in bags or scanning packages on skids to ensure accuracy.
The worker testified their supervisor continued to tell the worker they had to do the work they were directed by the supervisor to perform. The worker confirmed the duties they were doing in March 2020 were the same as their regular job duties they were performing prior to their injury.
The worker testified they were moved to the conveyor job, scanning items and the worker reported they could not pick up the boxes but were directed by their supervisor to continue with this work. The worker stated they picked up a heavy box on March 3, 2020, and they experienced immediate pain following this incident. The worker noted their pain escalated to a 10 out of 10 after this.
The worker confirmed they had spoken to their supervisor about their difficulties with the work they were being asked to perform and they were told they had to continue with the work. After their pain increased when they picked up the box on March 3, 2020, they took a break and took some medication before leaving work for the day.
On March 16, 2020, the worker advised the return to work specialist they were working on March 3 when their supervisor asked them to work outside of their functional limitations. Specifically, the worker described repetitively taking mail out of bins and putting it into bags for over a 3- or 4-hour period and experiencing a pulling sensation in their right shoulder.
The worker described being moved to an area with heavy work and being mocked when they requested accommodation. The worker stated their supervisor directed them to work on a conveyor and they were lifting more than 40 pounds at a time.
The worker explained they stopped working on March 4, 2020, and saw their physician for their increased pain. The worker described weakness in their arm, interrupted sleep, and an inability to lift with their right arm.
The Upper Extremity Specialty Program treatment report completed on March 16, 2020, by the physiotherapist treating the worker in the Enhanced Functional Treatment Program noted the worker had completed one blook of treatment on an inconsistent basis and their progress to date had been minimal as they were reporting pain post-treatment and pain after work.
The physiotherapist noted the worker was not tolerating their graduated return to work plan and had contacted the WSIB return to work specialist to discuss potentially modifying the return to work plan. A referral for a comprehensive assessment in the Upper Extremity Specialty Program was recommended considering the worker’s limited progress and their difficulty with the return to work plan.
The worker reported they were being asked to work beyond their abilities and they did not feel comfortable going into work. The worker presented with regressed range of motion in their shoulder and sub-maximal effort on clinical tests secondary to reported pain. The worker was also demonstrating limited functional tolerances secondary to right arm pain.
The physiotherapist recommended amending the worker’s return to work plan to include the following functional limitations:
Bilateral carry up to 10 pounds
Unilateral carry: limit use of right arm/no restrictions to left arm
Limit pushing and pulling to less than 10 pounds of force
No lifting above shoulder level
Non-repetitive lifting to floor up to 5 pounds
No sustained or repetitive overhead or above shoulder work
I am persuaded the worker experienced a deterioration in their right shoulder injury that led to a change in their functional abilities because the worker was being asked to do work that was not suitable for their right shoulder injury. I note the worker has consistently provided the same explanation that they experienced an increase in shoulder pain after being directed to perform job duties outside of the return to work plan.
I note that in addition to advising the employer of their concerns with the work they were being asked to perform, the worker also contacted the WSIB for assistance. I further note that a dispute over job suitability is not an act of non-co-operation.
In a conversation with the return to work specialist on April 16, 2020, the worker stated they did not feel they could work due to their pain, regardless of what accommodation was offered to them. The return to work specialist noted the worker’s functional abilities had changed and if the employer was able to offer the worker modified duties within their precautions, the return to work specialist would advise the worker of the start date these duties were available.
On April 16, 2020, the employer representative advised the return to work specialist the worker could be accommodated with the same auditing duties that involved micro-breaks as needed and self-pacing. The employer confirmed this work continued to remain available to the worker.
I note there was no further contact between the return to work specialist and the worker and there was no return to work meeting. A closure letter was sent to the worker on April 24, 2020, confirming the modified duties within the worker’s functional abilities continued to be available to the worker and as the worker was not participating, additional return to work services were not required.
In my view, although the employer confirmed they could continue to accommodate the worker, the worker’s concerns with the suitability of the work were not addressed. As the worker’s functional abilities had now changed and there was evidence of a strained relationship between the worker and their supervisor, the previous modified duties were no longer suitable for the worker and the worker’s concerns about the suitability of the job duties should have been further addressed.
I therefore find the worker is entitled to LOE benefits as per policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) as the worker was able to return to some form of work but no suitable work was available to them.
Having made this determination, the issue before me is now the duration of the worker’s entitlement to LOE benefits.
The May 21, 2020, Upper Extremity Specialty Program Functional Treatment Program report continued to recommend the same functional limitations for the worker as the March 16, 2020, assessment. The case manager communicated these restrictions in correspondence to the employer dated May 29, 2020.
On June 29, 2020, the employer sent the worker an offer of modified duties sanitizing, scanning lightweight envelopes, and placing in bags, scanning packages on skids to ensure accuracy and duties known as 5S activities. The employer confirmed the worker would be paid their full wages for the hours they worked.
The case manager spoke to the employer representative on July 16, 2020, confirming the worker had not returned to modified duties. There was no contact made with the worker or their representative and no offer of a return to work meeting.
The worker was seen in the Upper Extremity Speciality Program on July 17, 2020. The assessors recommended 12 weeks of in-person functional physiotherapy and a graduated return work, starting at 4 hours per day, 5 days per week with increases of one hour every 2 weeks until the worker achieved their regular work hours. The worker continued to have limitations of lifting to 10 pounds, no forceful exertion, pushing, pulling, or reaching with the right upper extremity, and no sustained cervical postures.
The case manager spoke to the worker representative on July 23, 2020, and confirmed the recommendations from the Specialty Program and asked if the worker was willing to participate in a return to work plan. The worker representative agreed to speak to the worker and follow up with the case manager. I note there is no further documentation confirming the representative followed up with the case manager.
The case manager also sent the employer the recommendations from the Upper Extremity Specialty Program in correspondence dated July 23, 2020.
Policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration confirms the workplace parties must co-operate with each other and the WSIB in the return to work process by initiating early contact, maintaining appropriate communication throughout the worker’s recovery, identifying and securing return to work opportunities for the worker, giving the WSIB all relevant information concerning the worker’s work reintegration and notifying the WSIB or any dispute or disagreement concerning the worker’s work reintegration.
I find the worker is entitled to full LOE benefits up to July 23, 2020. I have determined this date as this is when both workplace parties were contacted to discuss the recommendations for return to work made by the Upper Extremity Specialty Program. It is reasonable that having been advised of these recommendations on July 17, 2020, the worker would be prepared to return to work shortly thereafter. The modified duties offered by the employer on June 29, 2020, appear suitable for the restrictions outlined in the July 17, 2020, report.
The modified duties of sanitizing, scanning lightweight envelopes, and placing in bags, scanning packages on skids to ensure accuracy and duties known as 5S activities offered to the worker on June 29, 2020, appear suitable for the worker as they did not involve lifting over 10 pounds, forceful exertion, pushing, pulling, reaching with the right upper extremity, or sustained cervical postures.
I am unable to establish the worker communicated with the employer or the WSIB following the new offer of modified work on June 29, 2020, or after the follow-up assessment in the Upper Extremity Specialty Program on July 17, 2020, as per their co-operation obligations in policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration.
While I am aware the worker’s previous concerns about their supervisor remained unaddressed, there is also no evidence before me to support the worker was co-operating with either the employer or the WSIB in the return to work process in July 2020.
As I have determined there was suitable work available to the worker, I therefore find the worker is entitled to partial LOE benefits as per policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) from July 24, 2020, onward based on the graduated return to work plan recommended by the Upper Extremity Specialty Program.
I remit this decision to the operating area to determine the nature and duration of the LOE benefits.
NEL Quantum
After my review of the available claim file evidence, the submissions from the worker and policies 18-05-03 Determining the Degree of Permanent Impairment and 18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders, I find there in no change to the worker’s NEL quantum.
WSIB policy 18-05-03 Determining the Degree of Permanent Impairment states a worker who has a work-related permanent impairment is entitled to a non-economic loss (NEL) benefit based on the degree of their work-related permanent impairment determined by the decision-maker.
According to WSIB policy 18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural
Disorders, Class 2, Mild Impairment (5-15%) on the Mental and Behavioural Disorders Rating Scale involves:
a degree of impairment of complex integrated cerebral functions, but the worker remains able to carry out most activities of daily living as well as before.
There is also some loss in personal or social efficacy and the secondary psychogenic aggravations are caused by the emotional impact of the accident.
There is mild to moderate emotional disturbance under ordinary stress.
A mild anxiety reaction may be apparent. The display of symptoms indicates a form of restlessness, some degree of subjective uneasiness, and tension caused by anxiety. There are subjective limitations in functioning as a result of the emotional impact of the accident.
A Class 3, Moderate Impairment (20-45%) involves:
a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction.
There is a mild to moderate disturbance under stress, a mild, episodic anxiety state, agitation with fear of re-injury and nurturing of strong passive dependence tendencies.
In the lower range of impairment, the worker is still capable of looking after personal needs in the home environment but with time, confidence diminishes and the worker becomes more dependent on family members in all activities.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family.
In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration and longer episodes of depression. The worker tends to withdraw from family, develops severe noise intolerance and significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations and every day activities restricted to such an extend the worker may be homebound or even room bound at frequent intervals.
The assessment of permanent impairment for mental and behavioural disorders assesses the severity of the worker’s impairment in terms of how it limits their activities of daily living, social functioning, concentration, persistence and pace, and adaptive functioning in response to stressful circumstances.
The case manager determined the worker reached maximum medical recovery on December 18, 2020. The NEL clinical specialist determined a 10% impairment best described the worker’s impairment for chronic pain disability based on their review of psychiatrist Dr. Vasdev’s October 20, 2020, assessment, the December 18, 2020, Upper Extremity Specialty Program follow-up assessment and the January 28, 2021, Upper Extremity Specialty Program Psychology assessment report.
The clinical specialist determined a Class 2- 10% impairment rating best described the worker’s condition based upon the following:
Concentration, persistence, and pace: the clinical specialist noted the worker reported concentration difficulties but there were no reports documenting the worker was unable to complete activities of daily living from a cognitive perspective. Additionally, there were no impairments in attention, concentration, focus, or memory noted during formal assessments.
Activities of daily living: the clinical specialist documented worker reports of anger and irritability, low energy, and occasional sadness and tearfulness. The worker reported difficulty maintaining sleep due to pain, and pain aggravated with activities that require lifting or pushing and pulling. The worker indicated their pain was worse in the morning with intermittent numbness and tingling in the right hand with limited range of motion of the affected extremity. The clinical specialist noted the reporting supported the worker required assistance with basic (hair care) and instrumental activities (household chores) of daily living due to pain. The worker could complete activities such as light cooking and light home exercises recommended by rehabilitation providers.
Social functioning: the worker indicated they were less socially engaged and less interested in activities and events, preferring ‘peace and quiet.’ The NEL clinical specialist noted there were no reports indicating the worker was unable to communicate or interact with others on a social level.
Adaptive functioning in response to stressful circumstances: the worker reported some anxiety but no other symptoms such as panic, nightmares, intrusive thoughts, and there was no reported impact on activities of daily living as a result.
The clinical specialist determined the worker did not fall into a higher range of impairment as there were no reports to suggest that the worker required supervision or direction with activities from a cognitive perspective, or had issues with memory, judgement, planning and organizing activities.
The clinical specialist noted the worker was not reported to require assistance from others to complete all activities of daily living and the worker was able to interact with others on a social level efficiently. There were no limitations in functioning noted in the reporting because of anxiety and no reports of difficulties with appetite, psychomotor slowing or agitation, or noise intolerance.
The worker testified they have severe right shoulder and hand pain, difficulty sleeping at night, and this is causing them memory difficulties and depression. The worker noted their concentration is also impacted. The worker stated their sleep is interrupted and they slept for a maximum of 3-4 hours per night. The worker confirmed they had tried different medications to help their sleep, and this was continuing to be reviewed by their physician.
The worker testified their relationships with their family and friends has been impacted by their injury. They described being irritable, easily angered and not wanting to remain in contact with others. They felt this was a change from their pre-injury relationships.
The worker stated they had difficulties with activities of daily living. They confirmed their mother assisted them with dressing and combing their hair. They note they now wear oversized clothes as this is easier for them. The worker testified they did not perform cooking or cleaning activities as they can barely take care of themselves. They described difficulties holding a cup of tea and noted even this was done with two hands to accommodate their right-hand injury.
The worker testified activities that caused them pain included any activity that involved moving their right hand. When their pain increased, they stated they took medication, including ibuprofen and Tylenol 3 for pain relief.
As the worker has submitted they should receive a Class 3, Moderate Impairment rating, I will now compare the clinical evidence with the required rating criteria of Class 2 and Class 3 with respect to reports used to determine the worker’s NEL rating. I note a worker is placed within a Class by determining which of the descriptive paragraphs in the Rating Scale most closely resemble the worker’s condition but there is no expectation of a perfect fit in that placement process.
The clinical reports from the time of maximum recovery refers to Dr. Vasdev’s October 20, 2020, report, the December 18, 2020, Upper Extremity Specialty Program assessment and the January 28, 2021, Upper Extremity Specialty Program Psychology Assessment report.
Class 2 Mild Impairment
Class 3 Moderate Impairment
Clinical reports at the time of maximum medical recovery
There is a degree of impairment of complex integrated cerebral functions, but the worker remains able to carry out most activities of daily living
There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction.
No impairments in attention, concentration, focus, or memory noted by Dr. Vasdev, worker described impaired concentration at the January 28, 2021, assessment. Assistance with personal care routine and contributions to housekeeping limited to light cooking. Physical activity limited to a regime of light home exercises
Some loss in personal or social efficacy and secondary psychogenic aggravations are caused by the emotional impact of the accident
In the lower range of impairment, the worker is still capable of looking after personal needs in the home environment but with time, confidence diminishes, and the worker becomes more dependent on family members in all activities.
Decreased libido and sexual activity due to pain interference, persistent subjective pain. Worker reports being less active with their children, less socially engaged and less interested in activities and events.
Mild to moderate disturbance under ordinary stress.
There is a mild to moderate disturbance under stress, a mild, episodic anxiety state, agitation with fear of re-injury and nurturing of strong passive dependence tendencies.
Reported feeling distressed and agitated, borderline tearful at times while describing the impact of the injury. More easily prone to tears and worries about the Covid-19 pandemic.
Mild anxiety reaction may be apparent with symptoms indicating a form of restlessness, some degree of subjective uneasiness and tension caused by anxiety
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family.
Reported their mood was agitated, conveyed a pervasive emotional malaise. No indications of anxiety or panic. The worker presented with some nervousness and worry
Subjective limitations in functioning as a result of the emotional impact of the accident
In the higher range of impairment, withdrawal from family, develops severe noise intolerance and significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations and every day activities restricted to such an extend the worker may be homebound or even roombound at frequent intervals.
Difficulty maintaining sleep at night and often awoken by pain, napping during the day to compensate. The worker presented with significant current emotional distress manifesting in a variety of cognitive, emotional, and somatic symptoms and complaints.
I note the January 28, 2021, psychological assessment indicated any difficulties the worker experienced in relation to concentration and attention to detail, memory, judgement and responsibility, problem solving, persistence and stamina, flexibility and adaptation, ability to work independently were secondary to sleep disturbance, fatigue, and pain distraction.
I am not persuaded the worker meets the criteria for a Class 3, Moderate Impairment rating. While the worker testified they require supervision and direction to complete activities, this is not indicated in the clinical evidence at the time the worker reached maximum medical recovery. There is also no indication the worker is experiencing emotional withdrawal, mild psychomotor retardation, severe noise intolerance, bizarre or avoidant behaviour or that they are now homebound to warrant consideration of a Class 3 rating.
For these reasons, I am not persuaded the worker’s psychological impairment should be rated within the Class 3, Moderate Impairment category. I am also not persuaded the NEL rating is incorrect and should be adjusted.
I find this rating was appropriately calculated as the impact of the worker’s chronic pain disability was assessed through the impact on the worker’s limitations with regards to activities of daily living, social functioning, concentration, persistence and pace, and adaptation to stress. There is no indication in the contemporaneous clinical evidence at the time of maximum medical recovery the worker’s impairment would warrant a higher rating within Class 2.
While I note the worker gave testimony indicating they did not perform any cooking or cleaning activities and were more reliant on their mother for assistance, this was not indicated in the evidence at the time the worker reached maximum medical recovery. It is possible the worker has had a deterioration since these reports. As there has been no decision from the operating area regarding a deterioration in the worker’s permanent impairment, I make no findings in this regard.
I therefore find there is no change to the worker’s NEL quantum as I am not persuaded the worker meets the criteria for an increased rating in Class 2 or that their symptoms should be rated in Class 3.
The Employer’s Objections
Employer Position and Remedy Sought
The employer representative is seeking the denial to both psychotraumatic and chronic pain disability in this claim.
The representative submits the worker’s diagnosed psychological impairment is a continuation from their 2016 motor vehicle accident and the 2020 and 2021 psychological diagnoses are related to their pre-existing psychological condition. The representative notes the employer has received 90% cost relief in recognition of this pre-existing condition.
The employer representative submits the worker’s chronic pain was not caused by the work-related accident and notes the January 28, 2021, Upper Extremity Specialty Program psychological assessment stated the work injury may have exacerbated the worker’s motor vehicle injuries.
The representative further notes the worker felt depressed, sad, and irritable for two years after their motor vehicle accident and did not return to work for 3 years, suggesting the worker has a psychological condition unrelated to their workplace injury.
The employer representative submits the 2% non-economic loss benefit for the worker’s organic right shoulder injury was appropriate as there is no entitlement to either a psychotraumatic or a chronic pain disability in this claim.
Worker Position and Remedy Sought
The worker representative is seeking maintenance of the entitlement decisions.
The worker representative submits that while the worker had psychological treatment following their motor vehicle accident, this treatment ended in 2018 and they did not seek any further psychological treatment until 2021.
The representative notes the worker’s psychotraumatic and chronic pain disabilities have been well-documented in the reports from the Upper Extremity Specialty Program and there are clinical opinions linking the worker’s psychological condition and their chronic pain to their workplace injury.
Entitlement to CPD and Psychotraumatic Disability
Based on my review of the claim file and policies 15-04-03 Chronic Pain Disability and 15-04-02 Psychotraumatic Disability, I am persuaded the worker does not have entitlement to psychotraumatic disability. I find the worker’s entitlement is most appropriately captured under the chronic pain disability policy.
Policy 15-04-03 Chronic Pain Disability directs the WSIB to accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability.
If pain is predominantly attributable to an organic cause, the worker will be compensated pursuant to the WSIB’s policy on that organic condition. If, however, the chronic pain arises predominantly from psychological sources other than posttraumatic stress disorder or conversation disorder, or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy.
The policy specifically states cases where an individual is diagnosed with somatic symptom disorder with predominant pain in accordance with the Diagnostic and Statistical Manual of Mental Disorders are considered for entitlement under the CPD policy.
For a worker to qualify for compensation for CPD, the following conditions must exist, and must be supported by all of the indicated evidence:
A work-related injury occurred.
Chronic pain is caused by the injury.
The pain persists 6 or more months beyond the usual healing time of the injury.
The degree of pain is inconsistent with organic findings
The chronic pain impairs earning capacity.
In contrast, policy 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.
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.
Again, I feel it is necessary to provide some background into the worker’s pre-injury history. The worker was involved in a motor vehicle accident in 2016 and sustained injuries to their neck, back, and lower left extremity. Following that accident, the worker was diagnosed with fibromyalgia, anxiety, and major depressive episode. The worked stopped seeing psychiatrist Dr. Memen in 2017 and had not seen their physician since January 2019 at the time of their workplace injury in April 2019.
The worker testified they originally sought psychological treatment in 2016 because their pain and decreased sleep were causing them to experience symptoms of depression including sadness, irritability, and feelings of uselessness. They noted these symptoms did not persist for the entire period they were off work and felt they lasted approximately 2 years.
The worker testified that as their physical symptoms improved, so did their psychological symptoms. They noted they as they were able to perform more activities, they felt better mentally.
I note this historical information as I find that while it indicates the worker did have pre-existing psychological and chronic pain diagnoses, it also supports the worker was eventually able to obtain new employment and work on a full-time basis until their workplace injury.
The worker was first diagnosed with somatic symptom disorder by Dr. Vasdev in October 2020.
The January 28, 2021, for the Upper Extremity Program psychological assessment by psychologist Dr. Woods diagnosed adjustment disorder with mixed anxiety and depressed mood, chronic and somatic symptom disorder with predominant pain, persistent. The worker’s test results demonstrated elevated scores for self-perceived disability due to pain, amplification of pain and anxiety and depression in the abnormal range.
Dr. Woods noted the work injury appeared to have contributed to the worker’s psychological condition during their recovery. While the worker met the threshold for the diagnosis of adjustment disorder with mixed anxiety and depressed mood, chronic, Dr. Woods explained adjustment disorder was a temporary psychological condition that usually resolved within six months. In the worker’s case, Dr. Woods stated the worker’s chronic adjustment disorder symptoms were likely maintained over time by factors that included persistent subjective pain, generally decreased activity and engagement, chronic sleep disturbance and possibly the impact of the Covid-19 pandemic.
Dr. Woods further explained that in contrast, somatoform disorders did not have clear courses or customary healing times and were less likely to significantly remit or resolve without targeted intervention.
The worker injury may have aggravated or exacerbated a pre-existing pattern of dysfunctional pain and coping stemming originally from injuries in the 2016 motor vehicle accident. The worker’s perception of pain and pain-related functional disability might pose significant barriers to recovery from a psychological perspective.
Dr. Woods noted that while the worker might normally benefit from a course of therapy, the clinical picture was largely dominated by pain preoccupation/focus and the perception of functional disability, irrespective of objective medical and other physical or functional findings. The worker’s best hope for symptomatic and functional recovery might involve psychological treatment embedded in a multidisciplinary pain management program.
Dr. Vasdev and Dr. Woods independently diagnosed the worker with somatic symptom disorder with predominant pain. I note the worker did not present with any fibromyalgia-like symptoms and there was no diagnosis of fibromyalgia.
Dr. Woods has provided an extensive explanation that, in my view, demonstrates the worker’s ongoing psychological symptoms have resulted from chronic pain arising predominantly from psychological sources other than posttraumatic stress disorder or conversation disorder outlined in the CPD policy and not the extended disablement and non-medical, socioeconomic factors specified in the psychotraumatic disability policy.
For these reasons, I find the worker’s chronic pain ought to be reviewed under policy 15-04-03, Chronic Pain Disability and not policy 15-04-02 Psychotraumatic Disability
I will now turn my attention to a review of the criteria for entitlement under policy 15-04-03, Chronic Pain Disability.
A work-related injury occurred
There is no dispute an injury occurred as the worker was granted entitlement to a workplace injury on May 30, 2019. The first criterion is met.
Chronic pain is caused by the injury
There must be subjective or objective medical or non-medical evidence of the worker’s continuous, consistent, and genuine pain since the time of the injury and a medical opinion that the characteristics of the worker’s pain (except its persistency and/or its severity) are compatible with the worker’s injury and are such that the physician concludes the pain resulted from the injury.
The clinical evidence supports the worker was diagnosed with chronic right shoulder strain. I note there is no medical opinion or report attributing the worker’s pain to another source. There are no relevant non-occupational diagnoses. The July 17, 2020, Upper Extremity Specialty Program attributed the worker’s ongoing pain to the persistence of symptoms, the worker’s pre-injury job demands and the limited benefits they received from treatment due to the disruption of clinic closures during the Covid-19 pandemic.
The October 20, 2020, psychiatric assessment with Dr. Vasdev confirmed the worker was referred for depressed mood and chronic pain. Dr. Vasdev noted the worker was off work due to a shoulder injury and was experiencing chronic pain as a result of that injury. The worker was diagnosed with somatic symptom disorder with predominant pain and a trial of antidepressant medication was recommended to target their low mood, chronic pain, and insomnia.
The December 18, 2020, Upper Extremity Specialty Program report indicated no further recovery was expected for the worker’s right shoulder chronic myofascial strain but a psychological consultation through the specialty program to address the worker’s pain and manage their symptoms may be beneficial.
The second criterion is therefore met.
The pain persists 6 or more months beyond the usual healing time of the injury
To satisfy this criterion, there must be a medical opinion of the usual healing time of the injury, the worker’s pre-accident health status, and the treatments received and subjective or objective medical or non-medical evidence of the worker’s continuous, consistent, and genuine pain for 6 or more months beyond the usual healing time for the injury.
In this case, the clinical evidence supports the worker’s right shoulder pain has persisted for six months or more beyond the usual healing time for a sprain/strain injury and is not contentious. As I have determined the second criterion is met, I do not need to revisit whether the worker’s continuous, consistent, and genuine pain arose from their workplace injury.
The third criterion has been met.
The degree of pain is inconsistent with organic findings
To satisfy this criterion, there must be a medical opinion indicating this inconsistency.
The December 18, 2020, report noted the worker’s test scores indicated a higher perception of pain and disability relative to the injury and recommended psychological treatment to address the worker’s pain and coping skills.
I therefore find this criterion has been met.
The chronic pain impairs earning capacity
The CPD policy requires that the worker’s genuine pain be demonstrated through evidence of marked life disruption. While the policy states there must be clear and distinct disruption to a worker’s life, the degree of the disruption is not specified. There must be consistent disruption to the worker’s personal, occupational, social, and home life but the degree of disruption in each does not have to be identical.
I note the worker was unable to resume their regular work duties following their injury and continued to require accommodation. I further note the worker’s responses to the Marked Life Disruption inquires the case manager conducted on February 1, 2023, documented difficulties in completing laundry, cooking, performing yard work or doing the grocery shopping.
The worker described a decreased social life and participation in family activities but noted a supportive relationship with their family. I find this corroborates the worker’s testimony during the oral hearing and there is evidence of disruption to the worker’s personal, occupation, social and home life.
The final criterion has been met.
I therefore find the worker has entitlement to CPD as I am persuaded their chronic pain is related to somatic symptom disorder with predominant pain under policy 15-04-03 Chronic Pain Disability. I further find the worker does not have entitlement to psychotraumatic disability as their chronic pain did not result from any of the criteria under policy 15-04-02 Psychotraumatic Disability.
I make no findings on the worker’s level of impairment or ability to participate in return to work in relation to their chronic pain as this is not properly before me.
CONCLUSION
The objection is allowed-in-part. I find the worker is entitled to LOE benefits from March 4 to July 23, 2020, and partial LOE benefits from July 24, 2020, onward based on the graduated return to work plan developed by the Upper Extremity Specialty Program.
I find there is no change to the worker’s NEL quantum.
I find the worker does not have entitlement to psychotraumatic disability as their chronic pain is a direct result of somatic symptom disorder with predominant pain and therefore the worker has entitlement to chronic pain disability. This claim is remitted to the operating area to determine the nature and duration of the benefits flowing from this decision.
DATED JULY 9, 2024Click or tap to enter a date.
D. Bowker
Appeals Resolution Officer
Appeals Services Division