Decision No. 1911/19, 2020 ONWSIAT 18 (CanLII)

[2]                                         Information contained in the case materials indicates that when the worker initially started with the accident employer, she was hired as a baker.  In 2001, she began to experience pain and discomfort in the area of her upper back, right hand and neck which she related to the repetitive scooping and lifting involved in her job.  The WSIB (the “Board”) established a claim to deal with these issues and selected an accident date of November 6, 2001, the date of the worker’s first medical treatment.  A Health Professional’s First Report (Form 8) of November 10, 2001 provided a diagnosis of “neck strain with radiation into arm”.

[3]                                         As noted in Board Memorandum (“Memo”) No. 3 of this claim, the operating level recognized that a relationship “is established between the onset of the  neck strain to the work duties performed and the disablement criteria of accident is met”.  The operating level granted the worker Loss of Earnings (“LOE”) benefits from November 23 to November 26, 2001 when the worker went back to work.  The Board did not recognize that the worker had been left with a permanent impairment under this claim. 

[4]                                         As the worker indicated in her testimony at this hearing, when she went back to work with the accident employer, she returned to a job as a cake decorator.  The worker continued in this position and in about April 2005, reported that she was experiencing pain in her neck, right shoulder and wrist which she related to the repetitive lifting of heavy boxes required in her job.  A Form 8 of April 7, 2005, provided diagnoses of right lateral epicondylitis and right shoulder/neck strain. 

[5]                                         The Board established a new claim to deal with this onset of pain and in Memo No. 1 of May 10, 2005, the Adjudicator granted the worker initial entitlement being satisfied that there were “sufficient risk factors associated with the cake decorator’s job that a relationship is established between the onset of the impairments to the job duties performed”.  The worker was granted LOE benefits until she returned to modified work on June 3, 2005.  When the worker returned to work, it was to graduated hours and she was paid partial LOE benefits by the Board after June 3, 2005. 

[6]                                         As the worker confirmed in her testimony at this hearing, when she went back to work, she worked in the store front portion of the employer’s operation.  Her duties included serving customers and operating the cash register.  The worker made a brief attempt to return to full-time hours in September 2005 but experienced a worsening of her condition.  In a report dated September 22, 2005, the worker’s family physician, Dr. O. Zayid, indicated that the worker had re-aggravated her injuries and would be unable to work until further notice.  As a result, full LOE benefits were reinstated from September 23, 2005.

[7]                                         With the worker’s ongoing complaints of pain and discomfort, arrangements were made to have her assessed at a Regional Evaluation Centre in December 2005.  In the report which followed that assessment, Dr. A. Porte (the evaluating physician) concluded that the worker “can participate in a graduated return to her own work responsibilities over eight weeks”.  As a result of Dr. Porte’s opinion, the full LOE benefits the worker had been receiving since September 23, 2005 ceased on December 20, 2005 when the worker made an attempt to return to modified duties on a graduated basis.  At that point, the worker’s partial LOE benefits were reinstated.

[8]                                         Information contained in the case materials indicates that the worker stopped working on about June 30, 2007 maintaining that she was unable to continue performing the modified duties that had been provided by the accident employer.  The Board’s operating level concluded that the worker was not entitled to full LOE benefits beyond June 30, 2007 because the modified duties offered by the employer were suitable.  This conclusion was confirmed by an Appeals Resolution Officer (“ARO”) in a decision dated August 31, 2010.  The ARO also confirmed the finding of the Board’s operating level that the worker had no entitlement under this claim for a psychotraumatic condition.  The worker appealed these issues to the Tribunal and in Decision No. 1437/11 dated January 26, 2012, a Tribunal Vice-Chair granted the worker’s appeal in part.  The Vice-Chair granted the worker initial entitlement for a psychotraumatic condition (depression and anxiety) accepting that the workplace injury and its sequela made a significant contribution to the psychological difficulties which began in about 2006.  The Vice-Chair also indicated however, that there was insufficient evidence available for her to make any findings with respect to the worker’s ongoing psychological impairment and in particular, whether the worker had a permanent psychotraumatic impairment.

[9]                                         In Decision No. 1437/11, the Tribunal Vice-Chair concluded that the worker was not entitled to LOE benefits after June 30, 2007 on the grounds that the modified duties made available to her by the employer were suitable.  In that regard, the Vice-Chair concluded:

[10]                                      In February 2010, the worker was granted a 30% Non-Economic Loss (“NEL”) award for her compensable organic injuries diagnosed as “neck strain, RT elbow epicondylitis, RT shoulder strain”. 

[11]                                      Following the release of Decision No. 1437/11, the issue of the worker’s ongoing entitlement for a psychotraumatic condition was returned to the Board’s operating level for further adjudication.  The Board’s operating level determined that the worker had not been left with a permanent psychotraumatic impairment and that conclusion was confirmed in an ARO decision of January 28, 2014.  The worker appealed that decision to the Tribunal and in Decision No. 2675/16 dated January 24, 2017, a Tribunal Vice-Chair granted the worker’s appeal finding that she had a permanent psychotraumatic impairment and selected April 4, 2013 as the date of maximum medical recovery (“MMR”).  April 4, 2013 was the date of a report from the worker’s psychologist, Dr. H. Macaulay.  The issue of the quantum of benefits flowing from that conclusion was returned to the Board for further adjudication.

[12]                                      In April 2017, a NEL Clinical Specialist, after reviewing the evidence on file, decided that the worker, from a psychotraumatic perspective, had a 20% Whole Person Impairment.  In reaching that conclusion, the NEL Clinical Specialist indicated in part:

[13]                                      In addition to advising the worker that she had entitlement to a 20% NEL award for her psychotraumatic condition, a Case Manager, in a decision dated May 23, 2017 indicated:

[14]                                      Following the release of Tribunal Decision No. 2675/16 and the subsequent granting of a 20% NEL award, the worker asked that the Board’s operating level review the issue of her entitlement to LOE benefits subsequent to June 30, 2007.  In a decision dated July 17, 2017, a Case Manager denied that request indicating in part:

[15]                                      The worker disagreed with a number of decisions made by the Board’s operating level including the quantum of the 20% NEL award granted for her psychotraumatic condition as well as the conclusion that she had no psychological work restrictions and was not entitled to LOE benefits subsequent to June 30, 2007.  These issues were eventually referred to another ARO and in a decision dated November 17, 2017, the ARO granted the worker’s appeal in part.  The ARO concluded that the worker ought to have been granted a 30% NEL award for her psychotraumatic condition and concluded:

[16]                                      The ARO concluded that the worker had no specific work-related restrictions due to her psychotraumatic disability and indicated in part:

[17]                                      With respect to the worker’s entitlement to LOE benefits beyond June 30, 2007, the ARO found that they had no jurisdiction with respect to that issue, noting:

[18]                                      The worker appealed the ARO’s November 17, 2017 decision to the Tribunal.  Prior to the hearing of that appeal, Tribunal staff requested direction from the Acting Vice-Chair Registrar concerning the issue of the Tribunal’s jurisdiction to consider entitlement to LOE benefits after June 20, 2007 in light of the Tribunal’s Decision No. 1437/11.  In a memo dated March 20, 2019 (contained in Addendum No.  4) the Acting Vice-Chair Registrar concluded:

[19]                                      As outlined in the Hearing Ready Letter of April 4, 2019 (Exhibit #9) the issues to be determined in this case are:

[20]                                      Under questioning from Mr.  DiLena, the worker testified that she was born in 1967 and came to Canada in 1998.  After about six months in this country, she found a job working in a factory with her husband.  She worked there for about 11 months and then was hired by the accident employer in 1999.

[21]                                      The worker testified she was initially hired by the accident employer as a baker and worked at their training centre which also included a retail store.  There was a lot of heavy lifting and scooping involved in her baker’s job.  She testified that she was very happy to find this work and enjoyed it because she liked to cook a lot at home.  In 2001 however, she began to experience some pain in the area of her right elbow and neck which she related to the nature of her job duties.  She recalled having some physiotherapy for about three months and taking some medication.

[22]                                      The worker testified she eventually returned to the accident employer and was assigned to work as a cake decorator.  This job was a little lighter but still had a lot of repetitive mixing and lifting involved.  She testified that she experienced a gradual onset of neck, shoulder and upper back pain around 2005 which the Board eventually recognized as compensable.  She made efforts to return to modified duties although she continued to experience symptoms of pain and discomfort.  She described a particular incident on April 1, 2007 when, while lifting a box at work, she experienced a sensation in her left shoulder that felt like an electrical shock.  She dropped the box she was carrying.  She was able to complete her shift that day but the next day she experienced a similar sensation.  She went to see her family doctor who eventually made arrangements for her to see a specialist.  She was authorized off work and was paid benefits by the Board. 

[23]                                      The worker testified that when she came back to work, it was to modified duties, now working in the retail coffee shop.  In this position, she performed tasks such as serving coffee, working at the drive-thru and operating a cash register.  She continued to experience her pain and found it difficult to operate the cash register/computer because the repetitive up and down neck movements bothered her.  She did this work for about two weeks and then was given the job of a “runner” where she was responsible for filling drive-thru orders.  She found this work difficult as well because she had to move quickly and there was a lot of overhead reaching.  In addition to the pain in her arms and shoulders, the worker also began to experience headaches because of the noisy environment in which she worked.  Eventually the worker stopped working all together and has not worked since.

[24]                                      The worker testified that in about 2006/2007, she began to experience psychological symptoms of anxiety and depression.  She found herself frequently in tears. One of her children suggested she needed to seek help and took her for a consultation.  The worker testified she had also experienced a panic attack at home.  Her family doctor eventually prescribed Lorazepam to help deal with her depression and anxiety.  The worker testified she had never experienced any symptoms like this in the past. 

[25]                                      The worker testified the medication she was prescribed helped with her symptoms in the beginning however, the worker’s symptoms eventually were such that she preferred to remain at home, often in her bedroom.  She did not want to see other people.  She was ashamed to talk to others about her condition.  The worker was unable to recall the last time she socialized with anyone outside the family.  The worker no longer drives.  She has difficulty turning her neck and she also finds it hard to concentrate.  Her husband now drives her to appointments with the physiotherapist or the family doctor.

[26]                                      The worker testified that she is able to prepare simple meals for herself.  Her husband and adult son do the cooking Friday to Sunday and her husband, who works outside the home, brings home food the rest of the week. The worker is able to do the laundry but requires her husband’s assistance to carry the laundry basket.

[27]                                      The worker testified that she often experiences prolonged periods of depression which might last for as much as five or six days at a time.  She does not go to restaurants because she does not like being with crowds and she gets anxious.  She testified that she is “not the same person that she was before”.  She used to enjoy socializing.  It bothers her that she is unable to properly care for her husband and son and she feels guilty that she cannot contribute to the family financially.  She spends much of her day in her bedroom although she will go out to other parts of the home.  She currently takes a variety of medication for her pain, depression and anxiety including cannabis oil.  She continues to see her family physician and Dr. Tozman, her psychiatrist. 

[28]                                      The worker testified that Dr. Tozman has advised her that if she does not want to go out into public, she should not do so.  Her husband wants her to go to an upcoming wedding but she does not want to attend because of the crowds and noise.  She finds it stressful to be in small areas like her family doctor’s waiting room.  It is stressful for her to drive by one of the locations of her employer or even to see any of their products.   

[29]                                      The worker is currently in receipt of CPP disability benefits for which she applied in July 2013. 

[30]                                      Since this claim has an accident date in 2005, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the “WSIA”).

[31]                                      Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has advised the Tribunal that one of the policies that applies to this appeal is Operational Policy Manual Document No 18-05-11 entitled “Assessing Permanent Impairment Due to Mental and Behavioural Disorders”.  This policy provides that when workers with psychotraumatic permanent impairments are rated for NEL purposes, they are placed into one of five classes – Class 1, No Impairment (0%); Class 2, Mild Impairment (5-15%); Class 3, Moderate Impairment (20-45%); Class 4, Marked Impairment (50-90%) or Class 5, Extreme Impairment (95%). In this case, the ARO found that the worker ought to have been granted a 30% NEL award for her compensable psychotraumatic condition.  Mr. DiLena takes the position that the worker’s NEL award ought to have been in the range of 35-40%.  The applicable portion of Board policy provides:

[32]                                      At the outset, it is worth noting that the issue to be determined in this appeal involves deciding the quantum of the NEL award the worker ought to have been granted when she reached maximum medical recovery in 2013. The issue is not whether the worker has developed a significant deterioration in her psychotraumatic condition as time has passed.

[33]                                      Having had the opportunity to review the material before me, including the medical reports referenced by Mr. DiLena in his submissions, I find that the evidence does not warrant rating the worker at the upper end of Class 3 because, as policy requires, I was not referred to evidence of any substance establishing that there was a definite deterioration in family adjustment, or that the worker tended to withdraw from her family, nor was there evidence of a phobic pattern or conversion reaction with some bizarre behaviour.  In her testimony at this hearing, the worker acknowledged that she continues to have a good relationship with her husband and her adult son who is currently living at home.  She is very appreciative of their support. They assist her with household chores and while the worker prefers to stay at home, she only leaves the house when being driven by her husband.

[34]                                      While I am satisfied that the worker’s level of impairment does not warrant a rating at the upper end of Class 3, I find myself in agreement with Mr. DiLena that an increase in the 30% level recognized by the ARO would be appropriate.  In my view, the balance of evidence supports the conclusion that a 35% NEL award would be an adequate reflection of the worker’s psychotraumatic impairment.  In reaching that conclusion, I have taken particular note of the following:

[35]                                      Having reviewed the medical reporting at issue and after taking into account the worker’s testimony, I find that there is evidence of the worker experiencing, as policy requires, a moderate anxiety state, incipient breakdown of social integration and longer episodes of depression.  As indicated in the reporting and in the worker’s testimony, there is evidence of noise intolerance and a significantly diminished stress tolerance.  The reporting also is consistent with the worker’s testimony to the effect that she avoids anxiety creating situations and is frequently homebound, if not, roombound. Further, I observe that the worker's psychiatrist, Dr. Tozman, rated the worker in the mid range Class 3 at 35%. Given these findings, I find that the worker ought to be granted a 35% NEL award for her psychotraumatic condition.

[36]                                      There is no dispute in this case that the worker has been left with a permanent impairment as a result of her compensable depression and anxiety.  In this appeal, I am dealing with the issue of whether the worker has any psychotraumatic restrictions. Given that the other issues before me centre around LOE benefits in 2012/2013 and a NEL determination at the time the worker reached MMR in 2013, I find it appropriate to address only whether there were psychotraumatic restrictions present at that time i.e. 2012 – 2013. The ARO acknowledged, and I would agree, that as a result of her impairment, the worker has been left with a number of limitations in her day-to-day functioning. As noted in the October 25, 2012 report from Dr. Macaulay for example, the worker’s depression and anxiety have left her with decreased appetite and a lack of energy, problems with her memory and concentration, difficulty focusing on reading or watching television, forgetfulness, poor sleep and a preference to remain in her home.  In the report, Dr. Macaulay noted that the worker said that she “only feels safe at home” and that “she feels anxious about going out and having to interact with other people”.  Dr. Macaulay’s comments about the worker preferring to remain in her home are consistent with the worker’s testimony at this hearing. 

[37]                                      In support of his position that the worker had been left with permanent precautions or restrictions as a result of her compensable psychotraumatic condition, Mr. DiLena referred to a September 26, 2016 report from Dr. Zayid which concluded:

[38]                                      While I acknowledge the contents of the 2016 report form Dr. Zayid, as noted earlier, I am primarily considering the issue of psychotraumatic restrictions in 2012 – 2013. While the 2016 reporting from Dr. Zayid may suggest that there has been a worsening in the worker’s condition, that issue is not before me, noting the period of benefits I am considering (i.e. LOE from 2012 to 2013 and the quantum of the worker’s NEL award at MMR in 2013).

[39]                                      While I appreciate that the worker’s compensable psychotraumatic condition has impacted her activities of daily living (a 35% NEL award recognizes “impairment levels compatible with some but not all useful function”), I am not satisfied that her psychotraumatic condition left her with any specific restrictions during the time period under consideration here i.e. 2012 to 2013. I was not referred to medical evidence of any significance (dealing with the period of 2012 to 2013) that commented upon her psychotraumatic restrictions. As indicated earlier, the issue of whether the worker’s psychotraumatic condition deteriorated after 2013 and whether she developed any psychotraumatic restrictions at that point, is not before me.

[40]                                      On this issue, the worker’s representative takes the position that the worker experienced a significant deterioration in her psychotraumatic condition between January 26, 2012 (the date of Decision No. 1437/11) and April 4, 2013 (the maximum medical recovery date for the psychotraumatic condition selected in Decision No. 2675/16). 

[41]                                      In this case, I have determined that the worker ought to have been granted a 35% NEL award in recognition of her permanent psychotraumatic entitlement which places her in the upper end of Class 3.  I have reviewed the medical reports referred to by Mr. DiLena in his submissions covering the period between 2012 and 2013. These include reports from Dr. Tozman, Dr. Macaulay and Dr. Nikkhou, a psychologist who assessed the worker at the request of the Board.  In my view, while these reports confirm the effect which the worker’s anxiety and depression have had on her life in general and her activities of daily living, they do not establish, in my view, that there was any significant deterioration in the worker’s condition during the period of January 12, 2012 to April 2013.  Rather, the reporting establishes that the worker continued to experience the symptoms which entitled her to a 35% NEL award.  As such, this portion of the worker’s appeal is also denied.

[42]                                      Pursuant to section 43 (1) of the WSIA, a worker who has a loss of earnings “as a result of” his or her compensable injuries, is entitled to receive LOE benefits beginning when the loss of earnings starts and continuing, among other things, until the loss of earnings ceases.

[43]                                      This claim has an accident date in 2005.  Section 44 (2) of the WSIA provides that subject to certain exceptions, the Board shall not review the payment of LOE benefits more than 72 months after the worker’s injury.  In this case, the worker would have reached the 72 month date on about April 1, 2011, prior to the period for which she seeks LOE benefits in this appeal. 

[44]                                      As Mr. DiLena noted in his submissions however, section 44 (2.1) outlines certain situations where the Board may review the payment of LOE benefits beyond the 72 month date.  Mr. DiLena referred specifically to sections 44 (2.1) (c) and (f) which provide:

[45]                                      While I agree that the sections referred to above would permit a review of the worker’s entitlement to LOE benefits for the period of January 2012 to April 2013, the reliance on those sections is contingent upon establishing that there has been either a “significant deterioration” or a “significant temporary deterioration” in the worker’s compensable condition.  As noted earlier in this decision, my review of the medical reporting in question, while confirming the effects of the worker’s compensable injuries, did not establish that there had been a significant deterioration (either temporary or permanent) in her compensable condition.  Similarly, as referenced earlier in this decision, the fact that the worker’s NEL award was increased from 30% to 35% is not a reflection of a significant deterioration in her condition.  Rather, the 35% award reflects my conclusion about what the worker should have received when the NEL award was originally granted.  Having accepted that the worker did not sustain a significant deterioration in her compensable condition, I find that there is no basis to consider the issue of the worker’s entitlement to LOE benefits between January 2012 and April 2013.  As such, this portion of the worker’s appeal is denied.

[46]                                      The worker’s appeal is allowed in part.

[47]                                      The worker is entitled to a 35% NEL award for her compensable psychotraumatic condition. 

[48]                                      There are no specific restrictions related to the worker’s psychotraumatic condition during the period 2012 to 2013.

[49]                                      The worker’s psychotraumatic condition did not significantly deteriorate between January 26, 2012 and April 4, 2013 and therefore there is no basis to consider the issue of the worker's entitlement to LOE benefits during this period.