Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 20-12-2023

• Judge: A.G. Baker: Vice-Chair
• Judgment Date: 20 December 2023
• Judgement Number: Released_Decisions
• Hearing Date: 18 December 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 1757/23

BEFORE:A.G. Baker: Vice-Chair

HEARING:December 18, 2023, at Toronto

Proposed Resolution

DATE OF DECISION:December 20, 2023

NEUTRAL CITATION:2023 ONWSIAT 1937

DECISION UNDER APPEAL:WSIB decision dated April 25, 2023

APPEARANCES:

For the worker:S. Oliverio, Paralegal

For the employer:Not Participating

Interpreter:n/a

REASONS

1. Introduction and Background

1. The worker appealed the ARO decision dated April 25, 2023.The sole issue under appeal is the quantum of the worker’s Non-Economic Loss (NEL) award for Psychotraumatic Disability.I also noted the following background from the ARO decision under appeal:

While performing modified job duties while recovering from a work-related motor vehicle accident of May 14, 2018, on May 31, 2018, the worker fell off a forklift onto the right side of their body. They had previously sustained rib fractures and back and knee injuries, however in the fall accident they sustained additional multiple soft tissue injuries and low back and neck strain/sprain injuries. The worker was referred for psychological and neurology assessments in July 2018, noting both accidents may have caused a head injury with possible loss of consciousness.

The worker returned to modified work with the injury employer for several weeks following the accident. They were off work again from July to October of 2018. A Return to Work Specialist (RTWS) became involved and a gradual RTW plan was developed. The worker did not progress to full hours of light duties. They stopped working again on August 10, 2019, and the employer advised they could no longer accommodate them. In a decision of June 12, 2020, the Appeals Resolution Officer (ARO) determined that the gradual RTW plan between June 24, 2019 and August 5, 2019 was suitable, and the worker was entitled to partial LOE benefits based on the RTW plan schedule and not their actual hours worked.

The CM determined the worker had reached maximum medical recovery (MMR) under the claim as of August 16, 2019. No decisions beyond the initial entitlement decision in the motor vehicle accident were rendered. The worker was granted a 21% NEL benefit for the permanent loss of function related to their low back and neck injuries, which were diagnosed as mechanical back and neck pain.

On August 28, 2019, the worker was diagnosed with Major Depressive Disorder (MDD) and Somatic Symptom Disorder. They participated in psychological treatment, with minimal improvement.

A RTW plan with training was developed for the SO of Light Assembly, National Occupational Classification (NOC) 9537, which commenced on June 4, 2020. The training plan included English language skills upgrading and job skills training which was provided to the worker over the phone on a daily basis, due to Covid-19 limitations. The worker completed the plan on November 5, 2021. They did not secure employment at the end of the plan, and their loss of earnings (LOE) benefits were adjusted to reflect the entry-level SO wage of $14.35 per hour, at 40 hours per week.

In a subsequent CMHP Progress Report dated October 30, 2020, Dr. IIacqua updated the diagnoses to include Post-Traumatic Stress Disorder (PTSD). The worker was referred for an assessment at the Centre for Addiction and Mental Health (CAMH), which occurred on December 8, 2021. The worker was diagnosed with MDD, Single Episode, Mild to Moderate and other Specified Trauma-and-Stressor- Related Disorder-features of PTSD.

In a decision dated January 12, 2022, the CM accepted temporary psychotraumatic disability entitlement for the diagnosis of MDD and denied the diagnoses of PTSD and Somatic Symptom Disorder. worker objected to this decision, which was reviewed by an ARO on August 15, 2022. The ARO granted entitlement to PTSD as a secondary condition related to the worker's May 31, 2018 injuries, which manifested in October 2020. The worker participated in additional blocks of treatment further to the recommendations by the psychologist. The worker did not make significant improvement and in a decision dated November 24, 2022, the CM advised the worker had reached maximum psychological recovery (MPR) as of May 18, 2022 with a permanent impairment for MDD and PTSD. The determined the worker was partially impaired and there were no psychological restrictions preventing a RTW. The SO of Light Assembly therefore remained suitable and entitlement to the associated partial LOE benefit was confirmed.

On December 1, 2022, the worker's NEL quantum for the permanent MDD and PTSD conditions under psychotraumatic disability were rated at 20%, representing a low range Class 3 Moderate impairment.

2. The worker objected to the findings noted above, and the ARO found the following:

1. Theworkers'NELquantum for theirpsychotraumatic disability was appropriately ratedat20%,in the lowerrange ofClass3 - Moderate Impairment
2. TheSO ofLightAssembly,NOC 9537is notsuitable,andI findthe worker is competitivelyunemployable as a result oftheir...