The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after November 7, 2022. A hearing was held on January 30, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 7, 2022.

Decision

The worker is entitled to wage loss benefits after November 7, 2022.

Background

The worker filed a Worker Incident Report with the WCB on March 26, 2020 reporting a psychological injury that occurred as a result of an incident at work on November 13, 2019. The worker described a client disclosing distressing and traumatic information to them which had a psychological impact on the worker. The worker noted they did not report the incident right away as they were not aware of the impact on them. In a discussion with the WCB on March 30, 2020, the worker advised they experienced an increase in their symptoms on December 31, 2019 and attended a local emergency department for treatment.

A copy of the December 31, 2019 emergency department report was received by the WCB on March 31, 2020. The report noted the worker attended for treatment after experiencing severe abdominal pains with chills and sweating and believed they may have had food poisoning. The worker also reported tightness in their lower chest, labour-like pains in their abdomen, numbness in their arms and legs and increased anxiety with mild nausea. When examined by the emergency physician it was noted the only symptom that remained was numbness to the worker’s arms and legs. Neurological testing was found to be normal along with a CT scan of the worker’s brain. It was noted the “Patient appears unwell.”

On March 26, 2020, the WCB received a copy of a report from the worker’s first appointment with their family physician on March 2, 2020. The worker reported complaints of “anxiety, insomnia, crying, loss of confidence, lack of motivation, hopelessness, panic attacks, fatigue, difficulty concentrating, unwanted upsetting memories about the events revealed by the client, hypervigilance…” and emotional distress when they saw that client at their workplace. The treating physician recorded “decreased eye contact, depressed/anxious affect, crying throughout most of the visit, psychomotor agitation, pre-occupation/rumination, mild impairment of insight and judgement” and diagnosed the worker with post-traumatic stress disorder (PTSD). Medications were prescribed and it was recommended the worker be placed off work.

In a discussion with the WCB on April 1, 2020, the worker confirmed they reported the incident to their family physician at an appointment on March 2, 2020 and had spoken to a counsellor on February 16, 2020 but had not mentioned the incident at that time as they were unaware of the effect it was having on them. The worker noted when they did mention the incident at approximately the end of February 2020 or beginning of March 2020, they were advised to speak to the counsellor’s colleague who had experience with their symptoms. The worker advised the WCB they had not yet spoken to the colleague as they did not feel at the time it was needed as they were getting treatment from their physician. In addition, the worker noted they had added family responsibilities due to the COVID-19 pandemic and felt they had not had the time but agreed that as they were still off work, the counselling would help with their symptoms. The WCB recommended the worker request a referral to a psychologist or psychiatrist from their family physician.

A report, along with chart notes, were received from the worker’s treating physician on April 28, 2020. The physician provided their opinion that the worker had been unable to work since February 19, 2020 due to “…symptoms consistent with PTSD” and was unable to perform modified or alternative work due to continued PTSD symptoms including hypervigilance, increased irritability, difficulty organizing their thoughts and word finding, mood lability, bouts of crying, flashbacks and intrusive thoughts. It was noted the worker had not previously sought treatment for any mental health issue. The treating physician noted the primary issue affecting the worker was job related stress and noted the worker’s reporting of increased violent encounters with clients at work and further noted the November 13, 2019 incident that left the worker horrified by the details disclosed to them and difficulty forgetting those details. The worker reported difficulty in performing their job duties. The physician also listed other personal issues that were affecting the worker’s mental health and noted the social distancing requirements of COVID-19 were also a factor.

The WCB contacted the employer on May 4, 2020 to discuss the worker’s claim. The employer noted the November 13, 2019 workplace incident had had an effect on all of the worker’s coworkers. After the incident, the employer noticed a decline in the worker’s mood and ability to handle some of their job duties and by February 2020, the worker could not handle their duties anymore and went off work. Also on May 4, 2020, the WCB spoke with the worker who advised they continued to experience difficulties, including panic attacks, and had been off work since February 19, 2020 as a result. The WCB advised the worker they would be referring them to a psychologist.

The worker met virtually with the psychologist on May 13, 2020 and May 20, 2020 with a report provided to the WCB on May 25, 2020. The treating psychologist recorded the worker’s history, reporting of the incident and symptoms and opined the worker met the criteria for a diagnosis of Other Specific Trauma and Stressor-Related Disorder. The psychologist went on to recommend the worker not return to work due to their ongoing symptom and the need for further treatment. A reassessment was recommended after 6 weeks, at which time the treating psychologist anticipated the worker would be able to return to their previous position. In a follow-up report dated August 12, 2020, the treating psychologist noted an improvement in the worker’s symptoms but found the worker was still suffering Other Specific Trauma and Stressor-Related Disorder and further treatment was recommended, with a possible return to work indicated in approximately 6 to 8 weeks.

The worker’s file was reviewed by a WCB psychological consultant on October 8, 2020. The consultant provided an initial diagnosis could not be established as the workplace accident occurred in November 2019, with the worker progressively developing symptoms, which are not noted until February 2020. Based on the report of the worker’s treating psychologist, the consultant provided the worker’s diagnosis to be Other Specific Trauma and Stressor Disorder and agreed the worker did not meet the criteria for a diagnosis of PTSD. The psychological consultant went on to opine the worker’s diagnosis was partially accounted for in relation to the November 13, 2019 event, with other personal issues also being factors. It was noted the worker had experienced significant improvement with their psychological treatment, with the worker’s treating psychologist noting in their August 12, 2020 report, the treatment was focused on non-claim related issues and a return to work should be considered in 6 to 8 weeks. The WCB psychological consultant also reviewed the September 11, 2020 report from the worker’s treating physician and found the worker’s reported symptoms did not indicate the worker was totally disabled from work. The consultant recommended a return to work with modified duties and gradually increasing hours.

On October 21, 2020, the WCB contacted the employer to discuss a return to work plan for the worker, which the employer advised they could accommodate. The WCB advised the worker did not have any physical restrictions but it was recommended the worker gradually return to their full duties. A schedule of 3 hours per week for 2 weeks, increasing an hour or two every 2 weeks until the worker was at their full regular hours was suggested. The employer advised they would discuss the plan to see when it could be implemented. On the same date, the WCB spoke with the worker to discuss the proposed graduated return to work plan. The worker advised the WCB they were still experiencing difficulties from their compensable injury and their family physician had recommended they remain off work until February 2021. The WCB advised of the review of the worker’s file by a WCB psychological consultant who opined the worker was not totally disabled from work. An October 23, 2020 report from the worker’s treating psychologist was received recommending an additional 6 to 8 therapy sessions prior to the worker starting a graduated return to work program. The report was reviewed by the WCB psychological consultant who opined the additional therapy sessions requested by the worker’s treating psychologist should be accepted with the treatment directed to aiding the worker in returning to work as there was no evidence based on the worker’s current functioning they were totally disabled from work. A further report was received from the worker’s treating psychologist on November 18, 2020 requesting approval for further treatment sessions to continue to aid the worker in returning to work. An additional 8 sessions were requested with the worker returning to work after those sessions occurred. On December 1, 2020, the WCB's psychological consultant spoke with the worker’s treating psychologist and agreed with their proposed treatment plan for the worker with the additional sessions geared toward enabling the worker to start a return to work program.

The worker’s treating psychologist provided a report to the WCB on December 18, 2020 recommending the following return to work schedule for the worker to start on February 1, 2021:

• Week 1: Work 2 days (Tuesday and Thursday), with reduced shift length (4-5 hours maximum, so either 9:30 – 1:30, or 9:30 – 2:30 

• Week 2: Work 3 days (Monday, Wednesday, and Friday), with reduced shift length (4-5 hours maximum, so either 9:30 - 1:30, or 9:30 – 2:30) 

• Week 3: Work 3 consecutive days (Tuesday, Wednesday, and Thursday), with full shifts (9:30 – 5:30) 

• Week 4: Work 4 consecutive days (Monday, Tuesday, Wednesday, and Thursday), with full shifts (9:30 – 5:30) 

• Week 5 and onward: Back to work regular full-time schedule (Monday through Friday, 9:30 – 5:30)

It was further recommended the worker be gradually re-introduced to engaging in client services and meeting with clients and regular supervision, including meetings and debriefing with their team also be arranged. On December 22, 2020, the worker’s treating physician confirmed their agreement with the return to work plan proposed by the treating psychologist. The WCB provided the employer with the worker’s restrictions on January 8, 2021 and the worker advised the WCB on January 13, 2021, they would be discussing their return to work with the employer. The employer confirmed the worker returned to work on a graduated basis on February 1, 2021. The worker contacted the WCB on March 26, 2021 to advise due to personal reasons they were taking a leave of absence from work. The WCB advised their entitlement to wage loss benefits would end as of March 26, 2021. A formal decision letter was provided to the worker on May 14, 2021. On June 15, 2021, the worker advised the WCB their leave of absence ended as of May 28, 2021 however, their treating family physician recommended they remain off work and continue psychological treatment.

The worker’s treating family physician submitted a report to the WCB on September 1, 2021 indicating the worker should remain off work completely from September 1, 2021 to October 31, 2021, after which, should participate in a return to work plan starting on November 1, 2021. It was recommended the return to work plan should start with 2 days per week, at 4 hours per day for 1 week, then 2 days per week at 8 hours per day for 2 weeks, then 3 days per week for 8 hours per day for 2 weeks, with the plan then to be reassessed. After discussions between the worker, the WCB and the employer, the WCB psychiatric consultant spoke with the worker’s treating psychologist on December 6, 2021 and the worker was advised on December 16, 2021, they were entitled to full wage loss benefits from September 1, 2021 to October 31, 2021, after which they were entitled to partial wage loss benefits when they returned to work on November 1, 2021.

On January 20, 2022, the worker provided the WCB with a status update. The worker advised they were currently working 4 days per week at their full hours per day. The worker noted due to operational issues with their employer, they were struggling due to the increased volume of their workload. The worker further advised they would be attending upcoming appointments with their family physician and had spoken to their treating psychologist and believed they would remain at 4 shifts per week. In a January 28, 2022 report from the worker’s treating psychologist, it was recommended due to the operational issues at work, the worker remain working at 4 days per week, with Wednesday off to recover, to be reassessed in 2 months. The worker’s file was reviewed by a WCB psychiatrist consultant on March 1, 2022, who opined the treating psychologist’s recommendation was appropriate. On March 28, 2022, the WCB received a sick note from the worker’s treating family physician indicating the worker should remain at 4 days per week until August 31, 2022.

The WCB requested and received copies of chart notes from the worker’s treating family physician and treating psychologist and on October 31, 2022, the WCB psychiatric consultant reviewed the worker’s file again. The consultant opined based on their review of the chart notes from the worker’s treating healthcare providers, no explanation had been provided as to why the worker could not work full time hours, as long as they are provided with frequent and reasonable breaks, if the worker needs to debrief or use their coping skills. On the same date, the worker was provided with a decision letter advising the WCB would no longer be accepting responsibility for their claim and their entitlement to wage loss benefits would end as of November 7, 2022.

A further progress report from the worker’s treating psychologist was received by the WCB on December 28, 2022. The psychologist provided that while the worker’s diagnosis of other specified trauma and stressor related disorder was in partial remission, the worker continued to experience symptoms and required further treatment and reduced hours at work to “…focus on treatment for further symptom reduction.” The worker’s file was again reviewed by the WCB’s psychiatric consultant on January 17, 2023 who provided that the worker had an extensive trial of psychotherapy, however, biweekly sessions over the following three months would be acceptable, with a transition to monthly sessions after that time. On January 18, 2023, the WCB advised the worker the previous decision they were not entitled to wage loss benefits after November 7, 2022 remain unchanged.

The worker requested reconsideration of the WCB’s decision to Review Office on January 24, 2023. In their submission, the worker noted their treating healthcare providers supported the need for ongoing restriction to their hours of work due to their compensable injury. The worker submitted their treating family physician on August 10, 2022 recommended the restriction of working only four days per week to remain in place for one year. On March 2, 2023, Review Office determined the worker was not entitled to wage loss benefits after November 7, 2022. Review Office accepted and agreed with the opinions of the WCB psychiatric consultant and found the worker’s requirement for reduced hours at work were not as a result of the November 13, 2019 workplace accident. Review Office further found the worker’s current difficulties were not related to that accident and the worker was capable of working five days per week.

On March 9, 2023, the worker’s treating psychologist submitted a report in support of the worker’s request for reduced hours at work to four days a week. The psychologist noted the worker having Wednesday off work provided “…for ample recovery from exposure treatment in an effort to prevent an exacerbation of trauma-related symptoms and a potential lengthier leave from work” and would prevent the worker from suffer a relapse of their compensable injury. In a March 22, 2023 email exchange with the worker, the worker requested Review Office reconsider the previous decision based on the new information provided by their treating psychologist. The new information was reviewed by the WCB psychiatric consultant on March 29, 2023 who opined the worker’s requirement of not working on Wednesday was preventative in nature, in speculation of a possible worsening of the worker’s symptoms. The consultant further opined there was no medical information on file to support the worker was not capable of working on Wednesdays or why there would be a high probability of worsening of the worker’s symptoms if they worked on Wednesdays. A copy of the opinion was provided to the worker, who provided a response on April 19, 2023. On April 21, 2023, Review Office upheld the previous decision and determined the worker was not entitled to wage loss benefits after November 7, 2022. Review Office found the medical evidence did not support the worker required a restriction of only working four days a week and noted the worker’s current reported symptoms were related to workplace issues and not the November 13, 2019 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on August 3, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under Section 4(2), a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under Section 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker appeared at the hearing and was represented by a worker advisor. The worker advisor provided a written submission in advance of the hearing and made oral submissions on behalf of the worker at the hearing. The worker answered questions posed of them by the worker advisor and the panel.

The worker's position was that the main issue was that there was a difference in medical opinions between the worker's treating physician and psychologist and the WCB psychiatric consultant.

The worker submits that their treating medical providers were in a better position than the WCB consultant to determine whether or when it would be safe for the worker to resume a full work week, given the length of time and frequency of in-person contact the worker had with their treating physicians.

The worker's position is that evidence supports that the worker continued to experience a loss of earning capacity and seeks that the appeal be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal is in respect of the question of whether the worker is entitled to benefits after November 7, 2022 in relation to the November 13, 2019 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to experience the effects of the compensable workplace accident beyond November 7, 2022 such that the worker either required further medical aid or continued to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The evidence before the panel was that the worker has consistently continued to experience trauma-related symptoms and anxiety, and that she has continued to experience these symptoms beyond November 7, 2022. The worker attended regular therapy sessions and regular reports and updates were provided by the worker's treating psychologist and physician.

The panel accepts that the nature of the clientele the worker interacts with is unpredictable and that there is an inability by the employer to control the types of clients the worker meets with on a daily basis.

The evidence supports that the worker's treating physicians continually and consistently stated that the worker required a day off work mid-week (Wednesday was chosen) because of the past traumatic event, the unpredictable nature of the clients and files the worker handles. As well as, allow the worker time for recovery from exposure therapy and to focus on different treatment modalities for further symptom reduction.

The panel notes that the WCB psychiatric consultant accepted that the functional limitations recommended by the treating physicians continued to be medically accounted for in February 2022, and while the worker's symptoms and the treating physicians' recommendations did not change, the WCB psychiatric consultant no longer accepted that functional limitations were required by October 2022. The panel notes however that the WCB continued to provide benefits for medication and therapy. The panel finds that the requirement for medication and therapy is an acknowledgement that the worker was still experiencing symptoms from the compensable injury.

The panel prefers the opinion of the treating physicians who have had repeated direct contact with the worker for several years over that of the WCB psychiatric consultant. The panel accepts that at the time the worker's wage loss benefits ended, the worker continued to need a day off work in the middle of her weekly shifts to provide relief from the workplace incident and symptomology.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that the worker had not recovered from the compensable workplace injuries by November 7, 2022 but continued to sustain a loss of earning capacity and to require medical aid in relation to the injuries sustained in the accident of November 13, 2019. Therefore, the worker is entitled to benefits after November 7, 2022 and the appeal is granted.

The appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of March, 2024