Public Decisions | The Appeal Commission

Decision #67/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 22, 2002, at the request of the claimant's union representative. The Panel discussed this appeal on April 22, 2002.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond July 9, 2001.

Decision

That the claimant is not entitled to wage loss benefits beyond July 9, 2001.

Decision: Unanimous

Background

The claimant filed an application for compensation benefits indicating that both his hands were swollen and he was unable to keep a constant grip on his knife. The date of injury was reported as November 24, 2000. The claimant was employed at a meat processing plant at the time of injury. The employer confirmed that the claimant's hands were sore from opening hogs.

On November 27, 2000, the attending physician diagnosed the claimant with a repetitive strain injury to both hands. The Workers Compensation Board (WCB) accepted the claim for compensation and the claimant was paid wage loss benefits for November 27, 2000.

In April 2001, the claimant contacted the WCB indicating that he was experiencing further difficulties with both hands along with his left shoulder due to specific work duties that he was performing. Medical reports showed that the claimant had been diagnosed with mild bilateral carpal tunnel syndrome and biceps tendonitis. The WCB accepted the claimant's shoulder and biceps difficulties and his associated medical treatment.

On May 10 and 17, 2001 respectively, the claimant filed claims for stress leave which he related to his compensable injury and for depression which he related to the injuries to both his hands.

In a report dated May 12, 2001, a psychiatrist noted that he had treated the claimant from March of 1995 until February 2000 for alcohol abuse which led to a picture of bipolar mood disorder. An underlying diagnosis of social phobia persisted. The alcohol abuse was now under control and the depression was in remission. When seen again on May 9, 2001, the claimant complained of increasing insomnia and related fatigue and anxiety agitation. The claimant felt he was unable to work because of this, and "knowing him as I do, I concurred". The psychiatrist noted that the jobs that the claimant had been performing made him feel rather foolish and conspicuous which was something he could no longer tolerate with his social phobia.

In a letter to a WCB case manager dated June 26, 2001, a union representative pointed out that the claimant had problems with his arms and wrists and a rotator cuff tear of the shoulder which were directly related to the type and volume of work he performed. The claimant was assigned modified duties that involved visual inspection of produce. Prior to this, there was no such position as a visual inspector. The claimant believed this was a "make work" project that provided no meaningful or productive work by the injured worker. The claimant said he was 'stuck in one little area and told not to use his hands - just to stand there and stare for 8 hours.' The claimant got to the point where he was totally stressed out. He was already having stomach problems and could not take any more pills. The claimant felt he was 'doped up' every day. The union representative stated, "The development of the compensable conditions, the difficulty in managing the symptoms of those conditions - both with and without medications - and the added financial stressors have impacted on a long standing and stable pre existing psychological condition, now needing care and attention for the first time in more than 3 years." Due to the relationship between all these things, the union representative's position was that the claim must be accepted as the responsibility of the WCB.

Subsequent file information showed that the claimant was interviewed by a WCB psychiatric consultant on July 9, 2001 to determine his psychiatric status and how it might impact on a return to work. The consultant concluded, following the interview, that there were no clear psychiatric problems which would preclude the claimant from returning to work. The claimant "welcomes a return to employment, as he finds it helpful to be gainfully employed and providing a service to his employer. The FCE [functional capacity evaluation] will indicate the type of work that the claimant would be able to do safely and productively.

A progress report from the attending physician dated July 25, 2001, indicated that the claimant's tendinitis and dyspepsia seemed to be improving and his anxiety disorder was settling.

On July 25, 2001, primary adjudication wrote to the claimant. He was advised that a WCB medical advisor had reviewed his file which included recent medical information. The WCB medical advisor was of the opinion that the claimant could work modified duties and specific work restrictions were outlined. The claimant was advised that his employer would be able to accommodate his work restrictions with modified/alternate work.

With regard to the claim for stress, primary adjudication noted that the claimant had a significant history of pre-existing psychological problems and there was no indication that a traumatic event occurred. On this basis, primary adjudication concluded that the case did not meet the requirements of a stress claim as outlined under the Workers Compensation Act (the Act). In addition to the above, the WCB considered the claimant capable of returning to modified duties and that the claimant would be entitled to wage loss benefits for July 9, 2001, which was the date of the WCB call-in examination.

On September 10, 2001, the union representative wrote to a WCB case manager concerning the WCB's decision of July 25, 2001. The union representative stated, in part, "In your letter you advise the WCB is unable to accept Mr. [the claimant's] stress claim. I wish to clarify that we are not suggesting Mr. [the claimant's] stress is a compensable accident or injury, per se, however, his previously stable pre existing condition clearly deteriorated as a result of his injury and his return to modified/alternate work. We agree he has had a "significant" history of pre-existing psychological problems, and it is this condition that has been exacerbated by the compensable injury. It is our position, therefore, that Mr. [the claimant] is entitled to benefits under Board Policy 44.10.20.10: Pre-existing Conditions."

In response to the union representative's letter of September 10, 2001, primary adjudication made reference to the recommendations made on July 9, 2001 by the WCB's psychiatric consultant along with the comments expressed by a WCB medical advisor on September 17, 2001, i.e. that there was no pre-existing condition. After reviewing the file information and the availability of modified duties with the accident employer, primary adjudication was of the opinion that the claimant was not entitled to benefits under WCB policy 44.10.20.10 pre-existing conditions.

On October 5, 2001, primary adjudication wrote to the claimant concerning his time loss from work which commenced on October 1, 2001. The letter noted that the claimant was performing duties in the box room and it was found that this position was outside of his restrictions. The employer then arranged for the claimant to work as a visual inspector which was clearly within the claimant's restrictions. After one shift in the alternate position, the claimant advised his employer that he was unable to continue with the visual inspection as it caused pain in his neck and back. The claimant was excused from work and was advised to obtain a medical note to support his inability to perform the position. It was the opinion of primary adjudication that the alternate duties were within the claimant's compensable restrictions and that a relationship did not exist between the claimant's neck/back pain and his compensable injury to his hands.

On December 7, 2001, Review Office considered the case in light of an appeal submission from the claimant's union representative dated October 10, 2001. Review Office determined that the claimant was not entitled to wage loss benefits, either on a physical or psychological basis, beyond July 9, 2001 or commencing October 1, 2001. In making its decision, Review Office provided the following rationale:

the jobs provided to the claimant by his employer, with the exception of the box room, were suitable for his restrictions, especially the visual inspection position. Review Office found that the claimant was physically capable of handling the available alternate employment that he was provided with.
the claimant experienced psychological/psychiatric problems in the past for which he had been treated and that the psychiatric aspect of this case kept the claimant off work both in the spring and as of October 1. The physical findings in both instances were minimal and while they prevented the claimant doing his pre-accident work, they would not have prevented him from carrying out the offered modified duty work. Review Office took note that when the claimant was finally examined, his own doctor was unable to find much of consequence wrong with the worker.
the reason the claimant stopped work in the spring of 2001 and again in the fall of 2001 was for reasons related to his psychiatric problems and not specifically because of his compensable injuries which had been variously described as tendonitis of his wrists and problems with his shoulders. The compensable injuries therefore did not play any type of material role in creating the lost earning capacity claimed by the worker and his union.
the change in the claimant's employment from a full time production worker to a job such as the visual inspection/clean up job would not qualify the worker for a stress claim based on the limitations provided by the legislation. Review Office noted that the union presented a legal situation in Alberta regarding a stress claim, however, it was equally clear the Alberta Act did not contain an exclusion for stress such as the Manitoba Act has.

On February 14, 2002, the union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker who incurred injuries to his hands, wrists and shoulder as a result of a workplace injury. His claim for compensation was accepted and benefits were paid to him.

A significant part of his case management involved his working at modified or alternate duties. These duties were determined to be within any restrictions placed on his ability to return to work. This was re-confirmed by a "functional capacity evaluation" conducted on July 9, 2001.

This case took an unusual turn in the Spring of 2001, and again in October 2001, when the claimant was unable to continue working owing to stress factors, allegedly brought on by the modified duties he was performing. It was argued that the stress had aggravated pre-existing psychological problems, which had been dormant for a number of years.

It was argued, further, that wage loss benefits should be paid, pursuant to Board Policy 44.10.20.10, Pre-Existing Conditions. This policy allows for the payment of benefits where a pre-existing condition is aggravated by a compensable injury and both are partially responsible for the worker's disability.

An application for benefits for this aggravation was denied, which decision was upheld by the Review Office. He has appealed that decision to this Commission.

The issue before the Panel was whether or not benefits should be paid beyond July 9, 2001, the date at which it had been determined that he was physically capable of performing the modified duties provided by his employer.

For his appeal to be successful, the Panel would have to determine that the stress he incurred was a compensable injury; and that it constituted an aggravation of a pre-existing condition, as set out in the relevant policy. We were not able to make that determination.

First, we note that, under The Workers Compensation Act of Manitoba, the acceptance of stress as a compensable injury is very limited.

Subsection 1(1) provides the following definition:

occupational disease

peculiar to or characteristic of a particular trade or occupation; or
peculiar to the particular employment;

but does not include
an ordinary disease of life; and
stress, other than an acute reaction to a traumatic event.

Under this definition, the only diagnosis accepted as compensable is that for "post-traumatic stress disorder" (PTSD). This diagnosis is made only when the claimant meets very specific criteria. The claimant, in the case before us, was not diagnosed with PTSD. Furthermore, he is not claiming that his stress was due to a traumatic event. Thus, he is not eligible for benefits, pursuant to this section of the Act.

Through his representative, the claimant argued that his stress condition was an aggravation of a pre-existing condition, which was precipitated by the change in working conditions brought about by his being assigned to modified duties.

Subsection 1(1.1) of the Act, which is germane to this consideration, reads:

The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination. Thus, the Act excludes this worker's situation. His change in work conditions does not constitute an accident, a required element of any compensable injury.

We found further support for our conclusion in three medical reports. The first was that of a psychiatric consultant to the Board who examined the claimant on July 9, 2001. She wrote that, while he "has had episodes of Panic Attacks . [he] does not meet the diagnostic criteria for Panic Disorder." She further noted that ". at this time, the claimant could not be said to have Bipolar Disorder. The claimant experienced Adjustment Disorder with Mixed anxiety and Depressed Mood, and this has resolved."

She concluded with the following comments:

"At the present time, there are no clear psychiatric problems which would preclude the claimant from a return to work. In fact, the claimant welcomes a return to employment, as he finds it helpful to be gainfully employed and providing a service to his employer." A few weeks later, his own physician wrote to the psychiatric consultant, after reviewing her report, that "I concur quite entirely with your assessment."

In a September 17, 2001 memo, the psychiatric consultant wrote that she did not find that the claimant had a pre-existing condition.

We conclude that there is no support in the statute, the policy or in the medical evidence on file for the claimant's contention that he is entitled to wage loss benefits beyond July 9, 2001, the date at which he was found to be capable - both physically and psychologically - of returning to work at modified duties.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of May, 2002

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