The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 10, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not responsibility should be accepted for wage loss benefits and medical treatment beyond August 21, 2002.

Decision

That responsibility should be accepted for wage loss benefits and medical treatment beyond August 21, 2002.

Decision: Unanimous

Background

On May 22, 2002, the claimant was involved in a motor vehicle accident while on her way to a meeting for work. Subsequent medical information revealed that the claimant was seen at a local hospital with complaints of a sore upper back and chest. The diagnosis rendered was a neck strain and a sternum contusion. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant effective May 23, 2002.

In a Doctor's First Report dated May 27, 2002, the attending physician diagnosed the claimant with a left knee contusion and traumatic costochondritis. The claimant was later referred for physiotherapy treatments. On June 12, 2002, the physician reported that the claimant complained of discomfort on palpation of the posterior trapezii bilaterally and discomfort with neck movements at extreme range of motions.

By July 10, 2002, the attending physician noted that the claimant continued to complain of neck muscle/upper shoulder pain and that she continued to be worried about damage to breast implants. The physician suggested that the claimant stay off work until August 6, 2002 at which time she should start work part time at 3 days per week. He also stated that the claimant could return to regular duties by August 30, 2002. File information revealed that the claimant had returned to work on August 6, 2002.

In a progress report dated August 14, 2002, the attending physician reported that the claimant was exhibiting signs and symptoms of acute depression. He stated that the accident had exacerbated mildly depressive symptoms, but work stress was now the main contributing factor.

In a memo dated August 13, 2002, a WCB adjudicator documented that the claimant was feeling quite overwhelmed by working 3 days a week. The claimant stated that she came back to a backlog in her workload and was feeling quite distressed over the graduated return to work program and other non-compensable issues.

On August 14, 2002, the claimant was advised that it was the WCB's opinion that she had recovered from the effects of the May 22, 2002 work injury on a balance of probabilities. As the claimant was presently working on modified duties, partial wage loss benefits would be payable to August 21, 2002 inclusive and final.

In a submission dated November 6, 2002, the claimant's union representative made reference to a report from a psychiatrist dated October 3, 2002 who expressed the following opinion: "…it is readily apparent that Ms. [the claimant] is in the midst of a major depressive episode, with her current symptoms appearing to be of moderate severity. As mentioned above this major depressive episode appears to have been superimposed on a dysthymic disorder. The motor vehicle accident of May 22, 2002 appears to have been the precipitant to this depressive episode, with Ms. [the claimant] experiencing a significant diminution in mood and associated neurovegetative symptoms in the aftermath of the motor vehicle accident. Based upon my assessment Ms. [the claimant] does not currently appear capable of returning to work."

Based on the above report, the union representative was of the view that the claimant was not capable of returning to work on a graduated basis from August 7, 2002 to August 21, 2002 and therefore wage loss benefits should be reinstated. This position was reiterated by the union representative in a further submission dated February 5, 2003.

On April 9, 2003, primary adjudication advised the union representative that the report from the claimant's psychiatrist had been reviewed, however, the decision to terminate benefits as of August 21, 2002 would remain unchanged. On May 8, 2003, the union representative appealed primary adjudication's decision and the case was forwarded to Review Office for consideration.

In a decision dated June 6, 2003, Review Office determined that responsibility would not be accepted for wage loss benefits and medical treatment beyond August 21, 2002. Review Office noted that the medical report from the psychiatrist provided significant evidence regarding psychosocial issues and pre-existing psychological stressors. Review Office was of the view that by August 21, 2002, 12 weeks post-injury, that any psychological affects of the motor vehicle accident would have been resolved. Review Office was also of the view that the claimant's ongoing depressive symptoms were related to the significant employer/employee relationship which is documented on file.

Review Office agreed with the decisions issued by primary adjudication and was of the opinion that a cause and effect relationship did not exist between the May 22, 2002 motor vehicle accident and any claim for wage loss benefits or treatment beyond August 21, 2002. Any potential loss of earning capacity beyond August 21, 2002, was due to an underlying psychological condition and its exacerbation through the work environment according to Review Office. On July 15, 2003, the claimant's union representative disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who was involved in an automobile accident, in May 2002, while in the course of her employment. As a result, she suffered physical injuries to her neck and sternum, for which she received compensation benefits. By August 2002, it had been determined that she had recovered sufficiently to return to work and, thus, benefits were terminated. This decision was upheld by Review Office. She then appealed to the Appeal Commission.

For her appeal to be successful, the Appeal Panel would have to determine that she continued to have a loss of earning capacity, beyond August 21, 2002, as a result of injuries which arose out of and in the course of her employment. We have so determined.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant, her union representative and a representative of her employer.

What was particularly at issue was whether or not her depression was causally related to her workplace accident. In concluding that her compensable injury caused an aggravation of her pre-existing depression, we took note of the following evidence:

• Recovery from the claimant's physical injuries progressed at a reasonably good pace.
• On July 10, 2002, both her family doctor and treating physiotherapist signed off on a return to work plan, which provided that, from August 6 - 30, 2002, she should work three full days a week; to be increased to four days from August 30 to mid-September.
• In a progress report, dated July 10, her doctor notes that she is taking medication for depression.
• In a progress report, dated August 7, her doctor wrote that she would be able to return to regular duties on August 19. We note that this contradicts what is in the return to work plan he signed.
• In a progress report, dated August 14, after the claimant had returned to work for a few days, her doctor wrote that she now had "signs and symptoms of acute depression." He also wrote that the "accident has exacerbated depressive symptoms mildly, but work stress is main contributing factor." He added that she was not able to work at that time.
• In October 2002, the claimant was referred, by her union representative, for a psychiatric examination. The psychiatrist noted:
  • The claimant had a history of depression which pre-dated the accident.
  • At the time of the examination, she was "in the midst of a major depressive episode."
  • "The motor vehicle accident of May 22, 2002 appears to have been the precipitant to this depressive episode, with [the claimant] experiencing a significant diminution in mood and associated neurovegetative symptoms in the aftermath of the motor vehicle accident."

We have chosen to give considerable weight to the findings of this psychiatrist.

Based on our consideration of this evidence, we have concluded that the claimant experienced an aggravation of her pre-existing depression as a result of the workplace accident.

Pursuant to Board Policy No. 44.10.20.10, "Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's Compensation Board will accept responsibility for the full injurious result of the accident."

Thus, the claimant is entitled to benefits so long as the depression was disabling her from returning to work and causing a loss of earning capacity.

In that regard, we note that the psychiatrist believed that with proper treatment, she should recover in about three months. In testimony before us, it was reported that her doctor determined her fit to return to work on January 6, 2003. Following discussions between her employer and her union representative, she returned to work on February 17, 2003.

The employer's representative asked us to reject the appeal on two other grounds: that "stress" is specifically excluded as a compensable psychiatric condition; and that by failing to attend for an examination by a board medical specialist, she made herself ineligible for benefits.

In respect of the first argument, we have noted above that her family doctor noted that work stress was the main factor contributing to her depressive state. However, we are persuaded by the report of the psychiatrist that the principal cause of her increased depression was the workplace accident.

In respect of the second, the employer's representative noted that section 21 of The Workers Compensation Act allows for benefits to be suspended if a claimant fails to submit to a medical examination arranged by the board. In that regard, the board had arranged for the claimant to be examined by a board psychiatric consultant on January 27, 2003. By that date, her own doctor had already deemed her to have recovered from her depressive episode. As a result, she saw no need for a further exam and declined to attend.

We are of the view that the claimant should have attended the appointment with the board psychiatrist. As noted in the file, the principal purpose of this appointment was to attempt to determine whether or not there was a link between the workplace accident and the claimant's depression. Had she attended the examination, this matter may have been resolved more expeditiously. However, having said that, we do not feel that this is a case in which failure to attend an appointment warrants suspension or termination of benefits. She had already been examined by a psychiatrist, who recommended a course of treatment which proved to be successful. Furthermore, by the time of the appointment, she had been deemed to have recovered and was awaiting the start of a return to work program, which also proved successful.

In summary, we have concluded that there is sufficient evidence to establish that, as a result of the workplace accident in May 2002, the claimant suffered an aggravation of her pre-existing depression to a degree that caused a loss of earning capacity. Thus, she is entitled to benefits beyond August 21, 2002.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
J. MacKay, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 5th day of January, 2004