The Appeal CommissionThe Workers Compensation Act of Manitoba

Counsel acting on behalf of the claimant called a psychologist as his first witness. The psychologist testified that he had contact with the claimant on two occasions. The first was in 1985 when he was asked by the claimant’s then vocational counselor to assess the claimant with respect to “a specific issue of interest, aptitudes and skill, to look at his vocational direction”. The witness went on to state further that “Mr. [the claimant] was under care of a psychiatrist and I was not involved in treating him or actually assessing or getting into his psychological or psychiatric sequela at that point.”

The witness’s next involvement with the claimant came in 2003 when he was asked by counsel to assess the claimant as to the specific issue of potential ongoing sequela from the 1984 workplace incident. The psychologist interviewed the claimant and had him complete a number of psychological tests. It was incontrovertible to the witness that the claimant continued to be symptomatic from the workplace episode.

Q. So he’s still symptomatic?

R. And in my opinion, as well, this was a life altering event for him. It was a watershed event for him. It’s an event that still plays a role, intermittent in presence and variable in intensity, in his life. But it’s still a very powerful event. When Mr. [the claimant] processed it with me, it’s obvious that it elicits a great amount of anguish, distress, almost to the point where he was non-functional in the interview I had with him.

He has clearly continuing residual post traumatic symptoms. In major line of duty or life events that are highly traumatic, the literature is very clear that while people can, over time, with motivation, redevelop a lifestyle, move on in life, they remain symptomatic and events even decades previously still can be very powerful. He is functional. He has a family, he interacts with them. He is no longer as psychiatrically disabled as he was in the years post event. But he still has residual symptoms through to current, and that was generally the findings of my report. He has residual symptoms today. He developed two conditions that I would believe were directly related to the workplace murders, post traumatic stress disorder, as well as a depressive disorder. And there’s been general remission of the depressive disorder, as well.

We accept the psychologist’s evidence that the claimant has not fully recovered from the post traumatic stress disorder, which arose out of his compensable incident in July of 1984. However, we find based on the weight of evidence that the claimant was not, on a balance of probabilities, temporarily totally disabled as a consequence of this event. In this regard, we note the absence of medical opinion either establishing or confirming continued active medical (psychological/psychiatric) treatment from 1987 to 2000. According to the psychologist’s 1985 assessment, the claimant’s “cognitive skills [were] well within the average range and thus, he [had] the potential to be able to profit from many forms of training experiences, both on-the-job and institutional. It was clear to me that he has high motivation at this time to return to the work force …”. The evidence further confirms that the claimant was in a position to receive and in fact did receive vocational rehabilitation assistance during which time he was able to work full time at a different employment vocation.

Section 24(21) of The Workers Compensation Act (the Act), which was in force at the time of the claimant’s compensable incident states as follows:

“The board may provide for any injured workman, whose earning capacity in his previous occupation has been permanently impaired by the injury, such vocational training as may be deemed advisable for the purpose of preparing the injured workman for another occupation to which he may seem adapted and which is likely to increase his future earning capacity; and to that end the board may contract with an institution or institutions furnishing such vocational training, and may adopt rules and regulations for that purpose and for the payment of the training.”

It should be noted that the language used in this section is permissive in nature and as such the provision of rehabilitation benefits and services by the WCB is purely discretionary. The evidence establishes that the claimant received rehabilitation benefits and services, which eventually led to his gaining sustainable and different work with an alternate employer.

Normally in most cases, an injured worker is entitled to continued vocational rehabilitation assistance until such objectives as helping the worker return to suitable employment and at a salary level that he/she was earning prior to the compensable incident have been accomplished. However, in the particular case at hand, the claimant consciously declined his entitlement to further ongoing benefits by virtue of the unequivocal conduct on the part of himself and his spouse:

• The claimant quit his established rehabilitation program by resigning his position (on the job training program) with the alternate employer effective January 19^th, 1987 and indicating his intention to apply for a 10 month electrical program at a community college.
• The claimant withdrew his entire pension in 1987. The couple decided to use these funds together with severance pay to cover their living expenses and as well to promote the wife’s becoming the primary income earner by funding her further education as a registered nurse (i.e. Bachelor of Nursing degree).
• The claimant and his wife made the joint decision in 1988 to start to raise a family with the intention that the claimant would assume the duties of the at-home primary parent with respect to childcare.
• On or about December 28^th, 1988, the claimant’s wife contacted the WCB by telephone and explicitly advised that they did not want to have anything more to do with the WCB – “No communications what so ever.”
• It was a joint decision by the claimant and his wife to reject any and all medical/psychological intervention during the period from 1987 to 2003, when the claimant began receiving treatment from the psychologist, who testified in these proceedings as an expert witness.

Counsel for the claimant was asked to outline the benefits that he was seeking on behalf of his client from the WCB. He requested the following: full wage loss benefits from June 15^th, 1988 up to the day when he returned to full time duties with the accident employer in June of 1998, medical aid, Permanent Partial Impairment Award (PPI) for post traumatic stress disorder and partial wage loss from June 1998.

We find in accordance with the evidence that the claimant is not entitled to full or any wage loss benefits during the period in question to (June 1998), as he for various reasons voluntarily removed himself from the workforce. As to the claim for medical aid, we accept the psychologist’s evidence that the claimant may require further therapy on an intermittent basis. We find that this benefit would only be retroactive to the year 2003 when the claimant began a course of treatment with the psychologist. The entitlement to ongoing medical aid does not, however, include either the psychiatric assessment of the claimant conducted in 2000 or the initial assessment conducted by the treating psychologist in 2003. In our view, these sessions should not be covered, because they were arranged not for the purpose of treatment, but rather, for the purpose of advocacy.